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State Department’s Change To Public Charge Guidance In Foreign Affairs Manual Will Result in Many More Visa Refusals

The Trump Administration has opened another front in its war on legal immigration to the United States, which is to broaden the definition of who is likely to become a public charge.  One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of status to permanent residence within the United States.  This proposal is still in draft format and has not yet become a rule. However, if and when it does become a rule, foreign nationals who rely on government benefits will be more at risk of being found inadmissible under the public charge ground. Current policy allows officials to consider only two types of public benefits that would result in a negative public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense.

While the Trump administration’s proposed regulatory change is winding its way through bureaucratic channels, the State Department’s Foreign Affairs Manual (FAM), which is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad, has already made it easier to find visa applicants inadmissible under the public charge ground. The State Department can freely change the FAM at its choosing without even providing notice to the public or an opportunity to comment.

Under INA 212(a)(4), a foreign national seeking to be admitted to the United States as either a nonimmigrant or an immigrant will be found inadmissible if he or she is likely to become a public charge at any time. The law allows officials to look at a foreign national’s age, health, family status, assets, resources and financial status; and education and skills.

Pursuant to INA 213A, a properly executed affidavit of support by a US sponsor, Form I-864, may overcome a public charge determination in all family immigration and in some employment-based cases. An I-864 clearly constitutes a contract between the sponsor and the government. See INA 213A(a)(1)(B).

The State Department at 9 FAM 302.8-2 (amended on 1/3/2018) broadened the ability of a consular officer to make a public charge determination, rendering it easier to refuse an immigrant visa. Specifically, new 9 FAM 3012.8-2(B)(2) provides:

  1. In General:
    1. In making a determination whether an applicant is inadmissible under INA 212(a)(4)(B), in every case you must consider at a minimum the applicant’s:
      1. Age;
      2. Health;
      3. Family status;
      4. Assets, resources, and financial status; and
      5. Education and skills.
    2. These factors, and any other reasonable factors considered relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.
    3. Value of the Affidavit of Support: A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the “totality of circumstances” analysis, which requires the consideration of the factors listed in paragraph (1) above.

Under the new FAM guidance, a properly executed Form I-864 will only be considered “a positive factor in the totality of circumstances” even though it is a binding enforceable contract that allows the government agency to claim reimbursement of the cost of the benefit that was provided to the foreign national. Compare the new language with the January 19, 2017 version of the public charge definition in the FAM,  available at https://web.archive.org/web/20170119231252/https://fam.state.gov/FAM/09FAM/09FAM030208.html, which was just before the start of the Trump administration

The old 9 FAM 302.8-2(B)(3)(a.)(2) stated:

2. These factors, and any other factors thought relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.  As noted in 9 FAM 302.8-2(B)(2), 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.  Nevertheless, the factors cited above could be given consideration in an unusual case in which a Form I-864 has been submitted and should be considered in cases where Form I-864 is not required.

See also the old 9 FAM 302.8-2(B)(2)(c):

 Effect of Form I-864 on Public Charge Determinations:  A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to overcome the INA 212(a)(4) requirements.  In determining whether the INA 213A requirements creating a legally binding affidavit have been met, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor – the affidavit is enforceable regardless of the sponsor’s actual intent and should not be considered by you, unless there are significant public charge concerns relating to the specific case, such as if the applicant is of advanced age or has a serious medical condition.  If you have concerns about whether a particular Form I-864 may be “fraudulent”, you should contact CA/FPP for guidance.

Under the new FAM guidance, a non-fraudulent I-864 will no longer be considered sufficient to overcome the public charge requirements under INA 212(a)(4). Pursuant to the old FAM guidance, the credibility of an offer of support from a person who met the definition of a sponsor and who had verifiable resources was not a factor. A DOS official at the Federal Bar Association’s Immigration Conference on May 18 and 19, 2018 in Memphis, TN confirmed that the I-864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors. DOS will look behind the affidavit of support if the consular officer believes that the sponsor is not likely to comply with his or her obligations. By way of an example, according to the DOS official, if a co-sponsor has already executed other I-864s in the past, then that will be viewed as an adverse factor. (See Lily Axelrod’s excellent summary of the proceedings of the FBA immigration conference on the Cool Immigration Lawyers page on Facebook).

