When you apply for a U.S. visa, you must show you qualify for that visa (for example, that you are going to be a student in the U.S. or your spouse is a U.S. citizen). You also must show you are not inadmissible. There are lots of ways you could be inadmissible, many of which you have probably never thought of.
“Public charge” is one of the oldest (and sneakiest) reasons to deny a visa application, and it most often applies to people applying for permanent residency through a family member. If you are denied on public charge grounds, it means the consular officer who interviewed you looked at a bunch of factors and decided you were likely to need financial support from the U.S. government.
Until recently, an Affidavit of Support was enough to overcome this hurdle. If the person sponsoring you for the visa could show enough income and assets on the Affidavit of Support (125% of the federal poverty guidelines for their household size), you were good to go. If necessary, your sponsor could find a joint sponsor to help them meet the minimum requirements, and there was no requirement this person be a close family member.
The Department of State is responsible for deciding visa applications at U.S. Embassies and consulates. In early 2018, DOS changed its guidance on the public charge ground of inadmissibility. This new guidance takes the focus off the Affidavit of Support and tells officers to look at the “totality of the circumstances.” The officers must consider five factors (and any other factors they think are relevant).
The five factors are
age;
health;
family status;
assets, resources, and financial status;
education and skills.
What evidence should I take to my interview?
The Affidavit of Support is still required, and it can be very helpful, but showing enough income and assets on the Affidavit of Support is no longer enough to definitely avoid a denial for “public charge.” Visa applicants should consider taking additional documentation to their interview to show they will not require government assistance in the United States.
The type of documents will vary from case to case. Here are some ideas:
a job offer or evidence of current employment,
a current resume listing education, job training, and work experience,
evidence of enrollment and good performance in school or a job training program,
documentation of health insurance enrollment or eligibility to enroll after entering the United States,
evidence of relationship with the joint sponsor
signed acknowledgement of the joint sponsor’s awareness of any unusual expenses and willingness to assist with these expenses, if necessary.
To be clear, the rule is still that a joint sponsor does not have to be a relative. Even so, if the joint sponsor is not a close relative, it is a good idea to document their relationship to you, or the consular officer might not believe they are really willing to help support you.
What will happen to my Waiver?
If you have an approved provisional unlawful presence waiver (Form I-601A), you should be especially careful. If the consular officer finds you are likely to become a public charge and denies your visa application, your waiver will be revoked.
Not only will you have to file a new visa application, showing you will not be a public charge. After that is approved, you must also file a new waiver application from outside the country and wait for it to be approved before you can return to the United States.
How does this affect applications inside the United States?
The Embassies and consulates aren’t the only government offices that process immigration applications. If you are applying from within the United States, your application will go to the U.S. Citizenship and Immigration Service (USCIS). USCIS has announced plans to completely overhaul how they evaluate “public charge” inadmissibility.
USCIS plans to start considering whether the applicant, or even their U.S. citizen children have received (or just applied for) virtually any public service or benefit.
Non-emergency Medicaid
CHIP, SNAP, WIC
Section 8 housing
Low-Income Home Energy Assistance Program
Earned income tax credit
Subsidized health insurance under the Affordable Care Act
If any of the following is true, USCIS’s proposed rule will give it a lot of importance.
The applicant is the right age to work and has work authorization but is unemployed.
The applicant has no employment history or reasonable prospective of employment.
The applicant is currently receiving public benefits or has received public benefits for more than six months during the last three years.
The applicant has an expensive medical condition and does not have unsubsidized health insurance or other way of covering the cost of care.
The applicant is a derivative beneficiary, and their spouse or parent has been found inadmissible as a public charge.
On the bright side, if you can show either of the following, USCIS would consider it a very positive factor.
The applicant is healthy, is the right age to work, and the Affidavit of Support shows income and assets totaling at least 250% of the federal poverty guidelines.
The applicant has work authorization, is employed, and earns at least 250% of the federal poverty guidelines.
It seems USCIS would like to start requiring more people to post a “public charge bond” of at least $10,000. Since public charge bonds have been extremely rare until now, it is not clear how they would be used.
If you think your visa might be denied on this ground, be proactive! Submit additional documentation to prove you will not need government services in the United States and consider talking with a lawyer before moving forward.