State Department's Cable on Public Charge
INITIALS
APPR: NHS ...
DRAFT: HEO ...
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CLR 2: BCU ...
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CLR 9: ___ ...
UNCLASSIFIED
CA/VO/L/R:HEODOM:HEO
í TIME \@ "MM/dd/yy" ñ05/19/99Ñ 663-1204
CA/VO:NHSAMBAIEW
CA/VO/L:SKFISCHEL CA/VO/P:BCUMMINGS CA/VO/F:JJACOBS ÃCA/VO:MAPATTERSON
DPC:IBUENO INS:BSTRACK ÃS-S/O:
M/FSI/CON/MBERNIER-TOTH, CA/FPP:MHUGHES, L/CA:CWBROWN
IMMEDIATE ALDAC, ZEN DOHA POUCH, ZEN TIRANA POUCH
VISAS
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: INA 212(A)(4) PUBLIC CHARGE: POLICY GUIDANCE
REF: 9 FAM 40.41
SUMMARY:
THIS IS AN ACTION CABLE. IT CLARIFIES THE DEFINITION OF "PUBLIC
CHARGE" AS A PERSON "LIKELY TO BECOME PRIMARILY DEPENDENT ON
THE GOVERNMENT FOR SUBSISTENCE, AS DEMONSTRATED BY EITHER THE RECEIPT
OF PUBLIC CASH ASSISTANCE FOR INCOME MAINTENANCE, OR INSTITUTIONALIZATION
FOR LONG-TERM CARE AT GOVERNMENT EXPENSE." THE CABLE ALSO PROVIDES
GUIDANCE ON THE USE OF THIS DEFINITION. THE GUIDANCE WILL BE ANNOUNCED
TO THE PUBLIC ON TUESDAY, MAY 25 AND WILL BECOME EFFECTIVE FOR ALL VISA
ADJUDICATIONS MADE ON OR AFTER THAT DAY. THE GUIDANCE IS BEING CLOSELY
HELD PRIOR TO THE PUBLIC ANNOUNCEMENT. THEREFORE, CONSULAR OFFICERS ARE
INSTRUCTED NOT TO DIVULGE THE CONTENTS OF THIS CABLE TO ANYONE OUTSIDE
OF YOUR EMBASSIES AND CONSULATES PRIOR TO MAY 25. THE GUIDANCE IS BASED
UPON THE CONTENT OF A NEW REGULATION THAT INS WILL PUBLISH THE FOLLOWING
DAY IN THE FEDERAL REGISTER. AMENDMENTS TO THE NOTES IN 9 FAM 41.40 ARE
ALSO PROVIDED. END SUMMARY.
BACKGROUND:
OVER A PERIOD OF SEVERAL MONTHS THE VISA OFFICE HAS PARTICIPATED IN INTERAGENCY
DISCUSSIONS CONCERNING THE INTERPRETATION OF INA SECTION 212(A)(4), THE
PUBLIC CHARGE PROVISION. THE MEETINGS WERE HELD AGAINST A BACKGROUND OF
CONFUSION IN THE IMMIGRANT COMMUNITY CONCERNING THE EFFECT OF RECENT LAWS,
ESPECIALLY THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY
ACT (IIRIRA) AND THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION
ACT OF 1996 (PRWORA) ON PUBLIC CHARGE DETERMINATIONS. AMPLE EVIDENCE EXISTED
TO DEMONSTRATE THAT SUCH CONFUSION LED MANY PERSONS IN THE IMMIGRANT COMMUNITY
TO CHOOSE NOT TO SIGN UP FOR IMPORTANT BENEFITS, ESPECIALLY HEALTH-RELATED
BENEFITS, WHICH THEY WERE ELIGIBLE TO RECEIVE, AS THEY WERE CONCERNED
THIS WOULD AFFECT THEIR OR A FAMILY MEMBER’S IMMIGRATION STATUS.
WHEN THE PROBLEM REACHED THE MAGNITUDE AT WHICH USG DOMESTIC POLICY EXPERTS
BEGAN TO FEAR AN ADVERSE IMPACT ON PUBLIC HEALTH AND WELFARE, IT BECAME
EVIDENT THAT CLARIFICATION OF THE PUBLIC CHARGE PROVISION WAS NEEDED.