The I-864 has always been thought of as a binding contract between the sponsor and the government, and thus discrediting an I-864 that is otherwise non-fraudulent seems to undermine the contractual nature of the I-864. Even if a sponsor has executed other I-864s in the past, that should not result in an adverse credibility determination if the sponsor has sufficient documented income to meet 125% of the federal poverty guidelines based on his or her household size. Under the new FAM provisions, deeming a properly executed I-864 as overcoming public charge will no longer be the case.

Indeed, the change to the public charge definition in the FAM is causing additional havoc to otherwise eligible applicants for immigrant visas. Those who already got approved I-601A provisional waivers to overcome the 3 or 10 year bars under INA 212(a)(9)(B)(i) and have proceeded overseas to process their immigrant visas are now finding themselves being found inadmissible for likely becoming a public charge under INA 212(a)(4). If the visa applicant is found inadmissible for another ground other than under INA 212(a)(9)(B)(i), the I-601A waiver is revoked and the applicant has to file a new I-601 to again overcome the 3 or 10 year inadmissibility bars under INA 212(a)(9)(B)(i) even if the applicant is able to overcome the public charge ground by providing additional evidence. This can cause a delay of at least a year and result in uncertainty until the new I-601 is approved. One suggested way to ameliorate this unnecessary hardship is to issue an INA 221(g) letter requesting evidence to overcome the public charge ground rather than a flat out refusal under INA 212(a)(4).

The new FAM assessment of public charge also appears to run contrary to 8 CFR 213a.2(c)(2)(iv), which provides:

Remaining inadmissibility on public charge grounds. Notwithstanding the filing of a sufficient affidavit of support under section 213A of the Act and this section, an alien may be found to be inadmissible under section 212(a)(4) of the Act if the alien’s case includes evidence of specific facts that, when considered in light of section 212(a)(4)(B) of the Act, support a reasonable inference that the alien is likely at any time to become a public charge.

While it may be permissible under 8 CFR 213a.2(c)(2)(iv), to find public charge inadmissibility despite a proper affidavit of support, it has to be based on “evidence of specific facts” that “support a reasonable inference that the alien is likely . . . to become a public charge.” The new FAM guidance on the other hand considers a non-fraudulent I-864 only as a positive factor in the totality of circumstances, which includes the foreign national’s age, health, family status, assets, resources and financial status and education and skills.

Applicants should no longer assume when they process an immigrant visa at a US consulate that an I-864 will be deemed to overcome a public charge finding. The visa applicant must also demonstrate his or her own history of employment, or ability to obtain employment, along with prior tax filings. The visa applicant must also be ready to demonstrate a meaningful relationship with a co-sponsor, if there is one.  Finally, the I-864 must be accompanied by the required corroborating documentation pertaining to the sponsor such as tax returns, employment documents and evidence of assets, if applicable. Nothing should be taken for granted under the Trump administration, whose avowed objective is to restrict legal immigration to the United States. Until the administration can get its way in Congress by restricting immigration to only a select few under a Merits-Based immigration system, it will try every other way to restrict immigration, including expanding the definition of public charge.

Reinterpreting the 90 Day Misrepresentation Provision in the Foreign Affairs Manual

As we previously blogged, the State Department abruptly amended the Foreign Affairs Manual in September 2017 to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.

To reiterate, the updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule ”, the FAM is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad.

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

    1. Engaging in unauthorized employment;
    2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
    3. A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
    4. Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

A literal reading of the four criteria seem to suggest that the inconsistent activity resulting in a presumption of misrepresentation must have occurred in the absence of filing an application for change of status or adjustment of status that would otherwise authorize such an activity.  The way the FAM provision literally reads is contrary to how this has previously been understood, which is that if a foreign national filed an adjustment or change of status application within 90 days of entry, it created a rebuttable presumption that the person misrepresented his or her intentions upon initial entry. Prior to the introduction of the new FAM provision, it was similarly understood that filing a change of status or adjustment of status application within 30 days created a rebuttable presumption of fraud or willful misrepresentation. If such an application was filed more than 60 days later, there would be no such presumption.

