Questions related to the FAM and Final Public Charge Rules

[Paduppa 0]

My partner and I (not married yet) are considering to file for CR-1 visa.

 

We have questions about our conditions related to our concern about the revised FAM instruction in Jan 2018 and upcoming new Public Charge rules effects on Oct 15, 2019.

 

The prospect main sponsor has no income since 2017 and he didn't file tax for last year.

 

The prospect co/joint sponsor (mother) has retired since January this year. She is in a transitional with no income stream as she hasn't started taking social security benefits yet but she has a retirement portfolio value over 5 times the annual income requirement as well as her house equity.

 

The sponsor and co-sponsor are currently on Medicaid.

 

Questions:

1. Could Medicaid cause issues according to the revised FAM instruction in Jan 2018? https://www.nilc.org/issues/economic-support/public-charge-changes-to-fam/

2. Does it seem likely to be advantageous to file our case before Oct 15?

3. If the case is filed while the sponsor is unemployed, if the sponsor obtains employment in the interim, will that income be acceptable for use in the i864 form?

4. We're concerned about being denied (under grounds of public charge) and are considering waiting until the sponsor obtains employment. We're unsure if our case is especially likely to be denied - we're treating the base rate of denial as 8% per https://www.cato.org/blog/immigration-application-denials-jump-37-percent-under-trump . Does anyone have any insight here?

 

[designguy 1,179]

1) The public charge policy changes have to do with whether or not the beneficiary is likely to rely on government assistance. The fact that the sponsor is on medicaid will not be a factor in this case (as far as I know).

2) The public charge rule change going into effect Oct 15(proposed) is a USCIS policy and does not directly apply to applicants who are applying at US consulates abroad as those applications are handled by the DOS, however COs still have the authority to make a determination if they believe an applicant may become a public charge. 

3) The point of using a sponsor is to have the backing of a financially stable person. If the person providing sponsorship can not provide this then they will likely not be accepted by the CO. However the sponsorship information is not required when you initially file I-130. If you file today you'd need to have all of the AOS documentation ready in about a year. You mentioned using the sponsor's home as an asset. Keep in mind that the CO may not accept this as a primary home is not considered to be easily liquified.

4) If you aren't confident then it's likely the CO who will adjudicate your case won't be either.

 

When you say "main" sponsor do you mean the USC future spouse? You will need to provide the household size of the sponsor and co sponsor to get a better estimate on the 

[milimelo 4,236]

File now as it’s going to take a year. In the meantime, the sponsor gets a job and come NVC time will have proof of being able to sponsor you. 

[Paduppa 0]

14 minutes ago, designguy said:

1) The public charge policy changes have to do with whether or not the beneficiary is likely to rely on government assistance. The fact that the sponsor is on medicaid will not be a factor in this case (as far as I know).

2) The public charge rule change going into effect Oct 15(proposed) is a USCIS policy and does not directly apply to applicants who are applying at US consulates abroad as those applications are handled by the DOS, however COs still have the authority to make a determination if they believe an applicant may become a public charge. 

3) The point of using a sponsor is to have the backing of a financially stable person. If the person providing sponsorship can not provide this then they will likely not be accepted by the CO. However the sponsorship information is not required when you initially file I-130. If you file today you'd need to have all of the AOS documentation ready in about a year. You mentioned using the sponsor's home as an asset. Keep in mind that the CO may not accept this as a primary home is not considered to be easily liquified.

4) If you aren't confident then it's likely the CO who will adjudicate your case won't be either.

 

When you say "main" sponsor do you mean the USC future spouse? You will need to provide the household size of the sponsor and co sponsor to get a better estimate on the 

• Main sponsor = USC future sponsor

• Main sponsor’s household size = 2 (beneficiary included)

• Co sponser’s household size = 3 (Herself, Main sponser, and beneficiary)

[Crazy Cat 39,425]

16 minutes ago, designguy said:

The public charge rule change going into effect Oct 15(proposed) is a USCIS policy and does not directly apply to applicants who are applying at US consulates abroad as those applications are handled by the DOS, however COs still have the authority to make a determination if they believe an applicant may become a public charge. 

I'm glad you mentioned this.  I think a lot of people don't realize that the new USCIS rule only applies to spouses of US citizens who apply for adjustment of status (K-1 entrants).......I read through the document several times searching for a reference to spouses who enter on a CR-1/IR-1 visa.  Of course, there is no reference, although US consulates are probably using similar criteria in determining public charge issues.

Thanks for posting....

[JeanneAdil 6,228]

Retirement portfolio of over $100,000 and she would agree to the following to liquidate her retirement income if she needed to according to I 864 instructions:

 

Only assets that can be converted into cash within one year and without considerable hardship or financial loss to the owner may be included. The owner of the asset must include a description of the asset, proof of ownership, and the basis for the owner’s claim of its net cash value. 