THE POLICY ANNOUNCED IN THIS CABLE IS BASED, IN PART, ON A DETERMINATION
BY THE DEPARTMENT OF JUSTICE THAT THE EXISTING IMMIGRATION LAW DOES NOT
SPECIFY WHICH KIND OF BENEFITS SHOULD BE CONSIDERED FOR PUBLIC CHARGE
DETERMINATIONS. THEREFORE, THE GOVERNMENT CAN ESTABLISH RULES FOR THE
CONSIDERATION TO BE GIVEN TO THE RECEIPT OF SUCH BENEFITS FOR THE PURPOSE
OF MAKING PUBLIC CHARGE DETERMINATIONS. ALTHOUGH IMMIGRATION CASE LAW
DOES NOT SPECIFY THE NATURE OF THE PUBLIC BENEFITS THAT MAY BE CONSIDERED,
THIS POLICY OF FOCUSING ON CASH FOR INCOME MAINTENANCE OR INSTITUTIONALIZATION
IS CONSISTENT WITH THE FACT PATTERNS IN THOSE CASES. FINALLY, A CAREFUL
REVIEW OF THE POLICY ANNOUNCED IN THIS CABLE AND OF EXISTING FAM NOTES,
E.G., 40.41 N9.1 AND 9.2, WILL REVEAL THAT, IN MANY WAYS, IT IS SIMPLY
AN EXTENSION OF WHAT HAS BEEN CONTAINED IN DEPARTMENT GUIDANCE FOR MANY
YEARS.
DEFINITION OF PUBLIC CHARGE:
EFFECTIVE TUESDAY, MAY 25, FOR INA 212(A)(4) PURPOSES IN ALL CASES (OTHER
THAN THOSE IN WHICH AN IMMIGRANT ALIEN IS REQUIRED TO BE FOUND INADMISSIBLE
DUE TO THE FAILURE OF THE ALIEN’S SPONSOR TO PROVIDE A PROPERLY COMPLETED
AND LEGALLY SUFFICIENT AFFIDAVIT OF SUPPORT ON FORM I-864), "PUBLIC
CHARGE" WILL BE DEFINED AS "LIKELY TO BECOME PRIMARILY DEPENDENT
ON THE GOVERNMENT FOR SUBSISTENCE, AS DEMONSTRATED BY EITHER (I) THE RECEIPT
OF PUBLIC CASH ASSISTANCE FOR INCOME MAINTENANCE OR (II) INSTITUTIONALIZATION
FOR LONG-TERM CARE AT GOVERNMENT EXPENSE." INSTITUTIONALIZATION FOR
SHORT PERIODS OF REHABILITATION DOES NOT CONSTITUTE SUCH PRIMARY DEPENDENCE.
TOTALITY OF THE CIRCUMSTANCES:
AS HAS ALWAYS BEEN THE CASE, PUBLIC CHARGE DETERMINATIONS EMPLOYING THIS
DEFINITION MUST BE MADE IN VIEW OF THE TOTALITY OF THE ALIEN’S CIRCUMSTANCES
AT THE TIME OF THE ALIEN’S APPLICATION FOR A VISA. HOWEVER, BECAUSE
OF THIS DEFINITION, AN ASSESSMENT OF THE ALIEN’S CIRCUMSTANCES MAY
NOT INCLUDE ANY CONSIDERATION OF THE PAST OR CURRENT RECEIPT BY THE ALIEN
OR A MEMBER OF THE ALIEN’S FAMILY OF ANY PUBLIC BENEFIT OTHER THAN
CASH ASSISTANCE FOR INCOME MAINTENANCE OR INSTITUTIONALIZATION FOR LONG-TERM
CARE. THEREFORE, A CONSULAR OFFICER SHOULD NOT INQUIRE OF ANY ALIEN WHETHER
THE ALIEN OR A FAMILY MEMBER HAS EVER RECEIVED ANY OTHER TYPE OF BENEFIT.
FURTHER, THE PAST OR PRESENT RECEIPT OF CASH ASSISTANCE FOR INCOME MAINTENANCE
OR INSTITUTIONALIZATION FOR LONG-TERM CARE IS TO BE TAKEN ONLY AS A FACTOR
ALONG WITH AGE, HEALTH, FAMILY STATUS, ASSETS, RESOURCES AND FINANCIAL
STATUS, AND EDUCATION AND SKILLS IN MAKING A DETERMINATION. A DETERMINATION
THAT THE ALIEN IS LIKELY TO BECOME A PUBLIC CHARGE SHOULD NOT BE BASED
SOLELY UPON THE RECEIPT OF THESE BENEFITS.
