UNCLASSIFIED (U)

9 FAM 302.8 

(U) Public Charge - INA 212(a)(4)

(CT:VISA-1258;   03-25-2021)
(Office of Origin: CA/VO)

(U) Note: The U.S. District Court for the Southern District of New York, in Make the Road New York et al v. Blinken et al, issued a preliminary injunction on July 29, 2020, enjoining the Department of State's October 2019 interim final rule and January 2018 FAM guidance on public charge.  In light of the court injunction, until further notice, you should apply the following guidance, which tracks the FAM guidance that the Department applied prior to January 2018.  In addition, on February 2, 2021, President Biden signed EO 14012, directing the Department, the Department of Homeland Security and the Justice Department to review their public charge policies in consultation with other relevant agencies, including the Departments of Agriculture, Health and Human Services, and Housing and Urban Development.  The Department is working with the interagency to evaluate the public charge ground of inadmissibility as required in EO 14012, and will issue further guidance if that review leads to changes in operational policy.

9 FAM 302.8-1  (U) Statutory and Regulatory Authority

9 FAM 302.8-1(A)  (U) Immigration and Nationality Act

(CT:VISA-1258;   03-25-2021)

(U) INA 101(a)(15) (8 U.S.C. 1101(a)(15)); INA 101(b)(1)(E) (8 U.S.C. 1101(b)(1)(E)); INA 102 (8 U.S.C. 1102); INA 203(g) (8 U.S.C. 1153(g)); INA 212(a)(4) (8 U.S.C. 1182(a)(4)); INA 212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)); INA 213 (8 U.S.C. 1183); INA 213A (8 U.S.C. 1183a); INA 221(g) (8 U.S.C. 1201(g)); INA 245 (8 U.S.C. 1255); INA 248 (8 U.S.C. 1258); INA 316 (8 U.S.C. 1427); INA 317 (8 U.S.C. 1428); INA 319(b)(1) (8 U.S.C. 1430(b)(1)); INA 320 (8 U.S.C. 1431).

9 FAM 302.8-1(B)  (U) Code of Federal Regulations

(CT:VISA-1258;   03-25-2021)

(U) 8 CFR 205.1(a)(3)(i)(C); 8 CFR 316.20; 8 CFR 213a; 22 CFR 40.41(currently enforcement, application and implementation of this regulation is enjoined by the U.S. District Court for the Southern District of New York, in Make the Road New York et al v. Blinken et al).

9 FAM 302.8-1(C)  (U) United States Code

(CT:VISA-1133;   08-05-2020)

(U) 8 U.S.C. 1641(c); 28 U.S.C. 1746; 42 U.S.C. 9902(2).

9 FAM 302.8-1(D)  (U) Public Laws

(CT:VISA-1133;   08-05-2020)

(U) Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193.

9 FAM 302.8-2  (U) PUBLIC CHARGE

9 FAM 302.8-2(A)  (U) Grounds

(CT:VISA-1258;   03-25-2021)

(U) INA 212(a)(4) provides that an applicant who, in your opinion, at the time of application for a visa, for admission, or adjustment of status, is likely at any time to become a public charge after admission to the United States is inadmissible and, therefore, ineligible for a visa.

9 FAM 302.8-2(B)  (U) Application

9 FAM 302.8-2(B)(1)  (U) Definition of Public Charge

(CT:VISA-1258;   03-25-2021)

a. (U) In General: 

(1)  (U) For the purpose of determining ineligibility under INA 212(a)(4), the term "public charge" means that an alien, after admission into the United States, is likely to become primarily dependent on the U.S. Government for subsistence. This means either:

(a)  (U) Receipt of public cash assistance for income maintenance (see paragraph b below); or

(b)  (U) Institutionalization for long-term care at U.S. Government expense (see paragraph d below).  Short-term confinement in a medical institution for rehabilitation does not constitute primary dependence on the U.S. Government for subsistence.

(2)  (U) When considering the likelihood of an applicant becoming a “public charge,” you must take into account, the totality of the applicant's circumstances at the time of visa application.  (See 9 FAM 302.8-2(B)(3) below.)

(3)  (U) In determining ineligibility under INA 212(a)(4) a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of a qualifying affidavit of support, in accordance with INA 213A, if required, will determine whether an individual is a public charge.

b. (U) Defining Public Cash Assistance:  In the "public charge" context, "public cash assistance” for income maintenance includes:

(1)  (U) Supplemental security income (SSI);

(2)  (U) Cash temporary assistance for needy families (TANF), but not including supplemental cash benefits or any non-cash benefits provided under TANF; and

(3)  (U) State and local cash assistance programs that provide for income maintenance (often called state general assistance).

