DOS Cable on Public Charge Ineligibility for Affidavits of Support

R 081557Z JUN 98
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
BUJUMBURA POUCH

UNCLAS STATE 102426

VISAS

E.O. 12958: N/A
TAGS: CVIS

Subject: I-864 Affidavit of Support: Update No. 14 - Commitment To Provide Assistance

Ref: State 047538 and All Previous

1. Introduction and Summary. Six months of joint field and Department experience with the I-864 now allows VO to provide more comprehensive guidance on adjudicating cases requiring this new form. Consular officers could justifiably complain that this guidance was needed from the beginning, and you would be right, but only after dealing with a range of circumstances and cases could we develop anything approaching useful instructions. VO greatly appreciates the efforts posts have made, the piles of irrelevant documents you have had to pick through and the formidable burden this new affidavit of support has posed. We are grateful for your questions and the informed dialogue you have maintained with us. We continue to explore ways to relieve posts of as much of the strain as we possibly can. This cable provides guidance on evaluating the credibility of an I-864 affidavit to determine whether an I-864 is sufficient to overcome 212(a) (4) ineligibility and sets out standards to ensure broad consistency among posts when making such public charge adjudications. End introduction and summary.

2. The principal change regarding affidavits of support and public charge under IIRAIRA is the requirement of 212(a)(4)(C)(ii) that the petitioner and any additional sponsor execute an affidavit of support as described in section 213A of the Act, thereby creating a legally enforceable affidavit of support. It is Department's view that the 213A conditions are vital technical requirements of the Act and whether those conditions have been met is a determination that must be made prior to addressing the question of public charge.

3. In determining whether the 213A requirements creating a legally binding affidavit have been met, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor - the affidavit is enforceable regardless of the sponsor's actual intent - and should not be considered by the consular officer. If the consular officer finds the I-864 meets the technical requirements of Section 213A, a determination must then be made whether there are significant public charge concerns. Only if the officer determines there are significant public charge concerns might the issue of credibility of the affidavit arise.

4. In going beyond the 213A requirements to consideration of eligibility under INA 212(a)(4), Department notes that for several reasons a properly filed, non-fraudulent I-864 shall normally be considered sufficient to overcome the 212(a)(4) requirements. The I-864 is a legally enforceable contract, and therefore shall be granted significantly more evidentiary weight than the previous affidavit of support. Moreover, the new AOS requirements have not changed the long-standing legal presumption that an able-bodied, employable individual will be able to work upon arrival in the U.S. The presumption that the applicant will find work coupled with the fact that the I-864 is a legally enforceable contract will provide in most cases a sufficient basis to accept a sponsor's or joint sponsor's technically sufficient AOS as overcoming the public charge ground.

5. This should not be misconstrued to mean that posts should accept a fraudulent AOS or one from a non-existent joint sponsor. Absent fraud, however, Department believes that the enforcement measures provided for by the Act should be considered a sufficient safeguard in all cases in which there are no significant public charge concerns.

6. Department does recognize that there are instances in which a public charge finding may be justified even though there is a valid I-864. Posts should adhere to the following guidelines in identifying cases in which public charge may be appropriate.

• In all cases, the consular officer should begin by determining whether the petitioner has presented an I-864 meeting the requirements of section 213A;

• If the I-864 does not meet the requirements of section 213A because petitioner is not domiciled in the U.S. and does not plan to re- establish domicile or because petitioner is under the age of 18, applicant is ineligible pursuant to 212(a)(4);

• If the I-864 is insufficient because of failure to meet the income or tax return requirements of section 213A, the consular officer should request that a joint sponsor provide an I-864 or, in the case of tax returns, request amended returns be filed; if not available, applicant is ineligible pursuant to 212(a)(4);
• If a technically sufficient I-864 is presented by the petitioner and, if necessary, a joint sponsor, the consular officer should interview the applicant to determine if there are significant public charge concerns;
• Significant public charge concerns are specific, identifiable personal characteristics of the applicant that would lead the consular officer to believe that the applicant would require considerable resources from either the sponsor or the public once the applicant is in the U.S. Such identifiable characteristics might be chronic illness, physical or mental handicaps, extreme age or other serious condition that in the absence of significant available personal resources or insurance would normally result in the expenditure of public funds on an individual's behalf;
• If there are no significant public charge concerns the consular officer should continue with processing;
• If there are significant public charge concerns and petitioner has adequate funds to maintain the applicant, proceed with processing unless evidence comes to light that the petitioner has failed to provide support to an alien for whom the petitioner has previously filed an I- 864. In the latter case a consular officer could reasonably question the credibility of the petitioner;
• If there are significant public charge concerns and a joint sponsor is needed, post should normally accept the I-864 of the joint sponsor. However, there may be factors that lead the consular officer to question the credibility of the offer to support. As in the case of petitioner's affidavit, one factor might be failure to honor a previous I-864. In the case of persons not directly related to or having only a remote acquaintance with the applicant, the lack of a social or other meaningful relationship between the sponsor and the applicant or petitioner and the inability to discern any reasonable motive for the joint sponsor to devote a considerable portion of his or her personal income to supporting the applicant might cause an officer to question the joint sponsor's credibility;
• On the other hand, past or present receipt of public benefits by a sponsor or a member of the sponsor's household for whom the sponsor has not filed an I-864 and has no other legal responsibility to support does not reflect on the credibility of the sponsor, although it may raise questions about whether the sponsor has demonstrated the ability to maintain the applicant at the required level for the five years that the I-864 is valid;
• If the consular officer determines that the offer to support is not credible and no other joint sponsor has presented an I-864, the applicant should be found ineligible pursuant to 212(a)(4) and the refusal should include an explanation of both the significant public charge concerns and the specific factors that led conoff to conclude that the offer to support is not credible.

7. Questions on this should be directed to CA/VO/L/A.

Strobe Talbott