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DOS Rule on Affidavits of Support: Public Charge Issues


R 060115Z DEC 97
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BUJUMBURA 
AMEMBASSY SARAJEVO 
AMEMBASSY PARAMARIBO 

UNCLAS STATE 228862

VISAS INFORM CONSULS

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

Subject: I-864 Affidavit of Support Update No. One - Public Charge Issues

Ref:  (a) State 211673 (b) State 7103

1.  This is the second in a series of cables related to the new section 
213a Affidavit of Support Form, I-864, and related regulations.  REFTEL A, 
"Nuts and Bolts", was the
first.  This cable addresses public charge issues under the new 
regulations.

2.  The Aug. 22, 1996 Welfare Reform Act (the Personal Responsibility and 
Work Opportunity Reconciliation Act -- "PRWORA"), P.L. 104-193, added a new 
section 213a to the Immigration and Nationality Act which provides for 
legally binding Affidavits of Support for purposes of meeting INA 
212(a)(4)'s public charge requirement.  On Sept. 30, 1996, the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), P.L. 
104-208, amended INA 212(a)(4) to require that a section 213a binding 
Affidavit of Support be submitted for all family-based immigrant visa 
applicants (other than self-petitioners) and certain employment based IV 
applicants.   The Welfare Reform Act, amended by P.L. 105-33, restricted 
the public benefits available to most aliens in the United States. Both 
laws will affect how Consular Officers adjudicate public charges under the 
INA. The fundamental responsibility of a Consular Officer to verify that 
visa applicants have adequate financial resources so that they are not 
likely to become a public charge remains unchanged, however.  This message 
addresses the effect the new laws will have on consular implementation of 
the public charge provisions of INA Section 212(a)(4) .

212(a)(4) - Changes Made by IIRAIRA and the Welfare Reform Act

3.  212(a)(4)(A) - This section 15 the old section 212(a)(4), with 
"inadmissible" substituted for "excludable".   The following paragraphs 
summarize the new
Provisions.

4.  212(a)(4)(b) - Factors To Be Taken Into Account. IIRAIRA first lists 
the factors Consular Officers have traditionally considered in making 
public charge determinations:   age, health, family status, assets, 
resources and financial status, education and skills. In addition, however, 
it explicitly states that Consular Officers and the Attorney General (INS 
inspectors) may also consider any Affidavit of Support under INA section 
213a the new contractual Affidavit of Support].

5.  212(a)(4)(c) - Family Sponsored Immigrants. Subsection (ii) of this 
section requires that the petitioner in all family-based immigrant visa 
cases file a contractual Affidavit of Support as described in section 213a. 
(Self-petitioning widow/ers and battered spouses and children are exempt 
from this requirement by subsection (i) of this section.)

6. 212(a)(4)(d) - Certain Employment-Based Immigrants.  In employment-based 
cases where a relative is either the petitioner or has significant 
ownership interest (5 percent or more) in the petitioning entity, that 
relative must file an Affidavit of Support as described in section 213a.

Section 213a - Contractual Affidavit of Support

7.  Applicants listed in Paras 5 and 6 above must submit a Section 213a 
Affidavit of Support. This is a legally enforceable agreement in which the 
sponsor agrees to provide support to maintain the sponsored alien(s) at an 
annual income that is not less than 125 percent of the federal poverty 
guideline for the indicated household size during the  affidavit's period 
of enforceability.  A sponsor on active duty in the U.S. Armed Forces, 
other than active duty for training, who is petitioning for his or her 
spouse or child must only demonstrate the means to maintain an income equal 
to at least 100 percent of the federal poverty guidelines.  The contractual 
Affidavit of Support was explained in detail in REFTEL (A).