(4)  (U) These types of assistance are sometimes also referred to as “means tested benefits.” 

c.  (U) Benefits Not Considered Public Cash Assistance For Income Maintenance: 

(1)  (U) There are many forms of U.S. Government assistance that an applicant may have accepted in the past, or that you may reasonably believe an applicant might receive after admission to the United States, that are of a non-cash and/or supplemental nature and would not create an ineligibility under INA 212(a)(4).  Certain programs are funded with public funds for the general good, such as public education and child vaccination programs, etc., and are not considered to be benefits for the purposes of INA 212(a)(4).  Although the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 prohibit aliens from receiving many kinds of public benefits, it specifically exempts from this prohibition several of the public benefits indicated below.  Neither the past nor possible future receipt of such non-cash or supplemental assistance may be considered in determining whether an applicant is likely to become a public charge.  The benefits that are not to be considered as public cash assistance or income include, but are not limited to:

(a)  (U) The Food Stamp Program;

(b)  (U) The Medicaid Program (other than payments under Medicaid for long-term institutional care);

(c)  (U) The Child Health Insurance Program (CHIP);

(d)  (U) Emergency medical services;

(e)  (U) The Women, Infants and Children (WIC) Program;

(f)   (U) Other nutrition and food assistance programs;

(g)  (U) Other health and medical benefits;

(h)  (U) Child-care benefits;

(i)   (U) Foster care;

(j)   (U) Transportation vouchers;

(k)  (U) Job training programs;

(l)   (U) Energy assistance, such as the low-income home energy assistance program (LIHEAP);

(m) (U) Educational assistance, such as Head Start or aid for elementary, secondary, or higher education;

(n)  (U) Job training;

(p)  (U) In-kind emergency community services, such as soup kitchens and crisis counseling;

(q)  (U) State and local programs that serve the same purposes as the Federal in-kind programs listed above; and

(r)   (U) Any other Federal, State, or local program in which benefits are paid in-kind, by voucher or by any means other than payment of cash benefits to the eligible person for income maintenance.

(2)  (U) In all cases, the underlying nature of the program is the key to determining whether it falls within the scope of "cash assistance" that might trigger ineligibility based on "public charge" grounds (i.e., is the program intended to be a primary source of cash for income maintenance?).  Some programs which provide cash benefits for special purposes are supplemental and not for income maintenance.  The programs may include such help as transportation or child care benefits paid in cash, or one-time emergency payments made under TANF to avoid the need for on-going cash assistance.  None of these forms of assistance would create an ineligibility under INA 212(a)(4).

(3)  (U) Cash benefits based on prior employment (e.g., social security payments, old age survivor's disability insurance (OASDI), U.S. Government pension benefits, and veterans benefits) are not considered public cash assistance for the purposes of a public charge determination under INA 212(a)(4).

d. (U) Institutionalization for Long Term Care:

(U) For INA 212(a)(4) purposes, "institutionalization for long-term care" refers to care for an indefinite period of time for mental or other health reasons, rather than temporary rehabilitative or recuperative care even if such rehabilitation or recuperation may last weeks or months.

9 FAM 302.8-2(B)(2)  (U) Applying INA 212(a)(4) to Immigrants

(CT:VISA-1258;   03-25-2021)

a. (U) Determining Likelihood of Inadmissibility:  

(1)  (U) INA 212(a)(4) applies to all aliens seeking entry into the United States, with a few exceptions (see 9 FAM 302.8-2(B)(4) below).  With respect to immigrant visa applicants, the amount and type of evidence generally required is much greater than that required in a nonimmigrant case.  In all cases, however, you must base the determination of the likelihood at any time after admission that the applicant will become a public charge based on an assessment of present circumstances.  You may not refuse a visa on the basis of "what if" type considerations (e.g., "what if the applicant loses the job before reaching the intended destination," or "what if the applicant is faced with a medical emergency.").  Instead, you must assess only the "totality of the circumstances" existing at the time of visa application.  (See 9 FAM 302.8-2(B)(3) below.)  In short, you must be able to point to circumstances which make it not merely possible, but likely, that the applicant will become a public charge, as defined in 9 FAM 302.8-2(B)(1), above.  "Any applicant determined to be ineligible pursuant to INA 212(a)(4) in light of the totality of their circumstances, whether or not he or she is required to submit an I-864, should be refused using the refusal code "4".  For more information on entering refusals see 9 FAM 303.3-4(A).

