K1 Beneficiary and New Public Charge Rule

[SmallTownPA 72]

8 hours ago, geowrian said:

No legislative changes have been made to the public charge rule to read. The law says nothing about any timeline for usage, or really anything other than very basic constraints that the CO or IO must believe the applicant will not become a public charge.

The rules around public charge have changed recently, and do set more of a framework for making that determination.

 

I don't get the reference to the 12 out of 36 month usage criteria. True, that (generally) won't apply to a new K-1 holder, but all the other public charge totality of circumstances factors apply (FAM: https://fam.state.gov/FAM/09FAM/09FAM030208.html#M302_8_2_B_2, USCIS: https://www.uscis.gov/sites/default/files/policymanual/resources/Appendix-TotalityoftheCircumstancesFramework.pdf).

I don't think anybody mentioned an issue with prior or current usage in the OP's case.

You must have missed the entire part where they clarify everything.

 

https://www.federalregister.gov/documents/2019/08/14/2019-17142/inadmissibility-on-public-charge-grounds

 

DHS is revising its interpretation of “public charge” to incorporate consideration of such benefits, and to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.[10] This rule redefines the term “public charge” to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). This rule defines the term “public benefit” to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing. DHS has tailored the rule to limit its effects in certain ways, such as for active duty military members and their families, and children in certain contexts.

 

FAM is not law.  Actually there is a very weak test for public charge via the I-134.  The I-134 is not legally binding.  Its an 'info sheet'.  Its not until you hit AOS and the I-864 that things get real.

 

 

Edited April 22, 2020 by SmallTownPA

[geowrian 22,337]

28 minutes ago, SmallTownPA said:

You must have missed the entire part where they clarify everything.

 

https://www.federalregister.gov/documents/2019/08/14/2019-17142/inadmissibility-on-public-charge-grounds

 

DHS is revising its interpretation of “public charge” to incorporate consideration of such benefits, and to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.[10] This rule redefines the term “public charge” to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). This rule defines the term “public benefit” to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing. DHS has tailored the rule to limit its effects in certain ways, such as for active duty military members and their families, and children in certain contexts.

That refers to what is considered to be a public charge. That does not mean one has to actually have used public benefits for 12+ months over a 36 month period to be considered likely to become a public charge. It means that if an IO or CO believes you are likely to ever meet that criteria, then they are to consider you likely to become a public charge and are therefore inadmissible under INA 212(a)(4)(A).

Having actually done so in the past is a factor in making that decision, per the guidelines.

It is reckless to suggest that just because somebody has not actually been a public charge in the past (using that criteria) means they cannot be considered one in the future. That's simply not how it works.

 

28 minutes ago, SmallTownPA said:

FAM is not law.  Actually there is a very weak test for public charge via the I-134.  The I-134 is not legally binding.  Its an 'info sheet'.  Its not until you hit AOS and the I-864 that things get real.

The FAM is what they actually use as policies to make visa eligibility decisions. Even if it didn't match law (it does, at least unless somebody is able to get a judge to determine otherwise), it is what they will actually use to make visa decisions.

The I-134 is not legally binding. Nothing to the contrary was stated or implied. It is a tool for the CO to make a public charge assessment. So is the new DS-5540.

 

The public charge assessment is - in theory - identical whether it's for a K-1 visa or AOS.

In practice, how much easier or harder it is depends on the consulate and specific CO. For instance, India tends to be very strict. Philippines rarely even asks for the I-134 or any evidence. UK lets you self-sponsor (no I-134 or anything from the petitioner required) via assets sufficient for at least 90 days.

 

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@OP

Please refer to the previously posted FAM page for the K-1 visa for the factors they will consider. From that, you can get an idea of how the case will be viewed. A satisfactory sponsor is sufficient even if there are negative factors there. The fewer negative factors, and the more positive factors, the less of a reliance on the sponsor is necessary.

For AOS later, follow the previously posted worksheet for a similar idea of how it will be viewed. They should be pretty close in most cases. IMO, the USCIS worksheet is easier to read and lay out what is positive and negative.

Good luck.