Let’s carefully start our analysis with the fourth criterion under 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv):

Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30th day, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the fourth criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. According to the way 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) literally reads, which a DOS official confirmed recently at a conference,  the 90 day guidance is not implicated if the foreign national files a change of status or adjustment of status application even within 90 days and then seeks to engage in conduct consistent with the new status. The guidance is implicated, rather, if the foreign national engages in conduct that is inconsistent with their present status such as working while in B-2 status without first filing and obtaining a change of status that would authorize such work activity. In other words, filing a change or adjustment of status application within 90 days of entry ought not create a presumption of willful misrepresentation for a consular officer especially if it was approved by the USCIS.

This interpretation, while at first blush appears not to square with the third criterion,  9 FAM 302.9-4(B)(3)(g)(2)(b)(iii) (“A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”)  may be harmonized if it is read in conjunction with the fourth criterion at 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv)(Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment”).

This nuanced reading may run contrary to the way the presumption of misrepresentation has always been understood, which has meant that a nonimmigrant who entered on a B-2 visa, married a US citizen and applied for adjustment of status within 90 days would presumptively be found to have made a misrepresentation at the time of entry. Such a reading may not be universally accepted and obviously should not be relied upon until it gains more acceptance by all the agencies. It may never gain acceptance since the same language in current 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) existed under the old version of the 30-60 day rule too and was never interpreted in this way previously.   The USCIS has questioned adjustment applicants regarding their intention at the time of admission when they filed soon after entry into the US. Also, when one files a change of status from B-2 to F-1, the USCIS often questions when the applicant contacted the school from the time of admission in order to gage the applicant’s true intention and whether it was contrary to the purpose under the B-2 visa. Still, the literal reading ought to be invoked as a defense to those who have been accused of misrepresentation, but never engaged in inconsistent activity prior to filing an application for change of status or adjustment of status.

This reading also makes perfect policy sense. It makes little sense to penalize a student who has been living lawfully for years in F-1 status, and who after travelling abroad on a brief vacation marries his fiancée and files an adjustment of status application within 90 days. Under a literal reading of the FAM guidance, the presumption of fraud or misrepresentation is not implicated, although under the way it has been traditionally understood, it would be because the student unfortunately took this vacation abroad prior to his marriage and the filing of the adjustment application within 90 days. Moreover, the literal reading does not totally eviscerate the presumption of fraud or misrepresentation. The 90 day guidance would still apply to those who violate immigration laws. Thus, a person who enters as a tourist and starts working within 90 days without filing for a change of status to a nonimmigrant work visa status would implicate the rule when she next visits the US Consulate for a new visa. The prior activity would have resulted in a rebuttable presumption of fraud or misrepresentation, and she may be found inadmissible under INA § 212(a)(6)(C)(i). However, if this same person, like the violinist in our prior example, followed the law and started working only after the O-1B request for a change of status was approved, the 90 day rule ought not be implicated.

Furthermore, a person would not be able to get away when there is obvious evidence of a misrepresentation at the time of applying for a visa or upon admission. For example, if a person applies for a business visa supported by documentation to further a business purpose in the US, and upon entry, does not conduct any business activities whatsoever but instead seeks admission at a school and applies for change of status to F-1, that person would most likely be found inadmissible for misrepresenting that there was a business purpose to visit the US when there was none. A literal reading would only likely eliminate a presumption of misrepresentation where the person otherwise came to the US pursuant to the stated purpose and then applied for a change of status to perform another activity within 90 days.

The literal reading of the 90-day provision in the FAM also supports the dual intent doctrine. Notwithstanding the codification of dual intent in statute and regulation, there is a recognition of inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States upon the occurrence of certain conditions is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g. Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent). Even the most recent change in the F-1 nonimmigrant standard implicitly allows dual intent, specifically stating that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application.” 9 FAM 402.505(E)(1). Thus, persons should not be penalized if they wish to enter the US to engage in activities that may be inconsistent with their initial visa provided they pursued activities consistent with the initial purpose and then successfully file change of status or adjustment of status applications that would permit them to pursue those other activities.

While our blog by no means should serve as a green light for people to file applications to change status or adjust status within 90 days, its purpose is to at least create awareness of another way of reading the 90 day provision that makes perfect sense as it encourages lawful conduct and awareness of a potential defense to those who are found inadmissible when they filed applications within 90 days to seek permission to engage in activities that may have not been consistent with their original visa.

