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.

Implications

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.

Can more than one family member petition for my green card? (I-130)

For months, family-based immigration has been up for debate in both houses of Congress. This week, President Trump called for several policy changes to both illegal and legal immigration. Among one of the proposed changes, President Trump and Republicans in Congress have promised to end “chain migration,” also known as family-based immigration. Specifically, the current administration aims to end petitions for siblings and parents by U.S, Citizens. For U.S. Citizens & Lawful Permanent Residents (LPRs), the looming immigration legislation could prevent family reunification decades in the making.

Who can petition for my green card?

Any citizen or lawful permanent resident of the United States can submit an immigrant petition for an alien relative. However, the relationship between the petitioning relative and the foreign national relative determines the time frame for processing each application. For immediate relatives of US citizens, such as parents, spouses, and unmarried children under 21, there are no national limits for family-based petitions for green cards. For petitions that do not fall into the “immediate relative” category, the law lists caps to “family-based preference” applications which are administered by Department of State (DOS) through the monthly Visa Bulletin. Therefore, a U.S. citizen who petitions for their sibling which falls under the fourth preference (F4) may have to wait for 14-15 years before the sibling is eligible to migrate to the United States.

Can more than one relative petition for my green card?

Yes. For beneficiaries seeking a green card through a family member, more than one qualified family member can petition on behalf of their foreign national relative. However, one should prioritize an “immediate relative” if such relationship exists. For example, if a foreign national is the beneficiary of a FB-1 (Family Based First Preference) category (Unmarried Sons and Daughters of U.S. Citizen) through his U.S. Citizen father with a current wait times of around 7 years, and the U.S. Citizen suddenly passes away, they would have to begin a separate application through another family member, like a U.S. Citizen sibling or a U.S. Citizen mother, to enter the US through family immigration. Had the mother and sibling submitted simultaneous petitions for the same beneficiary along with the U.S. Citizen father, the foreign national would not have to worry about starting over, thereby avoiding further delays to already lengthy process. Given the uncertainty surrounding President Trump’s proposed changes to family-based immigration, many are unsure as to whether they should file through a particular relative. Until a final decision is made in Washington, we suggest scheduling a consultation with our office to discuss options available to you and your family.