Section 212(a)(4) of the Immigration and Nationality Act makes inadmissible any person who is likely to become a public charge. This is one of the oldest parts of US immigration law, having been a concern even before there was immigration law.
There is no regulatory guidance from the INS or the State Department on how to determine whether a person will become a public charge. There are a number of statutory factors that are to be considered, including the applicant’s age, health, family status, assets, financial status, education and skills. Also, both the INS and State Department rely on the annual poverty guidelines issued by the Department of Health and Human Services.
Since 1996, most immigrants have been required to submit an affidavit of support as evidence that they will not become a public charge. The affidavit is required of all family based immigrants and of employment based immigrants if there is a familial relationship between the immigrant and the ownership of the petitioning employer. This affidavit of support, Form I-864, creates a legally enforceable obligation on the part of the person petitioning on behalf of an intending immigrant, and if the immigrant collects means tested public benefits during their first five years in the US, the government can sue to recover funds from the petitioner.
While the affidavit of support is required, even a completed and sufficient affidavit is not always enough to address the public charge concern. If the petitioner is only barely able to meet the requirements, the INS can demand an additional sponsor. If the State Department determines that the affidavit is not sufficient, whether because it is technically incomplete or because the consular officer does not find it credible, the applicant is allowed to submit another affidavit.
Next week we will discuss the affidavit of support in detail.