[Federal Register: September 20, 1999 (Volume 64, Number 181)]
[Rules and Regulations]
[Page 50751-50753]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20se99-5]
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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-
state.gov).
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]