(2)  (U) "Totality of circumstances” cannot serve as the basis for overcoming Section 212(a)(4) if the applicant requires an affidavit of support and the affidavit of support is not sufficient.

b. (U) Effect of Form I-864 on Public Charge Determinations:  A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to satisfy the INA 212(a)(4) requirements.  In determining whether the INA 213A requirements creating a legally binding affidavit have been met, the intent of a qualified sponsor to actually provide support is not a factor, if the person meets the definition of a sponsor and has verifiable resources, because the affidavit is enforceable regardless of the sponsor’s actual intent.  Consequently, you should not consider sponsor intent, unless there are significant public charge concerns relating to the specific case, such as if the applicant appears likely to have significant health-related costs and likely is unable to work, for example, because the person is of advanced age or has a serious medical condition.  If you have concerns about whether a particular Form I-864 may be “fraudulent”, you should contact CA/FPP for guidance. 

c.  (U) For information on who is required to submit an I-864 Affidavit of Support and how to review an I-864, see 9 FAM 601.14

9 FAM 302.8-2(B)(3)  (U) Determining “Totality of Circumstances”

(CT:VISA-1258;   03-25-2021)

a. (U) In General: 

(1)  (U) In making a determination whether an applicant is ineligible for a visa under INA 212(a)(4)(B), you must consider at a minimum the applicant's:

(a)  (U) Age;

(b)  (U) Health;

(c)  (U) Family status;

(d)  (U) Assets, resources, and financial status; and;

(e)  (U) Education or skills.

(2)  (U) These factors, and any other factors you believe are relevant in a specific case, will make up the "totality of the circumstances" that you must consider when making a public charge determination.  As noted in 9 FAM 302.8-2(B)(2), a properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis.  Nevertheless, the factors cited above could be given consideration in an unusual case in which a Form I-864 has been submitted and should be considered in cases where a Form I-864 is not required.

b. (U) Consideration of Current or Prior Receipt of Public Assistance: 

(1)  (U) The public charge provisions of INA 212(a)(4) are generally considered to be forward looking.  You must, therefore, base the determination of the  likelihood that the applicant will become a public charge based on the assessment of the applicant's present circumstances.  You may not refuse a visa on the basis of "what if" type considerations that are not tied to present circumstances (e.g., "what if the applicant loses the job before reaching the intended destination," or "what if the applicant is faced with a medical emergency").  Instead, you must assess only the "totality of the circumstances" existing at the time of visa application.  Past or current receipt of cash benefits for income maintenance by a family member of the visa applicant may be factored into the applicant's case only when such benefits also constitute(d) the primary means of subsistence of the applicant.

(2)  (U) Past or current receipt of other types of benefits, such as those listed in 9 FAM 302.8-2(B)(1)(c) must not be considered.  Further, you should not try to find out whether an applicant has previously or is currently receiving benefits such as those listed in 9 FAM 302.8-2(B)(1)(c).

(3)  (U) There is no provision in the law to indicate that the receipt of means-tested benefits by the sponsor would, in itself, result in a finding of ineligibility for the applicant under INA 212(a)(4).  The sponsor's reliance on such benefits, however, would clearly be an important factor in considering whether the applicant might have to become a public charge.  If the sponsor or any member of his or her household has received public means-tested benefits within the past three years, you must review fully the sponsor's current ability to provide the requisite level of support, taking into consideration the kind of assistance provided and the dates received.  You must review carefully Form I-864 or Form I-134 and all attachments submitted with Form I-134, as well as evidence of the sponsor's current financial circumstances, in such cases.

c.  (U) Health:  You must take into consideration the panel physician's report regarding the applicant's health, especially if there is a prognosis that might prevent or ultimately hinder the applicant from maintaining employment successfully or indicate the likelihood that the applicant will require institutionalization. 

d. (U) Family Status:  You should consider the marital status of the applicant and the number of dependents for whom he or she would have financial responsibility. 

e. (U) Applicant’s Age:  You should consider the age of the applicant.  If the applicant is under the age of 16, he or she will need the support of a sponsor.  If the applicant is 16 years of age or older, you should consider what skills the applicant has to make him or her employable in the United States. 

f.  (U) Education and Work Experience:  You should review the applicant's education and work experience to determine if these are compatible with the duties of the applicant's job offer (if any).  You should consider the applicant's skills, length of employment, and frequency of job changes.  Even if a job offer is not required, you should assess the likelihood of the applicant's ability to become or remain self-sufficient, if necessary, within a reasonable time after entry into the United States.  (See paragraph h below.) 

g. (U) The Applicant's Financial Resources: 

(1)  (U) Applicants Subject to INA 212(a)(4)(C) or INA 212(a)(4)(D)A visa applicant who is required to present a Form I-864, will generally not need to have extensive personal resources available unless considerations of health, age, skills, etc., suggest that the likelihood of his or her ever becoming self-supporting is marginal at best.  In such cases, the degree of support that the affiant will be able and likely to provide becomes more important than in the average case. 

(2)  (U) Evidence of Support When Form I-864 Not Required:

(a)  (U) An applicant relying solely on personal financial resources for support for him or herself and family members after admission into the United States should be presumed inadmissible for a visa under INA 212(a)(4) unless his or her income (including any to be derived from prearranged employment) will equal or exceed the poverty guideline level for the applicant and accompanying family members.  You should refer to 9 FAM 302.8-2(B)(17), Poverty Income Guidelines, published by the Department of Health and Human Services (HHS).