Means-Tested Public Benefits

8.  P.L. 104-193 severely limits most aliens' eligibility for federal 
means-tested public benefits for at least the first 5 years after arrival 
in the U.S. individual states will determine whether aliens are qualified 
for most state benefits.  Although an alien could access public benefits 
more freely thereafter, the section 213a Affidavit of Support may at that 
point permit public benefits programs to seek reimbursement from an alien's 
sponsor for certain means-tested benefits received by the sponsored 
alien(s) for the duration of the period that the affidavit is enforceable. 
The affidavit is enforceable until such time as the alien can be credited 
with 40 qualifying quarters; naturalizes; departs the U.S. and relinquishes 
LPR status; or dies.

9. Since it generally takes 10 years to accumulate 40 qualifying quarters, 
this means that in the case of many aliens, (1) no federal means-tested 
public benefits will be paid in their first five years in the U.S. and (2) 
any means-tested benefits paid in the next five years, or for the duration 
of the enforceability of the Affidavit of Support, may be recovered from 
the sponsor who submits the section 213a Affidavit of Support.

10.  Eligibility for federal means-tested public benefits is generally 
determined on the basis of income, resources or financial need of the 
individual, household or family. Federal means-tested public benefits are 
to be identified by the administering agencies. To date, those agencies 
have identified and published the following benefits:
Medicaid, Supplemental Security Income (SSI), and Temporary Assistance for 
Needy Families (TANF). (note: TANF has replaced aid for families with 
dependent children (AFDC).) There may be other federal means-tested public 
benefits (including, most likely, food stamps) designated in the future.  
States will individually identify means-tested state benefits for the 
purposes of this act.

Benefits Not Within the Provisions of INA 212(a)(4)

11.  As noted in 9 FAM 40.41 n.9, certain programs which are funded with 
public funds for the general good should not be considered public charge. 
Such programs would include, but are not limited to: public education, 
child vaccination programs, social security payments, and other similar 
programs.

Benefits Exempted from the Means-Tested Restrictions:

12.  The following benefits are specifically exempted from the prohibition 
of receipt by aliens in Para 423(d) of the Welfare Act: emergency medical 
assistance; short term, non-cash, in kind emergency disaster relief; 
assistance or benefits under the National School Lunch Act and similar 
state and local programs; assistance or benefits under the Child Nutrition 
Act of 1966 and similar state and local programs, including the 
Supplemental Nutrition Program for Women, Infants and Children (WIC) 
program; public assistance for immunizations and for testing and treatment 
of symptoms of communicable diseases whether or not such symptoms are 
caused by a communicable disease; payment for foster care and adoption 
assistance; programs, services or
assistance (such as soup kitchens, crisis counseling and intervention, and 
short-term shelter) specified by the Attorney General; programs for student 
assistance under
Titles IV, V, IX and X of the Higher Education Assistance Act of 1965 and 
Titles II, VII, and VIII of the Public Health Service Act; benefits under 
the Head Start Act; means-tested programs under the Elementary and 
Secondary Education Act of 1965; and benefits under the Job Training 
Partnership Act.

13.  In determining whether an alien is likely to become a public charge, 
the department's long-standing guidance will generally continue to be 
applicable in the same way as before Congress restricted the eligibility of 
certain aliens for most welfare programs. It thus is appropriate to 
consider whether the alien would likely need to rely on public assistance 
programs, even if the Welfare Act permits such assistance to be paid. The 
potential utilization by a visa applicant of means-tested programs such as 
SSI and TANF or non-basic assistance means-tested programs such as Medicaid 
for non-emergency medical care will continue to be indicators that the 
alien is likely to become a public charge.

Adjudication of Public Charge Provisions Under Section 213a

14.  Although the new regulations require a petitioner or joint sponsor to 
demonstrate a sustainable income of 125 percent of the poverty guideline, 
the mere fact that the petitioner/sponsor has met the minimum requirement 
does not preclude a finding of ineligibility under public charge provisions 
of the Act. The act provides for and the INS
regulations restate the discretion of consular and immigration officers to 
make public charge determinations based on a consideration of the 
individual circumstances of each case.  The regulations clearly state that, 
even if the Affidavit meets the minimum requirement, an officer may require 
additional evidence of income or assets or may require a joint sponsor if 
the demonstrated resources do not appear adequate to prevent the 
applicant(s) from becoming a public charge.