REPAYMENT OF BENEFITS:
A CONSULAR OFFICER SHOULD NOT INQUIRE INTO THE NEED TO REPAY TO THE GOVERNMENT
ANY SUBSISTENCE CASH BENEFIT OR COST OF INSTITUTIONALIZATION THE ALIEN
MAY HAVE RECEIVED. IT IS THE ROLE OF THE GOVERNMENT AGENCIES THAT HAVE
PROVIDED THE BENEFIT TO (1) MAKE FORMAL DETERMINATIONS OF FRAUD OR OVERPAYMENT
BEFORE THEY CAN REQUEST REPAYMENT, AND (2) ENSURE THAT PEOPLE ARE NOTIFIED
OF THOSE DETERMINATIONS AND THEIR RIGHT TO FILE APPEALS.
FAM NOTES:
BELOW ARE INSTRUCTIONS THAT WILL BE INCORPORATED INTO SECTION 40.41 OF
THE FOREIGN AFFAIRS MANUAL AT THE EARLIEST OPPORTUNITY. HOWEVER, THEY
ARE EFFECTIVE IMMEDIATELY AND SHOULD BE FOLLOWED BY ALL CONSULAR OFFICERS
NOW. CURRENT NOTES SHOULD BE RENUMBERED IN ACCORDANCE WITH THE NUMBERS
GIVEN TO THE NEW NOTES. THEREFORE CURRENT N1 BECOMES N3, ETC. FURTHER,
N8 AND ALL OF N9 WITH THE EXCEPTION OF N9.4 (WHICH BECOMES N8) SHOULD
BE STRICKEN. FINALLY IN THE NEW N8 (EXISTING N9.4), REMOVE THE WORDS "AS
A SUITABLE ALTERNATIVE TO THE SYSTEM NOTED ABOVE," FROM THE BEGINNING
OF THE NOTE. THE NEW NOTES ARE AS FOLLOWS:
"40.41 N1 DEFINITION OF PUBLIC CHARGE – FOR PURPOSES OF MAKING
A DETERMINATION OF VISA INELIGIBILITY UNDER INA SECTION 212(A)(4), THE
TERM ‘PUBLIC CHARGE’ MEANS ‘AN ALIEN WHO AFTER ADMISSION
INTO THE UNITED STATES IS LIKELY TO BECOME PRIMARILY DEPENDENT ON THE
GOVERNMENT FOR SUBSISTENCE AS DEMONSTRATED BY EITHER THE RECEIPT OF PUBLIC
CASH ASSISTANCE FOR INCOME MAINTENANCE (SEE N1.1 BELOW) OR INSTITUTIONALIZATION
FOR LONG-TERM CARE AT GOVERNMENT EXPENSE.
"40.41 N1.1 DEFINITION OF ‘PUBLIC CASH ASSISTANCE’ –
FOR THE PURPOSE OF MAKING A DETERMINATION OF PUBLIC CHARGE, ‘PUBLIC
CASH ASSISTANCE FOR INCOME MAINTENANCE’ INCLUDES: 1) SUPPLEMENTAL
SECURITY INCOME (SSI); 2) CASH TEMPORARY ASSISTANCE FOR NEEDY FAMILIES
(TANF), BUT NOT INCLUDING SUPPLEMENTAL CASH BENEFITS OR ANY NON-CASH BENEFITS
PROVIDED UNDER TANF; AND 3) STATE AND LOCAL CASH ASSISTANCE PROGRAMS THAT
PROVIDE FOR INCOME MAINTENANCE (OFTEN CALLED STATE ‘GENERAL ASSISTANCE’).
"40.41 N1.2 BENEFITS NOT CONSIDERED "PUBLIC CASH ASSISTANCE
FOR INCOME MAINTENANCE" – THERE ARE NUMEROUS FORMS OF GOVERNMENT
ASSISTANCE THAT AN ALIEN MAY HAVE ACCEPTED IN THE PAST, OR THAT A CONSULAR
OFFICER MAY REASONABLY BELIEVE AN ALIEN MAY RECEIVE AFTER ADMISSION TO
THE UNITED STATES, THAT ARE OF A NON-CASH AND/OR SUPPLEMENTAL NATURE.
