99-24184. VISAS: Regulations Regarding Public Charge Requirements Under the Immigration and Nationality Act, as Amended  

  • [Federal Register Volume 64, Number 181 (Monday, September 20, 1999)]
    [Rules and Regulations]
    [Pages 50751-50753]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-24184]
    
    
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    DEPARTMENT OF STATE
    
    22 CFR Part 40
    
    [Public Notice 3105]
    RIN 1400-AA79
    
    
    VISAS: Regulations Regarding Public Charge Requirements Under the 
    Immigration and Nationality Act, as Amended
    
    AGENCY: Bureau of Consular Affairs, State.
    ACTION: Final rule.
    
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    SUMMARY: This final rule amends Department of State regulations 
    pertaining to the issuance of visas by establishing uniform procedures 
    for the acceptance of affidavits of support by consular posts abroad as 
    required by the Immigration and Nationality Act (INA). Publication of 
    this rule is necessary to ensure proper adjudication of immigrant
    
    [[Page 50752]]
    
    visas pursuant to changes made to the INA by the Illegal Immigration 
    Reform and Immigration Responsibility Act of 1996 (IIRIRA). The rule 
    imposes new requirements on immigrant visa applicants.
    
    EFFECTIVE DATES: This final rule is effective as of December 17, 1997.
    
    FOR FURTHER INFORMATION CONTACT: Ron Acker, Visa Regulations 
    Coordinator, Legislation and Regulations Division, Visa Office, Room 
    L603-C, SA-1, Washington, DC, 20520-0106 (ackerrl@sa1wpoa.us-).
    
    SUPPLEMENTARY INFORMATION: The Department published an interim rule, 
    Public notice 2674 at 62 FR 67563, December 29, 1997, with a request 
    for comments, for title 22, Sec. 40.41, Code of the Federal 
    Regulations. The rule was proposed to fully implement the provisions of 
    section 343 of the Illegal Immigration Reform and Immigration 
    Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208. That section 
    requires changing the previous subparagraph (C) of INA 212(a)(4) to 
    subparagraph (D) and adding a new subparagraph (C). The new 
    subparagraph (C) provided that aliens applying in the immediate-
    relative, family-based and certain employment visa categories must be 
    found ineligible unless the applicant is the beneficiary of an 
    affidavit of support filed under INA 213A which is sufficient (meaning 
    one that demonstrates the sponsor has income and assets equaling at 
    least 125% of the current minimum Federal Poverty Guidelines to meet 
    the requirements of that section). The employment based petitions are 
    limited to those instances where a sponsoring relative is the 
    petitioning employer or owns a 5% or more interest in the entity that 
    is the petitioning employer.
        The Immigration and Naturalization Service has promulgated rules 
    and forms for the implementation of this procedure. Accordingly, the 
    Department is adding to and/or changing its regulations at 22 CFR 40.41 
    to reflect the new affidavit of support requirements.
    
    Comments
    
        The interim rule for comment was published at 62 FR 67563. The 
    comment period was closed on February 27, 1998 and the Department 
    received 3 timely comments in response to the interim rule. After 
    considering the comments received, the Department has adopted the 
    interim rule in its entirety.
    