Insufficient Affidavit of Support

15.  In the IV-categories listed in Paras 5 and 6 above, the petitioner 
must submit an Affidavit of Support and demonstrate an income at a minimum 
of 125 percent of the poverty guideline for the indicated household size  
(100 percent for members of the armed services).  As noted in Paras 20-23 
of Ref(A), the petitioner may use the income
and assets of qualified household members, who have signed Form I-864a, to 
meet the required income level.   If the petitioner and qualified household 
members, cannot meet that income level, the affidavit is considered 
"insufficient."

16.  If the petitioner's affidavit is insufficient, a joint sponsor who 
individually meets the 125 percent minimum income requirement may file an 
Affidavit of Support.  The petitioner and joint sponsor(s) may not pool 
their resources to meet the minimum income.  If the petitioner's Affidavit 
is insufficient and there is no/no joint sponsor, the applicant must be 
found ineligible for an immigrant visa under 212(a)(4).

Sufficient AOS and Public Charge Issues

17.   In most cases, the public charge requirements will be satisfied by 
the submission of a verifiable Affidavit of Support that meets the 125 
percent minimum income requirement.  However, the fact that the minimum 
income level has been met does not preclude the Consular Officer from 
examining other public charge considerations. A finding of ineligibility in 
cases where the 125 percent minimum has been met must be well-documented 
and demonstrate a clear basis for the determination that the applicant is 
likely to become a public charge.

18.   If the applicant and/or his/her spouse or dependents are in good 
health and appear to be employable, an Affidavit of Support that meets the 
minimum income level
should generally be considered adequate.

19.   If the applicant(s) suffer from poor health or serious physical 
impairment, are likely to need medical treatment, or are otherwise not 
likely to be able to support themselves, closer scrutiny of the sponsor's 
ability to provide the requisite level of support may be necessary.  For 
example, a sponsor who is able to demonstrate an income that barely meets 
the minimum requirement, should have to demonstrate clearly that he/she has 
the resources to cover an applicant requiring extensive or long-term 
medical expenses.   In such cases, a joint sponsor with substantial 
resources would have to provide an Affidavit of Support. (Note: Medical 
considerations should only be for conditions that exist at the time of the 
interview. A healthy elderly applicant, for example, should not be denied a 
visa simply because s/he might require medical care at some point in the 
future.)

20.   Conversely, a sponsor who meets the income requirement may have 
financial obligations that severely reduce the amount of support s/he could 
realistically provide to the applicant.  Interviewing officers may request 
additional information regarding the petitioner's financial situation as 
needed.  Such requests should not be routinely made of all 
applicants/petitioners, but should be limited to those cases where the 
additional information is essential to adjudication.

Joint Sponsors

21.  If the petitioner cannot meet the minimum income requirement, one or 
more joint sponsors may file separate Affidavits of Support.  Each joint 
sponsor will be jointly and severally liable for reimbursement payments 
and, therefore, must independently meet the income requirement.  They may 
not combine their resources to meet that requirement.  There is no 
limitation on who may submit a joint Affidavit of Support as long as each 
sponsor meets the requirements for a sponsor listed in the Act (see
REFTEL A, Paras 11 & 12).  Officers should accept and consider any joint 
affidavit submitted regardless of the relationship of the Affiant to the 
applicant. Given the contractual nature of the Affidavit, a certain weight 
must be given to all verifiable Affidavits of Support, but the affiantt 
must still demonstrate the wherewithal to provide the level of support 
required by the Act. While it is not a requirement for an affiant to be a 
relative by blood or marriage to an applicant, it would seem logical that a 
relative or friend of the family would be more strongly motivated to 
fulfill the obligations of the 
I-864 than an individual who is unknown the petitioner or the beneficiary. 
Any questions regarding this issue should be addressed to VO/L/A.

