Introduction

In scenarios in which an immigrant visa application or adjustment of status process is based on a petition filed by a family member, or family member has a significant ownership stake in the petitioning employer (for an immigrant visa or adjustment of status), the application must overcome the presumption of public charge under INA § 212(a)(4) [link]. The statute regarding the public charge states that any alien who in the determination of the consular officer handling his or her petition, or the Attorney General, will likely at any time become a public charge, is inadmissible.1

Evaluating Potential that Alien Becomes a Public Charge

In determining whether an alien is likely to at any time become a public charge, the statute instructs the consular officer assigned the case or the Attorney General to, at a minimum, consider the following factors:

1. Age;
2. Health;
3. Family status;
4. Assets, resources, and financial status; and
5. Education and skills2

The Affidavit of Support and Overcoming Presumption of Public Charge

A family member acting on behalf of an alien applying for an immigrant visa or adjustment of status is required to execute an affidavit of support in order for the application to be approvable.3 This requirement also derives from INA § 212(1)(4)(C)(ii).4 The statute that provides the basis for determining whether an alien is likely to a public charge provides that the affidavit of support may be considered in determining whether or not an alien is likely to become a public charge.5 Provided that the affidavit of support demonstrates facts that show the alien is not likely to be a public charge, the affidavit of support will generally overcome that hurdle.6

INA § 212(a)(C) requires that any alien seeking admission or adjustment of status under INA § 201(b)(2) [spouses, parents, and minor children of U.S. residents] or INA § 203(a) [preference family petitions] is excludable unless:

He or she has obtained status as a spouse or child of a U.S. citizen under INA §§ or 204(a)(1), or
He or she has obtained classification pursuant to INA §§ 204(a)(1)(B)(i)-(ii);
He or she has obtained classification or status as a Violence Against Women Act (VAWA) self-petitioner; or7
The sponsor, including any additional sponsor required by INA § 213A(f) or any alternative sponsor permitted under INA § 213A(f)(5)(B), has executed an affidavit of support.8

If where a petition for an employment-based immigrant visa or adjustment of status to an employment-based preference category is filed by a relative of an alien with a significant ownership stake in the entity that is seeking to employ the alien, the affidavit of support must be executed by the petitioning relative.9

Scenarios in Which Alien Does Not Have to Overcome Presumption of Public Charge

The requirements to overcome the presumption of public charge in this situation are only inapplicable in a few very select cases:

The alien is a VAWA self-petitioner;
The alien is an applicant for, or holder of, nonimmigrant status under INA § 101(a)(15)(U),10 or
The alien is a qualified alien described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 199611 12

  1. INA § 212(a)(4)(A)
  2. Entire list from INA §§ 212(a)(4)(B)(I)-(V)
  3. INA 213A(f)(5)(B)
  4. “In addition to
  5. INA § 212(a)(4)(B)(ii)
  6. Kurzban 75, explaining that affidavits of support in this situation will generally overcome the presumption of public charge unless it does not provide evidence that the alien would likely be a public charge under INA § 212(a)(4)(B)
  7. This and above two items on the list derive from INA §§ 212(a)(C)(i)(I)-(III)
  8. INA § 212(a)(C)(ii)
  9. INA § 212(a)(D)
  10. Describing certain victims of criminal activity and certain aliens who have been or are being helpful to certain criminal activities
  11. 8 U.S.C. 1641(c), describing certain battered spouses and children
  12. All three items on this list derive from INA §§ 212(a)(E)(i)-(iii)

Resources and materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 75, Print. Treatises & Primers.