DOS Cable on New I-864 and 212(a)(4)/221(g) Refusal Rates
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
BUJUMBURA POUCH
Unclas State 064917
Visas, Inform Consuls
E.O. 12958: N/A
TAGS: CVIS, CMGT
Subject: I-864 Affidavit of Support - Update No. 12: 212(a) (4) v. 221(g)
Ref: (A) 97 State 235260, (B) 9FAM 40.41 N4, (C)State 47358, (D) 97 State 228862, and all previous
1. The transition period for the new I-864 affidavit of support has been marked by increased 221(g) and, to a lesser extent, 212(a)(4) refusal rates. Most of the 221(g) refusals have been related to technical deficiencies in the complex new Forms I-864 and I-864a. This message addresses the applicability of both 221(g) and 212(a)(4) ineligibilities to the adjudication of I-864 cases.
221(g)
2. A refusal under 221(g) is appropriate when the I-864 is technically deficient (e.g., missing supporting documentation, not notarized, or requiring updated information). In such instances, the application would be refused under 221(g) until the I-864 is technically complete and ready for adjudication.
212(a)(4)
3. An affidavit of support which is technically complete, but which does not reflect sufficient financial resources to meet the 125 percent requirement, would result in a 212(a)(4) refusal. It is conceivable that the applicant will overcome the initial 212(a)(4) refusal in a relatively short time frame, for example upon presentation of an I-864 from a joint sponsor which demonstrates adequate financial resources.
4. An I-864 provided by a petitioner/sponsor who does not meet the qualifying criteria for a sponsor as set forth in INA section 213(a) (e.g., U.S. citizen or LPRA, domicile, age) does not satisfy the public charge provisions of section 212(a)(4), regardless of whether or not the evidence of financial resources meets the 125 percent minimum income requirement. In such instances, a 212(a)(4) refusal would be overcome upon the petitioner/sponsor meeting the age and/or domicile requirements, as well as upon evidence of adequate financial resources from the petitioner and/or a joint sponsor.
5. As noted in Reftel D (paragraphs 17-20), an I-864 demonstrating financial resources at or above the 125 percent benchmark will generally be adequate for visa issuance. Consular officers must still take into consideration, however, an applicant's ability to provide for him/herself and any special circumstances, such as the need for medical treatment or other financial obligations, which would be a factor in a 212(a)(4) determination. Thus, an applicant who presents an I-864 which just meets the 125 percent minimum income requirement may easily convince the consular officer that s/he will not become a public charge based on the applicant's ability to support her/himself. Conversely, an applicant who presents an I-864 which fulfills the 125 percent requirement may still be refused under section 212(a)(4) if there are anticipated medical or other costs on behalf of the applicant which the sponsor does not appear capable of meeting.
221(g) v. 212(a) (4) -- It Makes A Difference
6. Applying the correct refusal is extremely important. In a reapplication, it helps the reviewing officer focus on those aspects of the I-864 which need attention. An officer reviewing a 212(a)(4) refusal, for example, will know that the initial I-864 was technically complete, and can turn to the financial and sponsorship requirements. Accurate adjudication is also important for statistical purposes. Given the strong congressional and public interest in the subject, the department needs an accurate picture of 212(a)(4) refusals and the impact of the I-864 on visa processing. Finally, consular managers need accurate and specific refusal statistics to evaluate workload and resource needs.
7. Minimize considered.
Strobe Talbott