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Green Card Denials at U.S. Embassy based on Public Charge.

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02 Mar 2020

New rules are being applied at the U.S. Embassy to determine if an immigrant visa applicant will be a “public charge.”  One of the changes decrease the weight given to the affidavit of support in deciding whether a person is likely to become a public charge. Previously, a qualifying affidavit of support (Form I-864) was generally sufficient to establish that an immigrant visa applicant was not likely to become a public charge.

An affidavit of support still must be submitted, where required, but the weight it carries has diminished. Now, a “properly filed and sufficient Form I-864 may not necessarily overcome a denial on public charge at Embassy interview.  Instead, it is merely one, “positive factor” as part of the totality of the circumstances test.

The “totality of the circumstances” involves consideration of other factors such as the applicant’s age, health, family status, assets, resources, financial status, education, and skills.  This test is not new, but the fact that an affidavit of support that meets the financial requirements has been reduced in weight to simply one factor of many is new. A sufficient affidavit of support generally was considered adequate evidence that the person had overcome any public charge concerns. It is now considered only a factor in the assessment of whether an immigrant will be a public charge or dependent on U.S. government benefits such as medicaid or food stamps.

Thereby, expect to see the language below in denial notices for green cards issued by the U.S. Embassy:

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Examples of documents to bring to the Embassy interview to overcome public charge at embassy interview:

All immigrant visa (green card) applicants appearing for their interview at the U.S. Embassy need to be aware that more documentary evidence (besides a Form I-864 affidavit of support) will be required to prevent a denial based on public charge at embassy interview.

Family Based Petitions and Fraudulent Misrepresentations

Back in 2017, in a significant change of policy, Secretary of State Rex W. Tillerson wrote that visitors who enter the U.S. must follow through on their “stated plans” for at least three months (90 days). “Stated plans” means what they listed on their B-1/B-2 application, what they told the interviewing officer at the Embassy, and what they told the Custom and Border Protection (CBP) officer when they entered the U.S. at the airport. That change in policy is as important today as it was back in 2017. 

If a visitor does something inconsistent with what they told the consular official or CBP officer during those first three months (90 days) — such as marry an American citizen, go to school or get a job — it will be presumed that they have deliberately lied or committed a fraudulent misrepresentation to gain an immigration benefit.  Such a lie would result in revocation of the B-1/B-2 visa, denial of a change in status, and possible deportation from the U.S.  A “lie” would also include booking an airline ticket for two weeks and stating to a CBP officer you will stay only two weeks in the U.S. and then once arrive in the U.S. changing your airline ticket to a longer period of time such as 3-6 months.

Changes of plans that occur after three months may still raise red flags but are not presumed to be the result of “willful misrepresentation,” the cable said. Under previous rules, a change in plans was deemed to be a fraudulent misrepresentation only for the first month after arrival in the United States.

But this rule does not generally apply to citizens of 38 countries — including most of Europe and longstanding allies like Australia, New Zealand and Japan — who do not need a visa or an explicit travel, business or educational plan before coming to the United States.

For more information on the new rules for Public Charge and additional information on fraudulent misrepresentation, please contact us at The Santos Law Offices, PA. Call 305-417-4111 for a free consultation. 

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