THE PAST RECEIPT OF, OR THE LIKELIHOOD OF THE FUTURE RECEIPT OF SUCH NON-CASH
OR SUPPLEMENTAL ASSISTANCE MUST NOT BE CONSIDERED IN MAKING THE DETERMINATION
OF WHETHER AN ALIEN IS LIKELY TO BECOME A PUBLIC CHARGE. THESE BENEFITS
INCLUDE, FOR EXAMPLE, BUT ARE NOT LIMITED TO: THE FOOD STAMP PROGRAM;
THE MEDICAID PROGRAM (OTHER THAN PAYMENTS UNDER MEDICAID FOR LONG-TERM
INSTITUTIONAL CARE); THE CHILD HEALTH INSURANCE PROGRAM (CHIP); EMERGENCY
MEDICAL SERVICES; THE SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN,
INFANTS AND CHILDREN (WIC) PROGRAM; OTHER NUTRITION AND FOOD ASSISTANCE
PROGRAMS; OTHER HEALTH AND MEDICAL BENEFITS; CHILD CARE BENEFITS; FOSTER
CARE; TRANSPORTATION
VOUCHERS; JOB TRAINING PROGRAMS; ENERGY ASSISTANCE SUCH AS THE LOW INCOME
HOME ENERGY ASSISTANCE PROGRAM (LIHEAP); EDUCATIONAL ASSISTANCE SUCH AS
HEAD START OR AID FOR ELEMENTARY, SECONDARY OR HIGHER EDUCATION; JOB TRAINING;
IN-KIND EMERGENCY COMMUNITY SERVICES SUCH AS SOUP KITCHENS AND CRISIS
COUNSELING; STATE AND LOCAL PROGRAMS THAT SERVE THE SAME PURPOSES AS THE
FEDERAL IN-KIND PROGRAMS LISTED ABOVE; AND ANY OTHER FEDERAL, STATE, OR
LOCAL PROGRAM IN WHICH BENEFITS ARE PAID IN-KIND, BY VOUCHER OR BY ANY
MEANS OTHER THAN PAYMENT TO THE ELIGIBLE PERSON OF CASH BENEFITS FOR INCOME
MAINTENANCE. IN ALL CASES, IT IS THE UNDERLYING NATURE OF THE PROGRAM
THAT DETERMINES ITS RELEVANCY TO A PUBLIC CHARGE DETERMINATION, I.E.,
IS THE PROGRAM INTENDED TO BE A PRIMARY SOURCE OF CASH FOR INCOME MAINTENANCE?
SOME PROGRAMS PROVIDE CASH BENEFITS FOR SPECIAL PURPOSES THAT ARE SUPPLEMENTAL
AND NOT FOR INCOME MAINTENANCE, SUCH AS TRANSPORTATION OR CHILD CARE BENEFITS
PAID IN CASH OR ONE-TIME EMERGENCY PAYMENTS MADE UNDER TANF TO AVOID THE
NEED FOR ON-GOING CASH ASSISTANCE. ALSO, CASH BENEFITS THAT HAVE BEEN
EARNED CONTINUE TO BE IRRELEVANT TO A PUBLIC CHARGE DETERMINATION, E.G.,
SOCIAL SECURITY PAYMENTS, OLD AGE SURVIVORS DISABILITY INSURANCE (OASDI),
GOVERNMENT PENSION BENEFITS AND VETERANS BENEFITS.
"40.41 N1.3 INSTITUTIONALIZATION FOR LONG-TERM CARE – FOR THE
PURPOSE OF MAKING A DETERMINATION OF PUBLIC CHARGE, ‘INSTITUTIONALIZATION
FOR LONG-TERM CARE’ REFERS TO CARE FOR AN INDEFINITE PERIOD OF TIME
FOR MENTAL OR OTHER HEALTH REASONS, RATHER THAN TEMPORARY REHABILITATIVE
OR RECUPERATIVE CARE, EVEN THOUGH SUCH REHABILITATION OR RECUPERATION
MAY LAST WEEKS OR MONTHS.
"40.41 N1.4 CONSIDERATION OF CURRENT OR PRIOR RECEIPT OF PUBLIC
ASSISTANCE – IN ALL CIRCUMSTANCES, A CONSULAR OFFICER MAY CONSIDER
AS A PART OF THE EVIDENCE TO BE WEIGHED IN MAKING A DETERMINATION OF PUBLIC
CHARGE THE PAST OR CURRENT RECEIPT OF CASH BENEFITS FOR INCOME MAINTENANCE
OR OF INSTITUTIONALIZED CARE THAT WERE OR ARE THE PRIMARY FORM OF SUBSISTENCE
FOR THE ALIEN. PAST OR CURRENT RECEIPT OF OTHER TYPES OF BENEFITS SUCH
AS THOSE LISTED IN N1.2 MUST NOT BE CONSIDERED. FURTHER, NO INQUIRY SHOULD
BE UNDERTAKEN TO DETERMINE WHETHER AN ALIEN HAS PREVIOUSLY OR CURRENTLY
IS RECEIVING BENEFITS SUCH AS THOSE LISTED IN N1.2. PAST OR CURRENT RECEIPT
OF CASH BENEFITS FOR INCOME MAINTENANCE BY A FAMILY MEMBER OF THE VISA
APPLICANT MAY BE FACTORED INTO THE APPLICANT’S CASE ONLY WHEN SUCH
BENEFITS ALSO CONSTITUTE(D) THE PRIMARY MEANS OF SUBSISTENCE OF THE APPLICANT.