    Analysis of Comments
    
        The commentators' primary focus regarded the ability of a Consular 
    Officer to find a visa applicant inadmissible, based on a likelihood of 
    becoming a public charge, even if a qualifying Form I-864, Affidavit of 
    Support, had been submitted. Since the affidavit of support 
    requirements had been met, the commentators argued, Consular Officers 
    should be limited in their discretion to find an applicant 
    inadmissible.
        While the Department appreciates the commentators' concern, the 
    language of INA 212 (a)(4) supports consular discretion and the 
    examination of multiple factors in determining the likelihood of an 
    individual becoming a public charge, as opposed to the mere acceptance 
    of a facially sufficient affidavit of support. According to the 
    language of INA 212 (a)(4)(A), if it is the Consular Officer's opinion 
    the applicant is likely to become a public charge, then such applicant 
    is inadmissible and, therefore, unqualified for visa issuance. INA 212 
    (a)(4)(B) states that the Consular Officer shall consider, ``at a 
    minimum,'' factors including the applicant's age, health, family 
    status, assets, resources, financial status, and education and skills. 
    In addition to those requirements, the affidavit of support may be 
    considered.
        Any regulations promulgated pursuant to this statute should reflect 
    the language of the INA. Such is the case with the interim rule as 
    proposed. It incorporates the requirements of new INA 212 (A)(4)(C) by 
    requiring the completion of an affidavit of support, but permits the 
    Consular Officer to base his adjudication of the case on the totality 
    of the circumstances surrounding the applicant. The rule makes clear 
    that although Form I-864 is a necessary part of certain immigrant visa 
    applications, it is not, in and of itself, wholly adequate to find that 
    an applicant satisfies the public charge requirements. It is a 
    threshold requirement necessary to begin public charge considerations, 
    but it is not an end.
        This is not to say, however, that a sufficient affidavit of support 
    is not given great weight in the Consular Officer's determination. In 
    many cases, the affidavit will be enough to issue a visa. And, in the 
    event the Consular Officer finds the affidavit of support inadequate, a 
    Consular Officer is instructed to be sure that there is a clear, well-
    documented basis for the determination that the applicant is likely to 
    become a public charge. The Department has issued guidance to Consular 
    Officers to this effect.
        One commentator expressed a concern that the myriad factors that 
    are within a Consular Officer's discretion to consider, in addition to 
    a sufficient affidavit of support, would harm an applicant's chances of 
    obtaining a visa since these other factors would add prejudicial 
    uncertainty to the process. Although the commentator is correct that 
    the additional factors can be complicated, there is no change in this 
    respect as a result of the regulation since public charge 
    determinations historically have contemplated numerous factors. In any 
    event, under the statute a consular officer must consider such 
    additional factors.
        Another commentator maintained that an applicant who had met the 
    minimum income requirement, but was otherwise unemployable, should be 
    allowed to submit a non-legally-binding affidavit of support 
    (presumably from another individual) if the Consular Officer, in his 
    discretion, determines that a Joint Sponsor is not warranted. INA 
    213A(a)(1)(B) states that an affidavit is not acceptable by a consular 
    officer to establish non-excludibility as a public charge unless it is 
    legally enforceable. Therefore, the submission of a non-legally-binding 
    affidavit of support by an alien in any of those categories for which 
    Form I-864, is required while not precluded, will not establish that an 
    applicant is not excludable as a public charge.
        Finally, one commentator was concerned that Consular Officers would 
    be influenced by what was perceived as a more stringent interpretation 
    of the statute as stated by INS in its interim regulation at 8 CFR 
    213a.2(c)(2)(v), published at 62 FR 54346, October 10, 1997. This 
    concern, however, is based upon an inaccurate interpretation of the 
    regulation. It does not burden an applicant with any greater 
    requirements. The regulation merely restates, albeit in different 
    language than the Department's regulation, that a Consular Officer is 
    to use his or her statutorily authorized discretion in determining 
    public charge issues. This construction is supported by the Department.
    
    Final Rule
    
        The interim rule amended the Department's regulations at 22 CFR 
    40.41 to establish uniform procedures for using the affidavit of 
    support in adjudicating immigrant visas. Since the Department does not 
    feel it necessary to further amend the regulations as published in the 
    interim rule, the interim rule is being incorporated herein as a final 
    rule.
    
    List of Subjects in 22 CFR Part 40
    
        Aliens, Immigrants, Nonimmigration, Passports and visas.
    
        Accordingly, the interim rule amending 22 CFR part 40 which was
    
    [[Page 50753]]
    
    published on December 29, 1997 is adopted as a final rule without 
    change.
    
        Dated: August 27, 1999.
    Mary A. Ryan,
    Assistant Secretary for Consular Affairs.
    [FR Doc. 99-24184 Filed 9-17-99; 8:45 am]
    BILLING CODE 4710-06-P
    
    
    

Document Information

Effective Date:
12/17/1997
Published:
09/20/1999
Department:
State Department
Entry Type:
Rule
Action:
Final rule.
Document Number:
99-24184
Dates:
This final rule is effective as of December 17, 1997.
Pages:
50751-50753 (3 pages)
Docket Numbers:
Public Notice 3105
RINs:
1400-AA79: Inadmissible Grounds: Public Charge
RIN Links:
https://www.federalregister.gov/regulations/1400-AA79/inadmissible-grounds-public-charge
PDF File:
99-24184.pdf
CFR: (1)
22 CFR 40