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AILA, NILC and CLINIC, Aug. 28, 2018 - "The American Immigration Lawyers Association (AILA), Catholic Legal Immigration Network, Inc., and the National Immigration Law Center write to express our concern over current policy relating to the assessment and determination as to whether a visa applicant is “likely at any time to become a public charge” under INA §212(a)(4). In January 2018, the Department of State made significant changes to the public charge provisions of the Foreign Affairs Manual (FAM). Those changes appear to be the catalyst for the issues described herein.
Although the Department has long-employed a “totality of the circumstances” analysis when assessing the public charge issue, until January, a properly completed Form I-864, Affidavit of Support, was typically enough to satisfy INA §212(a)(4). Previously, 9 FAM 302.8-2(B) stated:
A properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the totality of the circumstances analysis.
In January 2018, however, this language was removed from the FAM. Revised 9 FAM 302.8-2(B) now directs officers to view the affidavit of support only as a “positive factor” in the totality of the circumstances analysis. As a result, many individuals have since appeared for consular interviews presenting Forms I-864 demonstrating access to income at or above the legal requirements only to be told that this is no longer sufficient. The experiences of visa applicants indicates a departure from past, long-established practice. Implemented without adequate notice to the public, this new approach to the public charge determination has had a substantial and unexpected impact on visa applicants."