 

and your main sponsor has no income at all?   He is the main sponsor and yes,  the embassy can judge you will become a public charge/  they have done it many times as noted in past posts/ they will not see he is on medicaid or any other assistance but they will see he doesn't file taxes 

 

[Paduppa 0]

43 minutes ago, missileman said:

I'm glad you mentioned this.  I think a lot of people don't realize that the new USCIS rule only applies to spouses of US citizens who apply for adjustment of status (K-1 entrants).......I read through the document several times searching for a reference to spouses who enter on a CR-1/IR-1 visa.  Of course, there is no reference, although US consulates are probably using similar criteria in determining public charge issues.

Thanks for posting....

From my opinion, it’s very likely that once the Final Rules take place, DOS will adjust their determination accordingly.

 

I’ve noticed from USCIS website that there will be an updated i864 form publishing on Oct 15. 

[geowrian 22,336]

12 hours ago, designguy said:

1) The public charge policy changes have to do with whether or not the beneficiary is likely to rely on government assistance. The fact that the sponsor is on medicaid will not be a factor in this case (as far as I know).

2) The public charge rule change going into effect Oct 15(proposed) is a USCIS policy and does not directly apply to applicants who are applying at US consulates abroad as those applications are handled by the DOS, however COs still have the authority to make a determination if they believe an applicant may become a public charge.

1) It is a factor (not reason for refusal alone), actually. See current FAM: https://fam.state.gov/FAM/09FAM/09FAM030208.html#M302_8_2_B_2

Quote

(c)  (U) Receipt of Means-Tested Benefits by the Sponsor:

(i)     (U) The sponsor's past or current receipt of means-tested benefits is a factor in support of a finding of inadmissibility for the applicant under INA 212(a)(4), insofar as it affects the applicant’s resources and financial status, including  the sponsor’s ability to support the applicant.   

(ii)    (U) If the sponsor or any member of his or her household has received public means-tested benefits within the past three years, you must review fully the sponsor's current ability to provide the requisite level of support, taking into consideration the kind of assistance provided and the dates received.

 

2) It's no longer proposed...it is a final rule now set to go into effect on a given date. But yes, important point that it does not impact DOS decisions at this time.

 

11 hours ago, missileman said:

I'm glad you mentioned this.  I think a lot of people don't realize that the new USCIS rule only applies to spouses of US citizens who apply for adjustment of status (K-1 entrants).......I read through the document several times searching for a reference to spouses who enter on a CR-1/IR-1 visa.  Of course, there is no reference, although US consulates are probably using similar criteria in determining public charge issues.

Thanks for posting....

More specifically, it impacts DHS decisions, not DOS decisions.

 

11 hours ago, Paduppa said:

From my opinion, it’s very likely that once the Final Rules take place, DOS will adjust their determination accordingly.

 

I’ve noticed from USCIS website that there will be an updated i864 form publishing on Oct 15. 

Who knows what will actually happen, but that's my prediction as well.

 

As for the new form, I'm assuming that's to correspond with the (new form) I-944 as well.

[Ryan H 3,795]

Moved from Progress Reports to Process & Procedures.

[Paduppa 0]

5 hours ago, geowrian said:

 

2) It's no longer proposed...it is a final rule now set to go into effect on a given date. But yes, important point that it does not impact DOS decisions at this time.

 

5 hours ago, geowrian said:

 

16 hours ago, Paduppa said:

From my opinion, it’s very likely that once the Final Rules take place, DOS will adjust their determination accordingly.

 

I’ve noticed from USCIS website that there will be an updated i864 form publishing on Oct 15. 

Who knows what will actually happen, but that's my prediction as well.

 

As for the new form, I'm assuming that's to correspond with the (new form) I-944 as well.

I wonder for my case, filling application outside US, is there still any advantages of doing it before Oct 15? 

 

Imagine even I apply before that date, but when the time for submitting i864 comes (let’s say within a year after the application date), I will have to use the revised version of i864 which is likely to be adjusted accordingly to the Final rules anyway? 

 

 

 

[geowrian 22,336]

6 hours ago, Paduppa said:

I wonder for my case, filling application outside US, is there still any advantages of doing it before Oct 15? 

 

Imagine even I apply before that date, but when the time for submitting i864 comes (let’s say within a year after the application date), I will have to use the revised version of i864 which is likely to be adjusted accordingly to the Final rules anyway?

The sooner you file, the sooner you can proceed with the process. You can always delay the process, but speeding it up is much harder.

[Paduppa 0]

On 9/9/2019 at 8:35 PM, geowrian said:

On 9/9/2019 at 2:11 PM, Paduppa said:

 

The sooner you file, the sooner you can proceed with the process. You can always delay the process, but speeding it up is much harder.

May I ask for your prediction that if we file it before Oct15, are we likely to use the revised i864 form but no I-944 form needed for our case tho? 

 

I’m still trying to see if it’s really worth rushing file in order to avoid upcoming challenges. 

[geowrian 22,336]

12 minutes ago, Paduppa said:

May I ask for your prediction that if we file it before Oct15, are we likely to use the revised i864 form but no I-944 form needed for our case tho? 

 

I’m still trying to see if it’s really worth rushing file in order to avoid upcoming challenges. 

It's impossible to say what DOS (who are responsible for the consulates) will do when the new DHS rule goes into effect. My personal prediction is they will implement a similar type of policy change, although maybe not immediately.

Or maybe not at all.