"40.41 N2 TOTALITY OF THE CIRCUMSTANCES – IN MAKING A DETERMINATION
OF WHETHER AN ALIEN IS LIKELY TO BECOME A PUBLIC CHARGE, A CONSULAR OFFICER
MUST CONSIDER, AT A MINIMUM, THE ALIEN’S AGE, HEALTH, FAMILY STATUS,
ASSETS, RESOURCES AND FINANCIAL STATUS, AND EDUCATION AND SKILLS. THESE
FACTORS, THE AFFIDAVIT OF SUPPORT IN THOSE CASES WHERE IT IS REQUIRED,
AND ANY OTHER FACTORS THOUGHT RELEVANT BY A CONSULAR OFFICER WILL MAKE
UP THE "TOTALITY OF THE CIRCUMSTANCES" THAT THE OFFICER MUST
CONSIDER WHEN MAKING A PUBLIC CHARGE DETERMINATION. CONSULAR OFFICERS
MUST BASE THEIR DETERMINATION OF THE LIKELIHOOD THAT THE APPLICANT MAY
BECOME A PUBLIC CHARGE ON A REASONABLE FUTURE PROJECTION OF THE ALIEN’S
PRESENT CIRCUMSTANCES. CONSULAR OFFICERS SHOULD POINT TO CIRCUMSTANCES
WHICH MAKE IT NOT MERELY POSSIBLE, BUT LIKELY THAT THE APPLICANT WILL
BECOME A PUBLIC CHARGE, AS DEFINED IN N1, ABOVE. CONSULAR OFFICERS MUST
NOT, HOWEVER, REFUSE A VISA BY ASKING "WHAT IF" TYPE QUESTIONS,
E.G., ‘WHAT IF THE APPLICANT LOSES THE JOB BEFORE REACHING THE INTENDED
DESTINATION’, OR ‘WHAT IF THE APPLICANT IS FACED WITH A MEDICAL
EMERGENCY.’ INSTEAD CONSULAR OFFICERS MUST ASSESS ONLY THE ‘TOTALITY
OF THE CIRCUMSTANCES’ EXISTING AT THE TIME OF VISA APPLICATION. FOR
THE SAME REASONS, CONSULAR OFFICERS MUST NOT BASE A DETERMINATION EXCLUSIVELY
ON THE PAST, OR EVEN THE CURRENT RECEIPT OF SUBSISTENCE CASH BENEFITS
OR INSTITUTIONALIZATION. RATHER, THE DETERMINATION SHOULD BE BASED UPON
ALL AVAILABLE FACTORS, INCLUDING, FOR EXAMPLE, A BONA FIDE OFFER OF EMPLOYMENT
THAT WOULD OBVIATE FURTHER NEED FOR CASH ASSISTANCE. FURTHER, IN ADDITION
TO THE CONDITIONS LISTED ABOVE, APPLICANTS WITH IMMEDIATE RELATIVE, FAMILY-BASED
AND CERTAIN EMPLOYMENT –BASED PETITIONS MUST ALSO HAVE FORM I-864,
AFFIDAVIT OF SUPPORT, PROPERLY EXECUTED ON THEIR BEHALF BY A RELATIVE
PETITIONER. OTHERWISE, THEY MUST BE CONSIDERED INADMISSIBLE AS LIKELY
TO BECOME A PUBLIC CHARGE."
ADDITIONAL REVISION OF 9 FAM 40.41:
THE DEPARTMENT PLANS A MORE EXTENSIVE REVISION OF SECTION 40.41 UPON
PUBLICATION OF INS’ FINAL RULE ON THE AFFIDAVIT OF SUPPORT. IN THE
MEANTIME, CONSULAR OFFICERS SHOULD APPLY THE CONTENT OF THIS CABLE IN
A MANNER CONSISTENT WITH THE DEPARTMENT’S EXTENSIVE GUIDANCE ON THE
I-864.
QUESTIONS:
QUESTIONS REGARDING THE GENERAL GUIDANCE CONTAINED IN THIS CABLE SHOULD
BE SUBMITTED TO CA/VO/L/R, ATTN:JAMES NEWTON. QUESTIONS REGARDING THE
APPLICATION OF THE GUIDANCE TO INDIVIDUAL CASES SHOULD BE SUBMITTED TO
CA/VO/L/A.
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