(b)  (U) Normally, all accompanying dependent family members and other dependent family members already in the United States are considered to be within the family unit for purposes of applying the poverty income guidelines.  However, an applicant seeking to join family members in the United States, who are already receiving public assistance, may still be determined to overcome the public charge provision if the applicant's prospective income will exceed the poverty income guideline table for a single person.  In this instance only, it does not matter that the applicant's prospective income will be below that shown in the poverty income guideline table for a family of four.  It is quite possible that the admission of the applicant and the applicant's income in the United States may permit the lowering of the public assistance benefits the family members now receive.

(c)  (U) You should not rely exclusively on the submission of documents to determine whether an applicant is inadmissible under INA 212(a)(4).  Repeated requests for documents in an effort to resolve every small doubt should be avoided.  There is a limit to the value of documents in a situation in which the applicant must satisfy the officer of his or her future activities, intentions, and prospects.

(d)  (U) You should make every effort to inform applicants in advance of the visa interview of the required support documents.  You should be in a position to make a determination relative to INA 212(a)(4) at the end of the initial visa interview, assuming that the applicant has made reasonable efforts to submit the evidence originally requested.  (For example, in cases where a Form I-864 is required, a determination under INA 212(a)(4) cannot be made until that document and related information have been executed and considered by you.)  Applicants who are not likely to overcome the public charge provision even after the presentation of additional evidence should be refused under INA 212(a)(4) instead of INA 221(g).  Adequate time and effort spent prior to and during the initial interview can save work for the post and the applicant in this respect.

(e)  (U) An applicant may establish the adequacy of financial resources by submitting evidence of bank deposits, ownership of property or real estate, ownership of stocks and bonds, insurance policies, or income from business investments sufficient to provide for his or her needs, as well as those of any dependent family member, until suitable employment is located.  (The amount sufficient will depend on the applicant's age, physical condition, and family circumstances and size.)

(i)     (U) Bank Deposits—Applicants relying on bank deposits to meet the public charge requirements should present as evidence a letter signed by a senior officer of the bank over the officer's title, showing:

(A)    (U) The date the account was opened;

(B)    (U) The number and amount of deposits and withdrawals during the last 12 months;

(C)    (U) The present balance.  This information may prevent attempted abuse such as an initial deposit of a substantial sum of money being made within a relatively short time prior to the immigrant visa application; and

(D)    (U) How the money, if in a foreign bank in foreign currency, is to be transferred to the United States.

(ii)    (U) Real estate investments—Evidence of property ownership may be in the form of a title deed or equivalent or certified copies.  The applicant must satisfy you as to the plans for disposal or rental of such property and the manner in which the income from the property (if abroad) is to be transferred to the United States for the applicant's support.

(iii)    (U) Stocks and Bonds—Evidence of income from these sources should indicate present cash value or expected earnings and, if the income is derived from a source outside the United States, a statement as to how the income is to be transferred to the United States.

(iv)   (U) Income from business investments; or

(v)    (U) Insurance policies.

(f)   (U) An applicant may also support a finding that he or she meets the public charge requirements by:

(i)     (U) Evidence of employment of a permanent nature in the United States that will provide an adequate income.  A certified Labor Department  Form ETA-9089, Application for Permanent Employment Certification, or Form ETA-750-Part A & B, Application for Alien Employment Certification, will show this if the applicant is subject to the provisions of INA 212(a)(5)(A).  If the labor certification provisions do not apply, the employer may submit a notarized letter of employment, in duplicate, on letterhead stationery attesting to the offer of prearranged employment; or

(ii)    (U) Assurance of support by relatives or friends in the United States.

(iii)    (U) Sufficient support from a combination of the above sources.

(3)  (U) Use of Form I-134, Affidavit of Support: 

(a)  (U) Because INA 212(a)(4)(C) and INA 213A require the use of Form I-864 for so many classes of immigrants, the use of Form I-134, has been reduced considerably.  Nevertheless, there still are circumstances when Form I-134 will be beneficial.  This affidavit, submitted by the applicant at your request, is not legally binding on the sponsor and should not be accorded the same weight as Form I-864.  Form I-134 should be given consideration as one form of evidence, however, in conjunction with the other forms of evidence mentioned below.

(b)  (U) If any of the following applicants need an Affidavit of Support to meet the public charge requirement, they must use Form I-134, as they are not authorized to use Form I-864:

(i)     (U) Returning resident aliens (SBs);

(ii)    (U) Diversity visa applicants (DVs); and

(iii)    (U) Fiancé(e)s (K-1s or K-3s).

