Public Charges Must Go: Changes to FAM

While the debate over immigration continues in Washington, a lot of questions have emerged regarding “public charge” non-citizens. Last week, the White House released proposed guidance for DACA recipients in which “Status is subject to revocation for criminal conduct or public safety and national security concerns, public charge, fraud, etc.” The announcement comes in addition to rumors that legal immigrants, who receive government assistance, could soon be at risk for deportation. The measure signals yet another attempt by the Trump administration to curb legal immigration.

Public Charge Definition

According to USCIS a public charge is “an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” However, there are a few exceptions that exempt recipients of federal aid of public charge status. Until recently, adjudicating officers considered “past or current receipt of public assistance of any type” as grounds for inadmissibility for pending visa applications. Many life events, including recent college graduation, can account for the need for public assistance. In these instances, the INA allows officers to use discretion in adjudication if the applicant appears to have circumstances to overcome public charge status (i.e. recent job offer). Conversely, if an applicant does not have positive circumstances to overcome dependence on public assistance, an adjudicating officer has the liberty to classify the applicant as inadmissible.


Previously, the public charge grounds for inadmissibility primarily impacted low-wage green card applicants. The updated and reorganized changes to FAM (Foreign Affair Manual) put out via a Policy Memo by the Department of State (DOS), however, instructs consular officers to consider other factors while adjudication applications for immigrants who depend on certain government programs. For example, an applicant’s past receipt of public assistance could be very significant where the applicant’s spouse was the family’s primary income earner, but recently died. In such a case, the applicant’s recent change in family status and likely change in financial status would weigh heavily in considering the totality of the circumstances. Additionally, the revision provides that a “properly filed and sufficient non-fraudulent” Affidavit of Support by itself may not satisfy the public charge requirement. So even though a properly filed and sufficient Affidavit of Support is essential, it does not preclude denial on public charge ground. The consular officers have been instructed to factor in the totality of the applicant’s circumstances by taking into consideration other factors like if the applicant is in very poor health, is unable to work, and is likely to incur significant medical costs.  The change to FAM originates from political distaste for immigrant dependence on public assistance, regardless of the low rate of public assistance for non-citizens. Those who are legally in the US and are beneficiaries of certain public assistance programs are typically in short-term financial stress. These changes could severely impact those living in the US under already dire circumstances.