22.  If the petitioner/sponsor meets the minimum income requirement, a 
joint sponsor is generally not authorized.  A Consular Officer may request 
an Affidavit of Support from a joint sponsor if the petitioner's/sponsor's 
resources do not appear adequate to meet the applicants' needs.  Previous 
receipt of public benefits by the sponsor.

23.   Part 4(b) of the I-864 asks for information regarding receipt of 
means-tested public benefits by the petitioner/sponsor and household 
members during the prior three years. Despite the prohibition of the 
extension of such benefits to aliens under the welfare reform laws, there 
is no ground of ineligibility based solely on the prior receipt of such 
benefits. However, the regulation provides that an Affidavit of Support may 
be found insufficient notwithstanding the apparent sufficiency of current 
income, assets, or a joint sponsor's income, if the officer determines, 
based on the sponsor's employment situation, income for the prior three 
years, assets, or receipt of welfare benefits, "that the sponsor or joint 
sponsor cannot maintain his or her income at the required level."

24.  The past or current receipt of public benefits by the petitioner thus 
raises public charge questions, but does not in itself constitute a ground 
of ineligibility.  Often in such cases, the petitioner will not be able to 
demonstrate the minimum income requirement and a joint sponsor will be 
necessary.  If there is a sufficient Affidavit of Support and the applicant 
appears to be able to support him/herself and dependents, a public charge 
finding may not be appropriate notwithstanding the petitioner's reliance on 
public assistance.

25.  If, on the other hand, the applicant is unlikely to be able to support 
him/herself, there will be a greater burden on the sponsor(s) to overcome 
public charge considerations.  If, for example, the petitioner lives with 
or is dependent upon the joint sponsor (who is often a son or daughter), 
the issue of why the joint sponsor has not provided adequate support to the 
petitioner should be a consideration.

Receipt of Public Benefits by Applicants

26.  Different questions arise when the applicant has traveled previously 
to the United States and accessed public benefit programs.  It is important 
to note that public charge provisions are generally forward looking and 
findings of ineligibility should be based on the likelihood of the 
applicant becoming a public charge.  There is no ground of ineligibility 
based solely on the prior receipt of public benefits.  However, under 
limited circumstances, a federal, state, or local agency which administers 
public benefits may determine that a benefit was unlawfully obtained or 
that an overpayment has occurred and will demand repayment of the benefit 
from the beneficiary.  If a state has made such demand for payment and the 
applicant has not made reimbursement, a public charge finding would be 
appropriate.  Generally, however, unless fraud can be clearly demonstrated, 
administering agencies will lack legal authority to make a demand for 
repayment of received benefits.  Thus in most cases, prior receipt of 
benefits, by itself, should not lead to an automatic finding of 
ineligibility.  Prior receipt of public benefits is a factor which may be 
considered in making public charge determinations, along with evidence of 
the applicant's current financial situation and of the sponsor's ability to
provide support.

27.  Under no circumstances should an officer instruct or request an 
applicant to repay previously received benefits. This is a matter the 
applicant should address directly to the state.  If asked, the officer 
should advise the applicant that while repayment can be considered in any 
reevaluation, it will not guarantee the issuance of a visa.

28.  Additional guidance regarding receipt of public benefits and public 
charge considerations will be addressed SEPTEL.

Public Charge and All Other Applicants

29.  Only those applicants noted in Paras 5 and 6 above are required to 
submit a contractual Affidavit of Support.  Any other immigrant or non-
immigrant applicants who may need an Affidavit of Support to overcome the 
public charge provisions of the Act should use the I-134 currently in use. 
There will be little change in the adjudication of
Public charge provisions in cases not covered by the contractual Affidavit 
of Support. Consular officers should continue to apply existing guidelines 
for making public charge determinations in those cases.

30. Minimize considered


Strobe Talbott

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