(c)  (U) The simple submission of Form I-134, however, is not sufficient to establish that the beneficiary is not likely to become a public charge.  Although the income requirements of Form I-864 do not apply in such cases (e.g., the 125 percent minimum income), you must make a thorough evaluation of other factors, such as:

(i)     (U) The sponsor's motives in submitting the affidavit;

(ii)    (U) The sponsor's relationship to the applicant (e.g., relative by blood or marriage, former employer or employee, schoolmates, or business associates);

(iii)    (U) The length of time the sponsor and applicant have known each other;

(iv)   (U) The sponsor's financial resources; and

(v)    (U) Other responsibilities of the sponsor.

(vi)   (U) When there are compelling or forceful ties between the applicant and the sponsor, such as a close family relationship or friendship of long standing, you may favorably consider the affidavit.  On the other hand, an affidavit submitted by a casual friend or distant relative who has little or no personal knowledge of the applicant has more limited value.  If the sponsor is not a U.S. citizen or lawful permanent resident (LPR), the likelihood of the sponsor's support of an immigrant visa (IV) applicant until the applicant can become self-supporting is a particularly important consideration.

(d)  (U) The degree of corroborative detail necessary to support the affidavit will vary depending upon the circumstances.  In immigrant cases, however, the sponsor's statement should include:

(i)     (U) Information regarding income and resources;

(ii)    (U) Financial obligations for the support of immediate family members and other dependents;

(iii)    (U) Other obligations and expenses; and

(iv)   (U) Plans and arrangements made for the applicant's support in the absence of a legal obligation toward the applicant.

(e)  (U) To substantiate the information regarding income and resources, the sponsor should attach to the affidavit a copy of the latest Federal income tax return filed prior to the signing of the Form I-134, including all supporting schedules.  If you determine that the tax return and/or additional evidence in the file do not establish the sponsor's financial ability to carry out the commitment toward the immigrant for what might be an indefinite period of time, or there is a specific reason (other than the passage of time) to question the veracity of the income stated on the Form I-134 or the accompanying document(s), you should request additional evidence (i.e., statement from an employer showing the sponsor's salary and the length and permanency of employment, recent pay statements, or other financial data).

(f)   (U) If the sponsor has a well-established business and submits a rating from a recognized business rating organization, you do not need to insist on a copy of the sponsor's latest income tax return or other evidence.

(4)  (U) Surety Bonds: 

(a)  (U) Submission to the Department:  In rare cases where you have to consider the use of a bond in either a NIV or IV case, you must consult with L/CA for assistance.   The procedure for posting a bond is the same for IV and NIV cases.  In cases where the applicant appears to be otherwise unable to meet the public charge requirements, the sponsor may wish to post an indemnity bond pursuant to INA 213.  Although the posting of bond does not, in itself, establish that an applicant is not likely to become a public charge, it might be sufficient, depending upon the circumstances in a particular case, to make possible a finding that the applicant overcomes INA 212(a)(4).  The bond should be used sparingly and only in borderline cases.  When an applicant appears likely on the facts to become a public charge (for example because of an acute physical condition and lack of adequate resources), the filing of a bond would not serve any purpose if the needs of the applicant would easily overcome the value of the bond.

(b)  (U) The specifics of such a bond and the means of posting one are:

(i)     (U) The U.S. sponsor would file the Form I-352, Immigration Bond, with the Department of Homeland Security.  Either a district director or, in some cases, a regional director, will then review the I-352;

(ii)    (U) If a family is proceeding as a unit to the United States, a bond may be required for more than one member of the family.  You should specify the name(s) of the person(s) for whom a bond is being requested.  If only the principal applicant is immigrating immediately, the number of remaining family members should not be taken into account until they are applying for visas;

(iii)    (U) The bond is canceled when the alien dies, leaves the United States permanently, or is naturalized.  The Department of Homeland Security/U.S. Citizenship and Immigration Services (DHS/USCIS) may, however, cancel a bond at any time if the applicant has not become and does not appear likely to become a public charge five years after the entry into the United States.  The bond will be reviewed for cancellation upon the filing of Form I-356, Request for Cancellation of a Public Charge Bond.  The district director will then render a decision to breach or cancel the bond after review of the evidence supporting the form.

(iv)   (U) You should inform the applicant, in these cases, that DHS/USCIS may require a larger bond to be posted at the time of application for admission; and

(v)    (U) The visa issued in such cases must carry a notation that the bond was posted and the notification (or a certified copy thereof) from DHS that the bond had been posted must also be attached to the visa.

h. (U) Employment Considerations and the I-864: 

(1)  (U) Effect of Applicant's Own Employment in the United States:  You may not consider an offer of employment to an applicant in place of a required Form I-864 in cases where the I-864 is required.  You may consider the applicant's employment in determining whether the 125 percent minimum income requirement has been met in a visa case only if the beneficiary of Form I-864 has worked in the same job he or she will have after entry as an immigrant.  Under these circumstances, the applicant's income may be considered part of the sponsor's income.  If the above criteria are met, and any of the applicant's family members will be accompanying him or her to the United States, the principal applicant in such cases may provide Form I-864A, Contract between Sponsor and Household Member, on their behalf to help reach the additional income level that will be required.

