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DOS, Jan. 4, 2018 -
"UNCLASSIFIED 18 STATE 942
January 4, 2018
From: SECSTATE WASHDC
Subject: Update to 9 FAM 302.8 Public Charge - INA 212(A)(4)
2. Guidance at 9 FAM 302.8 has been updated and reorganized.
3. INA 212(a)(4)(B) continues to provide that officers must take into account the totality of thealien's circumstances at the time of visa application, including, at a minimum: (a) age,(b) health, (c) family status, (d) assets, resources, financial status, and (e) education and skills.As revised, 9 FAM 302.8-2(B)(2) now includes detailed guidance to help officers assess thesestatutory factors when considering the totality of the applicant's circumstances. For instance, 9FAM 302.8-2(B)(2)(f)(1)(b)(i) provides that an officer may consider "past or current receipt ofpublic assistance of any type" in determining whether an applicant is likely to become a publiccharge, although officers must make a determination based on the present circumstances.Consequently, an applicant’s current receipt of public assistance may not raise significant futureconcerns, based on the totality of circumstances. For example, if the applicant just completed aneducational degree and received a credible job offer, the applicant's education and skills mightprovide a sufficient basis to find that the applicant overcomes any public charge ineligibilityconcerns in spite of current lack of assets. Alternatively, an applicant’s past receipt of publicassistance could be very significant: for example, if the applicant’s spouse was the family'sprimary income earner, but recently died. In this case, the applicant's recent change in familystatus and likely change in financial status would weigh heavily in considering the totality of thecircumstances.
4. Additionally, 9 FAM 302.8-2(B)(3), paragraph b, as revised provides that a “properly filedand sufficient, non-fraudulent” Affidavit of Support by itself may not satisfy the INA 212(a)(4)public charge requirement. The Affidavit of Support requirement at INA 213A and the publiccharge ineligibility at INA 212(a)(4) are distinct requirements which, where both are applicable,must both be satisfied. Accordingly, a properly filed and sufficient Affidavit of Support isessential, but does not preclude denial on public charge grounds. Officers should consider suchaffidavits as one factor in the totality of the applicant's circumstances, and, may find theapplicant is likely to become a public charge if, for example, the applicant is in very poor health,is unable to work, and is likely to incur significant medical costs. Similarly, if an applicant doesnot clearly overcome public charge concerns but could with a joint sponsor, then a consularofficer's evaluation of the likelihood the joint sponsor would voluntarily meet his or her financialobligations toward the applicant becomes vital to the adjudication. See 9 FAM 302.8-2(B)(3)(b)(1)(b).
5. The updated guidance at 9 FAM 302.8 is effective immediately."