Inadmissibility: Public Charge (Part I)

This section will be divided up into parts to discuss different aspects of this inadmissibility.

When an immigrant wishes to adjust status in the US or enter the US as an immigrant, then the issue of admissibility is raised. In other words, is there any reason why the government will not allow you to adjust or in to the US., then you have an “inadmissibility.” Although there is a number of reasons the government might not allow you in, or stay as a green card holder, such as criminal issues, health issues and previous immigration violations, the one that has been making the news lately has been the inadmissibility of being a “public charge.”

Under § 212(a)(4) of the Immigration and Nationality Act (INA):

(A) In general.-Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

(B) Factors to be taken into account.-

(i)  In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under § 213A for purposes of exclusion under this paragraph.

(C) Family-Sponsored immigrants.-Any alien who seeks admission or adjustment of status under a visa issued under §§ 201(b)(2) or 203(a) is excludable under this paragraph unless-

(i) the alien has obtained-

(I) status as a spouse or a child of a United States citizen pursuant to clause (ii), (iii), or (iv) or § 204(a)(1)(A), or

(II) classification pursuant to clause (ii) or (iii) of § 204(a)(1)(B);

(III) classification or status as a VAWA self-petitioner; or

(ii) the person petitioning for the alien’s admission (and any additional sponsor required under § 213A(f) or any alternative sponsor permitted under paragraph (5)(B) of such section) has executed an affidavit of support described in § 213A with respect to such alien.

(D) Certain employment-based immigrants.-Any alien who seeks admission or adjustment of status under a visa number issued under § 203(b) by virtue of a classification petition filed by a relative of the alien (or by an entity in which such relative has a significant ownership interest) is excludable under this paragraph unless such relative has executed an affidavit of support described in § 213A with respect to such alien.

(E) Special Rule for Qualified Aliens. – Subparagraphs (A), (B), and (C) shall not apply to an alien who –

(i) is a VAWA self-petitioner;

(ii) is an applicant for, or is granted, nonimmigrant status under § 101(a)(15)(U); or

(iii) is a qualified alien described in § 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c)).

To put it simply, “an individual who is 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.” So, unless you fall under one of the exceptions noted above in subparagraph (E), you need to show that you will not become a public charge by proving the factors noted above in subparagraph (B). To date, the government has used the Affidavit of Support by a sponsor as the main proof of an individual who will not become a public charge.