(2)  (U) Information Contained on Approved Labor Certification:  Only a small percentage of employment-based immigrants will require an I-864.  See 9 FAM 302.8-2(B)(2) paragraph b above.  The majority of employment-based immigrants who do not require an I-864 have been offered prearranged employment and are immigrating based on that offer of employment.  They are therefore subject to the labor certification requirement under INA 212(a)(5) (see 22 CFR 40.51 and 9 FAM 302.1-5(B)).  You may assume, that in cases such as this, when a labor certification is granted, that the position is permanent and the prevailing wage has been met.

9 FAM 302.8-2(B)(4)  (U) Public Charge Considerations in Nonimmigrant Cases

(CT:VISA-1258;   03-25-2021) 

a. (U) Nonimmigrants and INA 212(a)(4): 

(1)  (U) All NIV applicants, except those mentioned in 9 FAM 302.8-2(B)(4) below, must satisfy you that they are not likely to become a public charge.

(2)  (U) Additionally, since INA 212(a)(4) can be overcome by a non-immigrant or immigrant visa applicant at any time, if an NIV applicant cannot overcome INA 214(b), you should not expend resources on pursuing a possible INA 212(a)(4) ineligibility.

(3)  (U) In determining admissibility under INA 212(a)(4), you must be aware of the differences in the requirements imposed on a would-be immigrant as opposed to a nonimmigrant applicant.  The amount and type of evidence generally required in an immigrant visa case is much greater than that which is required in a nonimmigrant visa case.  Evidence that establishes the applicant is entitled to a nonimmigrant classification is generally sufficient to meet the requirements of INA 212(a)(4), absent evidence that gives you reason to believe that a public charge concern exists.

b. (U) Additional Evidence of Support in Nonimmigrant Visa Cases: 

(1)  (U) Your extensive inquiry into the question of the possible public charge ineligibility of a nonimmigrant visa (NIV) applicant should be rare if the applicant is otherwise qualified for the visa category for which he or she has applied.  Ordinarily, a nonimmigrant would be required to provide evidence on the question of public charge only when there are clear indications, based on the usual evidence required to support the application, that the applicant does not have sufficient resources to cover all costs associated with the travel and stay in the United States.

(2)  (U) However, if the evidence submitted to support eligibility for nonimmigrant status submitted does not indicate adequate provision for the applicant's support while in the United States and for the return abroad, you may request specific financial evidence.  Such evidence may take the form of a letter of invitation, Form I-134, from a sponsor that clearly indicates the sponsor's willingness to act in such capacity and the extent of financial responsibility undertaken for the applicant, or a surety bond (See 9 FAM 302.8-2(B)(3) paragraph g(4).

(3)  (U) Unless you are satisfied that the sponsor's financial position is sound, the affidavit of support (AOS) should contain evidence of the sponsor's ability to carry out the commitment.  Such AOS’s for NIV are not legally-binding contracts, and it is at your discretion to determine if such evidence would assist an NIV applicant in overcoming a finding of ineligibility because of the likelihood of becoming a public charge after entering the United States.  If the applicant is proceeding to the United States for a brief visit, the presentation of evidence of the sponsor's financial condition may not be necessary.

c.  (U) Unwarranted Requirements:  Under U.S. law, no individual can make binding assertions about another person's possible future actions.  If you determine that a Form I-134 is necessary, the sponsor (meaning the individual who has completed the Form I-134) is not required to declare that the applicant will neither seek nor accept employment in the United States nor apply for permanent residence.  Under certain circumstances, nonimmigrants are permitted to work or, if not permitted to work at the time of admission, they may be permitted to work after their nonimmigrant classification has been changed under INA 248.  Moreover, a nonimmigrant in the United States is entitled to apply for adjustment of status under INA 245 if eligible therefore. 

d. (U) Applicant’s Government Requiring Evidence of Support:  Some foreign governments require their nationals to present evidence of support from a U.S. sponsor prior to the issuance of a passport or exit permit.  Such documentation is usually required in the form of an AOS guaranteeing that, while in the United States, the applicant will not become a burden on the applicant's country.  Consular officers who are serving in a country with this requirement should not automatically require all visa applicants to submit a copy of the support evidence submitted to the applicant's government.  However, in some instances, you may decide requesting such evidence would be advisable.

e. (U) Applicants Seeking Admission For Medical Treatment:  If the personal resources of an applicant seeking admission to the United States for medical treatment are not sufficient or are unavailable for use outside the country of residence, you may accept a sponsorship affidavit.  The affidavit should include explicit information regarding the arrangements made for the applicant's support, medical care, and, if applicable, assurance that a bond will be posted if required by DHS/USCIS.

f.  (U) Applicants Seeking K Nonimmigrant Visas:  See 9 FAM 302.8-2(B)(2) paragraph d above.  

g. (U) Surety Bonds:  In cases where the applicant is otherwise eligible, including under INA 214(b), the procedures for posting bond for NIVs are the same as those for immigrant visas (IV).  (See 9 FAM 302.8-2(B)(3) paragraph g(4).) 

