[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 ([email protected]
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]
BILLING CODE 4710-06-P