DOS on 221(g) vs. 212(a)(4) Findings

R 241119Z MAY 99
FM SECSTATE WASHDC
TO ALL IMMIGRANT VISA PROCESSING POSTS
SPECIAL EMBASSY PROGRAM
DAR ES SALAAM POUCH
MONROVIA POUCH
DOHA POUCH
KINSHASA POUCH
TIRANA POUCH

Unclas State 095509

E.O. 12958: N/A
TAGS: CVIS
Subject: 221(g) Versus 212(a)(4)

Ref: State 094647

1. The introduction of the I-864 affidavit of support into the immigrant visa process has led to a significant rise in refusals attributable to the difficulties in preparing the form, the increased level of income necessary to sponsor a beneficiary, and the frequent need to find additional sponsors. A consistent approach to categorizing the refusals arising out of the public charge process assists Department in understanding the increase in workload, presenting our resource requirements to congress, and dealing with individual cases in an even-handed fashion. This cable reminds posts when a finding under INA 221(g) should be made versus a finding of 212(a)(4) and suggests how posts might set priorities in dealing with subsequent efforts to overcome 221(g) and 212(a)(4) findings.

2. The character of an INA 221(g) refusal differs from a 212(a)(4) or other 212(a) refusal in that the refusal may be procedural (e.g., based on failure to complete the application properly), and need not involve a formal finding of ineligibility under INA 212(a) or other grounds. A 221(g) refusal may be invoked rather than a 212(a) refusal or other substantive ground of ineligibility when the consular officer cannot conclude that the alien is eligible but believes that eligibility could be established by the presentation of further readily obtainable additional evidence. 221(g) is also used when the alien fails to complete the application as required. (compare 22 CFR 40.11-40.105 with 22 CFR 40.201 and INA 221(g)).

3. In the case of public charge issues this leaves a gray area, especially as in some instances a 212(a)(4) finding is easily subject to an overcome. As a general rule, a person who may be denied under 212(a)(4) may be instead denied under 221(g) when the applicant can clearly state or be clearly instructed on specific steps to be taken to complete an application in a way that, in the opinion of the interviewing officer, would lead to a finding of eligibility.

4. Examples of when the beneficiary should be found ineligible under 221(g) include cases such as the following, in which the officer determines that the defect in the application can be cured by taking specific steps:

• Petitioner has not yet submitted an I-864 but has stated his intention to do so and is not barred by the technical requirements of INA 213a(f) from doing so.
• Sponsor has improperly filled out the I-864 or has failed to provide complete supporting documentation, such as tax forms, nevertheless the information provided to date leads the interviewing officer to conclude that beneficiary will not be found ineligible on public charge grounds.

5. The beneficiary should be found ineligible pursuant to 212(a)(4) in cases such as the following in which the officer has sufficient information to make a 212(a)(4) ineligibility finding and the defect either cannot be cured by any obvious means or the beneficiary is likely to be found ineligible despite any proposed fixes.

• Petitioner, regardless of whether a properly filled out affidavit has been submitted, cannot meet the technical requirements of 213a(f), such as domicile or age.
• Sponsor has submitted an improperly filled out affidavit, for example, provided only the last two years tax returns, but the evidence submitted leads the
  interviewing officer to conclude that the beneficiary will be ineligible even if all requirements are met.
• Sponsor fails to meet the relevant poverty guidelines requirement. (Presumably in this situation no qualifying joint sponsor is available to overcome the 212(a)(4) finding of ineligibility.)
• The consular officer finds that the alien will likely become a public charge per instructions in Reftel.
• At any time the consular officer after review of the submission concludes that the particular problem in question is not amenable to resolution. An example would be where the sponsor plainly states that he does not intend to provide income tax returns.

6. In any cases where a sponsor has provided an otherwise technically sufficient I-864 but has not met the poverty guidelines or other public charge concerns, but beneficiary claims that there is a specific joint sponsor who is prepared to submit an affidavit, consular officers may make a finding of 221(g) or 212(a)(4). In the case of a younger college graduate who will be using parents as joint sponsors, consular officers might wish to make a 221(g) finding in anticipation of a sufficient I-864. When the nature of the financial picture of the joint sponsor is less clear, a 212(a)(4) finding might be more appropriate. Department is preparing a separate cable with guidance on joint sponsors.

7. Posts that refuse iv cases under 221(g) should ensure that a mechanism is in place to allow the applicant(s) to quickly submit the missing documents needed for visa issuance. In the case of 212(a)(4) refusals, most posts will want to institute an appointment system or some other means for reapplication. A post's primary concern should be first time applications and 221(g) overcomes. Reapplications to overcome previous 212(a)(4) refusals should be scheduled as post's workload permits. Posts should be sensitive, however, to factors such as aging out or expiration of supporting documents.

8. Minimize Considered.

Madeleine Albright