 

DEPORTING A US CITIZEN CHILD? TAKE A LEAF OUT OF THE STATE DEPARTMENT’S BOOK ON BIRTHRIGHT CITIZENSHIP

By Cyrus D. Mehta

This week, while we have all been stunned at the way Customs and Border Patrol (CBP) sent a four year old US citizen child packing out of the country to Guatemala, http://edition.cnn.com/2011/OPINION/03/23/navarrette.child.deported/?hpt=Sbin, even though her parents lived in the US, we can take some comfort that the State Department scrupulously adheres to birthright citizenship enshrined in the 14th Amendment of the US Constitution.

Contrary to the common notion -that parents come to the US to give birth to children so that they may become US citizens – some non-US citizen parents do not desire that their minor children remain US citizens, notwithstanding their birth in the US. Their main motivation is that if they choose not to live in the US permanently, they would rather that the child enjoys the citizenship of their nationality so that he or she does not suffer any potential impediments later on in that country, such as the inability to vote, attend educational institutions or stand for elected office. Often times, the country of the parent’s nationality and the United States lay claims on the child’s citizenship, and this may often create conflicts between the citizenship laws of the two countries, particularly if the child will return to its parents’ country and live there.

For instance, a child born to Indian citizen parents in the US can still claim to be an Indian citizen by descent, even though India does not otherwise permit dual nationality, provided that the parents declare that the child does not hold the passport of another country, http://www.mha.nic.in/pdfs/ic_act55.pdf. This may not be possible if the child is born in the US, and thus a US citizen and potentially an Indian citizen, since the State Department’s regulation provides that “[i[t is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid passport.” See 22 CFR §53.1. Therefore, if the child obtains an Indian passport while in the US, it will still need to depart the US with a US passport, and this may conflict with the Indian requirement of submitting a declaration that the child does not hold the passport of another country.

Moreover, even after the child has left the US, unless the child can effectively renounce US citizenship at a US Consulate (and that too could be problematic as a child cannot make a knowing renunciation), the child will most likely have to return to the US on the US passport. Regarding the renunciation of US citizenship by a minor, the State Department’s Foreign Affairs Manual at 7 FAM 1292 clearly states that parents or guardians cannot renounce or relinquish the citizenship of a child who acquired US citizenship at birth. The relevant extract from 7 FAM 1292 is worth noting:

  1. occasionally, CA/OCS or a post abroad will receive an inquiry from the parent of a child born in the United States who acquired US citizenship at birth protesting the “involuntary” acquisition of US citizenship.

  1. Jus soli (the law of the soil) is the rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes. The 14th Amendment states, in part, that: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

  1. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court examined at length the theories and legal precedents on which U.S. citizenship laws are based and, in particular, the types of persons who are subject to U.S. jurisdiction.

  1. Children born in the United States to diplomats accredited to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it [citation omitted].

  1. Parents or guardians cannot renounce or relinquish the U.S. citizenship of a child who acquired U.S. citizenship at birth.

While the FAM leaves open the possibility for a minor to renounce citizenship, there must be a determination by the consul whether the minor had the requisite maturity and knowing intent, free from parental influence. According to 7 FAM 1292(i)(3), “Minors who seek to renounce citizenship often do so at the behest of or under pressure from one or more parent. If such pressure is so overwhelming as to negate the free will of the minor, it cannot be said that the statutory act of expatriation was committed voluntarily. The younger the minor is at the time of renunciation, the more influence the parent is assumed to have.” 7 FAM 1292(i)(2) further states, “Children under 16 are presumed not to have the requisite maturity and knowing intent.” It should be noted, though, that even if a child successfully renounces US citizenship, upon reaching 18 years, the child has a six-month opportunity to reclaim US nationality. See INA § 351(b).

The deportation of the 4 year old child is one recent example. CBP’s sister agency, Immigration and Customs Enforcement (ICE), has also been notorious for detaining and deporting US citizens in recent times, http://stateswithoutnations.blogspot.com/2010/07/us-citizens-detained-and-deported-2010.html despite an ICE memo admonishing its officers to treat claims by US citizens with care and sensitivity, http://www.ice.gov/doclib/detention-reform/pdf/usc_guidance_nov_2009.pdf. In a time when a very vocal minority is advocating for the repeal of birthright citizenship, government agencies in charge of enforcing immigration laws ought not to be swayed by the passions of the day, and must scrupulously ensure that a child born in the US, regardless of the parents’ status, is treated as a US citizen under the 14th Amendment of the US Constitution, like the State Department does.