9 FAM 302.8-2(B)(5)  (U) INA 221(g) versus INA 212(a)(4) Refusals

(CT:VISA-1258;   03-25-2021)

(U) The determination of whether INA 221(g) or INA 212(a)(4) is the appropriate ground of refusal is determined by whether you have decided that you have enough information to make a finding of whether the applicant is ineligible under INA 212(a)(4).

(1)  (U) For example, if Form I-864 is submitted without a copy of the latest Federal income tax return filed prior to the signing of the Form I-864, then this is a documentary problem; the refusal should be INA 221(g).

(2)  (U) In contrast, if the AOS is technically complete, but does not reflect sufficient financial resources, even after any possible joint sponsors have submitted an AOS; or the applicant has no Form I-864, because the petitioner or sponsor does not meet the qualifying criteria set forth in INA 213A, that is a substantive problem and you must refuse the visa under INA 212(a)(4).

(3)  (U) You should note that applications refused under INA 212(a)(4), unlike those refused under INA 221(g), are not subject to termination under INA 203(g).

9 FAM 302.8-2(B)(6)  (U) Aliens Exempt from INA 212(a)(4)

(CT:VISA-1258;   03-25-2021)

(U) The following aliens are exempt from INA 212(a)(4):

(1)  (U) Refugees at the time of admission under INA 207 and at the time of adjustment of status of lawful permanent resident under INA 209;

(2)  (U) Asylees at the time of granting of asylum under INA 208 and at the time of adjustment of status to lawful permanent resident under INA 209;

(3)  (U) Amerasian immigrants at the time of application for admission as described in section 584 of the Foreign Operations, Export, Financing, and Related Programs Appropriations Act of 1988, Public Law 100-202, 101 Stat. 1329-183, section 101(e) (December 22, 1987), as amended, 8 U.S.C. 1101 note;

(4)  (U) Afghan and Iraqi Interpreter, or Afghan or Iraqi national employed by or on behalf of the U.S. Government as described in section 1059(a)(2) of the National Defense Authorization Act for Fiscal Year 2006 Public Law 109-163 (Jan. 6, 2006), as amended, and section 602(b) of the Afghan Allies Protection Act of 2009, Public Law 111-8, title VI (Mar. 11, 2009), as amended, 8 U.S.C. 1101 note, and section 1244(g) of the National Defense Authorization Act for Fiscal Year 2008, as amended Public Law 110-181 (Jan. 28, 2008);

(5)  (U) Cuban and Haitian entrants applying for adjustment of status under section 202 of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (Nov. 6, 1986), as amended, 8 U.S.C. 1255a note;

(6)  (U) Aliens applying for adjustment of status under the Cuban Adjustment Act, Public Law 89-732 (Nov. 2, 1992), as amended, 8 U.S.C. 1255 note;

(7)  (U) Nicaraguans and other Central Americans applying for adjustment of status under sections 202(a) and section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Public Law 105-100, 111 Stat. 2681 (Oct. 21, 1998), as amended, 8 U.S.C. 1255 note;

(8)  (U) Haitians applying for adjustment of status under section 902 of the Haitian Refugee Immigration Fairness Act of 1998, Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998), as amended, 8 U.S.C. 1255 note;

(9)  (U) Lautenberg parolees as described in section 599E of the Foreign Operations Export Financing, and Related Programs Appropriations Act of 1990, Public Law 101-167, 103 Stat. 1195, title V (Nov. 21, 1989), as amended, 8 U.S.C. 1255 note;

(10) (U) Special immigrant juveniles as described by INA 245(h);

(11) (U) Aliens who entered the United States prior to January 1, 1972, and who meet the other conditions for being granted lawful permanent residence under INA 249 and 8 CFR 249;

(12) (U) Aliens applying for or re-registering for Temporary Protected Status as described in INA 244 in accordance with INA 244(c)(2)(A)(ii) of the Act and 8 CFR 244.3(a);

(13) (U)  A nonimmigrant described in INA 101(a)(15)(A)(i) and (A)(ii), in accordance with INA 102 and 22 CFR 41.21(d);

(14) (U) A nonimmigrant classifiable as a C-2 or C-3 under INA 101(a)(15)(C) and 22 CFR 41.21(d);

(15) (U) A nonimmigrant described in INA 101(a)(15)(G)(i), (G)(ii), (G)(iii), and (G)(iv), in accordance with INA 102 and 22 CFR 41.21(d);

