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by William K. Zimmer, in Immigration Matters

 

 

Contrast the public charge exclusion provision with Emma Lazarus’ lovely poem inscribed on the Statute of Liberty in New York:

 

Give me your tired, your poor,

Your huddled masses, yearning to breath free,

The wretched refuse of your teeming shore,

Send these, the homeless, tempest tost to me,

I lift my lamp beside the golden door.

 

It seems that, in 1882 Congress deemed the “poor,” the “huddled masses” and another country’s “wretched refuse” to be undesirable aliens in the United States.

Lazarus’ poem was written in 1883.  It was placed on an interior wall of the Statue of Liberty pedestal in 1903.

The contrast between Lazarus’ poem and the law that existed at the time it was written demonstrates the tension that has existed for at least 135 years in the United States between our romantic notion of the United States as a land of immigrants and the aspirational notion of the United States as a nation of laws.

The standard for determining who is likely to become a public charge for the purpose of determining eligibility for immigration to the United States has had a long time to evolve.  Yet the tension between the American romance with immigrants and immigration law which ultimately is aimed at promoting the best interests of United States citizens seems to be on display in the tug of war over the standard for identifying who is likely to become a public charge.

Regulations governing the standard for determining who is likely to become a public charge based on receipt of public benefits state that if:  

The alien has received or has been certified or approved to receive one or more public benefits, as defined in § 212.21(b), for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months prior to the alien's application for admission or adjustment of status on or after October 15, 2019.

See 8 C.F.R. § 212.21(a).

Public benefits are defined with specific exceptions by governing regulations as follows:

(1) Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:

(i) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;

(ii) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.; or

(iii) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); and

(2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c;

(3) Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD under 42 U.S.C. 1437f;

(4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);

(5) Medicaid under 42 U.S.C. 1396 et seq., except . . . ;

(6) Public Housing under section 9 of the U.S. Housing Act of 1937.

 

See 8 C.F.R. § 212.21(b).

On February 24, 2022, the Department of Homeland Security ("DHS") gave notice of proposed rulemaking that would change the specific time limits imposed on receipt of public benefits under 8 C.F.R. § 212.21(a).  Under the proposed rule:

[T]he a noncitizen would be considered likely at any time to become a public charge if they are likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

See 87 FR 10570.

Although the standard for who is likely to become a public charge seems to fluctuate, the fundamental legal doctrine of describing undesirable immigrants as persons likely to become a public charge established in section 2 of the Act of August 4, 1882 remains firmly in place. 

The following summary of cases reflects the development of the public charge standard relating to the exclusion ground based on likelihood of becoming a public charge:

1. Matter of A-, 19 I&N Dec. 867 (R.S. 1988)
   1. Regional Commissioner reversed Regional Legalization Director.
   2. Rationale:  The receipt of prior public assistance was only one factor to consider, and the regional director had failed to consider the alien’s age and capacity to work.
2. Matter of Perez, 15 I&N Dec. 136 (BIA 1974)
   1. The Board of Immigration Appeals ("BIA") determined that an alien’s reliance on welfare by itself is not enough to find that the alien is likely to become a public charge.
3. Matter of Martinez-Lopez, 10 I&N Dec. 409, at 421 – 22 (BIA 1962; A.G. 1964)
   1. Attorney General discussed the meaning of “likely at any time to become a public charge.”
   2. Excerpt:
      1.  

1. 1.  
      1. requires more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present. A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relatives in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.

 

4. Matter of Harutunian, 14 I&N Dec. 583 (R.C. 1974)
   1. Regional Commissioner held that a 70 year-old adjustment applicant who lacked the means to support herself in the United States, and who had been and expected to be dependent on old-age assistance in California was excludable because she was likely to become a public charge.
   2. Excerpt:
      1. . . . any alien who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support is excludable as likely to become a public charge . . .
5. Matter of Vindman, 16 I&N Dec. 131 (R.C. 1977)
   1. Two parolees (husband and wife; 66 and 54 years of age) who had applied for adjustment of status found likely to become a public charge. 
   2. Governing Facts:  Both applicants were receiving public assistance with no prospects for earning a livelihood or providing self support.

The factors derived from the above cited case law ultimately resulted in a totality of circumstances approach consisting of the following factors:

1. Age;
2. History of Employment;
3. Capacity to Earn a Livelihood;
4. Current Financial Status;
5. Literacy;
6. Physical Condition;
7. Mental Condition;
8. Family Situation;
9. Affidavits of Support;
10.  Willingness and Ability of Friends/Family to Assist

Here is an example of how the BIA applied the affidavit of support requirement.

In 2018, the BIA determined that an applicant for adjustment of status who was admitted on a valid K-1 nonimmigrant visa, fulfilled the terms of the visa by marrying the petitioner, and was later divorced must submit an affidavit of support from the petitioner to establish that he or she is not inadmissible as a public charge.  Matter of Song, 27 I&N Dec. 488 (BIA 2018).

In Matter of Song, the respondent who is a native and citizen of Cambodia entered the United States on a K-1 nonimmigrant fiancée visa on November 25, 2011.

She married her United States citizen fiancé, the visa petitioner, within 90 days (as required by law).

On February 3, 2012, the respondent filed an application for adjustment of status with the U.S. Citizenship and Immigration Services (“USCIS”), along with a Form I-864 (Affidavit of Support Under Section 213A of the Immigration and Nationality Act, as amended ("the Act") executed by the petitioner.

Unfortunately for the respondent, while the application was pending the marriage broke down.

On July 10, 2012, the petitioner wrote to the USCIS to withdraw his affidavit of support.

The couple divorced on December 20, 2012.

The BIA reasoned in Matter of Song that:

• Section 212(a)(4)(B)(i)(IV) of the Act states that in determining whether an alien is inadmissible as a public charge, “the Attorney General shall at a minimum consider” various factors, including the alien’s “assets, resources, and financial status.” (Emphasis added.)
• But according to section 212(a)(4)(B)(ii), “the Attorney General may also consider any affidavit of support.” (Emphasis added.)
• However, under section 212(a)(4)(C)(ii) of the Act, aliens with immediate relative status or family-based preference classification are inadmissible unless “the person petitioning for the alien’s admission . . . has executed an affidavit of support . . . with respect to such alien.”
• Although fiancé(e) visa holders differ in certain respects from aliens in those categories (Matter of Sesay, 25 I&N Dec. at 439–40) the governing regulation at 8 C.F.R. § 213a.2(b) (2018) explicitly makes them subject to the same statutory requirement.

It is interesting to note that an issue not addressed in Matter of Song is that 8 C.F.R. §213a.2(b) only applies to the DHS, and not the Immigration Court.  Regulations that govern the Immigration court are found under Chapter V, Subchapter A, and begin with Part 1001.  The above cited regulation is not carried over to Chapter V, Subchapter A.

Nevertheless, it seems that the BIA requires an affidavit of support, at least for K-1 nonimmigrant fiancée visa holders, for adjustment to lawful permanent resident status.

One might argue that because 8 C.F.R. §213a.2(b) was not carried over to Chapter V, Subchapter A in Title 8 of the Code of Federal regulations, it is not binding before an Immigration  Judge.  It seems unlikely, however, that the BIA would approve a standard for Immigration Judge decisions that differs from the standard for DHS decisions relating to the requirement of an affidavit of support.

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