Tightening the noose on immigrant visa applications

Tightening the noose on immigrant visa applications | Daily Tribune

Here’s a warning for intending US immigrants who are obese or otherwise dealing with chronic medical conditions, such as anxiety, high blood pressure, cardiovascular problems, or mental health issues: your American dream may be in jeopardy.

The same for elderly people and those with limited skills, a rudimentary education, money issues, or a poor grasp of the English language.

Recently, the US State Department issued a controversial directive addressed to American consular officers worldwide regarding a new visa adjudication policy impacting the public charge requirement.

Under the law, specifically Section 212(a)(4) of the Immigration and Nationality Act (INA), any US visa applicant or applicant for admission, or adjustment of status applicant in the US, is deemed inadmissible if the applicant is likely at any time to become a public charge.

While the Trump White House is no novice in implementing a strict public charge policy (a previous guidance issued during Trump’s first term was recalled by his successor), the new directive is unprecedented in scope and unconventional in depth: specific conditions previously absent from the original list of adjudicatory criteria have been added to the mix giving immigrant visa applicants very little wiggle room for error.

For example, while communicable diseases and incomplete vaccination records have historically been contributory factors in cases of immigrant visa denials on health-related grounds, this is the first time that specific medical conditions have been incorporated into the public charge inadmissibility ground under a logical but overreaching premise: a medical condition’s potential cost-heavy treatment and its impact on a person’s occupational functionality may affect a visa applicant’s financial status in the future.

In other words, being old, obese, mentally unstable, or cardiovascularly impaired, among other conditions, may affect a person’s financial standing now and in the future not only due to the prohibitive cost of medical intervention in the US but also because of the potential disability or limited employment capability attributable to the person’s age or medical condition.

Additionally, the new guidance also provides extra-wide latitude to consular officials in the determination of whether or not an immigrant visa applicant has satisfied the public charge requirement under the “totality of circumstances” test, with the burden of proof resting entirely on the applicant’s shoulders.

Among the relevant factors to be considered, in addition to age and medical condition, are the educational and occupational skills of the visa applicant, including proficiency in both written and spoken English, as well as a history of past availment of public benefits anywhere.

This means that visa applicants from countries where English is not widely spoken will face the specter of visa denial on public charge grounds despite the general absence of English proficiency requirement under the law. Thus, it is anticipated that the new policy will attract a host of legal challenges considering that the statutes only require English proficiency in certain limited instances, e.g., immigrant sponsorships of foreign healthcare workers.

As to the impact of the new policy on Form I-864 Affidavit of Support (AoS), a critical component of most family-based sponsorships, it remains to be seen whether or not the submission of an AoS, without more documentation, would suffice to overcome a public charge liability.

Given the extraordinary power accorded to consular officials with regard to the issue, it would probably not.