(16) (U) A nonimmigrant classifiable as NATO-1, NATO-2, NATO-3, NATO-4, or NATO-6 visa, in accordance with 22 CFR 41.21(d)(2)(iii) and (v);

(17) (U) An applicant for, or an individual who is granted, nonimmigrant status under INA 101(a)(15)(T), in accordance with INA 212(d)(13)(A);

(18) (U) Except as provided in the NOTE below, an individual who is seeking an immigration benefit for which admissibility is required, including, but not limited to adjustment of status under INA 245(a) and INA 245(l) and who;

(a)  (U) has a pending application that sets forth a prima facie case for eligibility for nonimmigrant status under INA 101(a)(15)(T);

(b)  (U) has been granted T nonimmigrant status under INA 101(a)(15)(T), providing that the individual is in valid T nonimmigrant status at the time the benefit requested is properly filed with USCIS and at the time the benefit request is adjudicated;

(19) (U) Except as provided in NOTE below,

(a)  (U) A petitioner for nonimmigrant status under INA 101(a)(15)(U), in accordance with INA 212(a)(4)(E)(ii); or

(b)  (U) An individual who is granted nonimmigrant status under INA 101(a)(15)(U) in accordance with INA 212(a)(4)(E)(ii), who is seeking an immigrant benefit for which admissibility is required, including, but not limited to, adjustment of status under INA 245(a), provided that the individual is in valid U nonimmigrant status at the time the benefit is properly filed with USCIS and at the time the benefit request is adjudicated;

(20) (U) Except as provided in NOTE below, an alien who is a VAWA self-petitioner under INA 212(a)(4)(E)(i);

(21) (U) Except as provided in NOTE below, a qualified alien described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. 1641(c), under INA 212(a)(4)(E)(iii);

(22)(U) Applicants adjusting status who qualify for a benefit under section 1703 of the National Defense Authorization Act, Public Law 108-136, 117 Stat. 1392 (Nov. 24, 2003), 8 U.S.C 1151 note;

(23)(U) American Indians born in Canada determined to fall under INA 289;

(24)(U) Texas Kickapoo Indians of the Kickapoo Tribe of Oklahoma, Pub. L. 97-429 (Jan. 8, 1983);

(25)(U) Nationals of Vietnam, Cambodia, and Laos applying for adjustment of status under section 586 of Public Law 106-429 under 8 CFR 245.21;

(26)(U) Polish and Hungarian Parolees who were paroled into the United States from November 1, 1989 to December 31, 1991 under section 646(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C. Title VI, Subtitle D (Sept. 30, 1996), 8 U.S.C. 1255 note; and

(27)(U) Any other category of aliens exempt under any other law from the public charge ground of inadmissibility provisions under INA 212(a)(4).

    (U) Note: Limited Exemption: Aliens described in (18) through (21) must submit an Form I-864 as described in INA 213A if they are applying for an immigrant visa based on an employment-based petition that requires such an affidavit of support as described in section 212(a)(4)(D) of the Act.

9 FAM 302.8-2(C)  (U) Advisory Opinions

(CT:VISA-1258;   03-25-2021)  

(U) An AO is not required for a potential INA 212(a)(4) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from L/CA.

9 FAM 302.8-2(D)  (U) Waiver

9 FAM 302.8-2(D)(1)  (U)  Waivers for Immigrants

(CT:VISA-1258;   03-25-2021) 

a. (U) No waiver is available for immigrants ineligible under INA 212(a)(4).   Applicants may overcome the finding by presenting evidence to convince you that the ineligibility no longer applies.  While there are provisions for overcoming the ineligibility by posting a bond with DHS, the applicant is still subject to AOS and income requirements.  Consequently, there are few circumstances in which a bond would be offered as an alternative to the AOS.

b. Unavailable 

9 FAM 302.8-2(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1258;   03-25-2021)

a. (U) While a waiver is legally available for nonimmigrants ineligible under INA 212(a)(4), as a matter of policy, you should generally not recommend an NIV waiver for an applicant who is ineligible on this ground.  If you believe a case merits waiver recommendation, please contact your country analyst in CA/VO/F.  In almost all cases, an NIV applicant who is ineligible under INA 212(a)(4) will likely also be ineligible under INA 214(b) for failing to establish that he or she is entitled to a nonimmigrant status under INA 101(a)(15); INA 214(b) is not waivable.  Both grounds of refusal may be overcome in the future if an applicant presents evidence that convinces the consular officer that the ineligibility no longer applies. 

b. Unavailable

9 FAM 302.8-2(E)  Unavailable

9 FAM 302.8-2(E)(1)  Unavailable

(CT:VISA-1133;   08-05-2020)

Unavailable

9 FAM 302.8-2(E)(2)  Unavailable

(CT:VISA-1133;   08-05-2020)

Unavailable

 

 

 

UNCLASSIFIED (U)