Visa Refusals Under INA §212(a)(4) For “Public Charge” Spiked in FY2018

In an April 24, 2019 meeting between the the Department of State and  the American Immigration Lawyers Association (AILA), the group asked the State Department/s Consular Affairs bureau about the public charge refusals for visa applicants.

AILA: Based on data provided by the Department of State, it appears that there were four times as many §212(a)(4) refusals in 2018 as compared to 2017. However, approximately the same proportion of initial refusals were overcome in both years. Thus, it appears that the total number of applicants unable to overcome the initial refusal rose significantly in 2018. Please confirm: a. Aside from guidance provided in the FAM, has State issued new or additional guidance in 2018 concerning how consular officers should evaluate eligibility under §212(a)(4)?

DOS: State hosted a series of webinars in 2018 and 2019 for consular officers reviewing the update to public charge eligibility, but other than the FAM update in 2018, there has been no additional formal guidance released on how to evaluate eligibility under §212(a)(4). b.

Visa applicants need to satisfy this provision of law by demonstrating proof of adequate financial support in the United States. A visa refusal, or ineligibility, under section 212(a)(4) of the INA means that the consular officer determined that the applicant is  likely to become a public charge in the United States. Public charge means that the consular officer determined that the applicant is  likely to become primarily dependent on the U.S. government for your existence and financial support in the United States. Most immigrant visa applicants are required to submit an Affidavit of Support (Form I-864, I-864A, I-864W, or I-864EZ, as applicable) from the U.S. sponsors who filed petitions for them. Some categories of immigrant visa applicants are not required to have Affidavits of Support. These are categories where no U.S. citizen or lawful permanent resident relative filed a petition on your behalf, including most employment-based immigrants and diversity visa (DV) applicants.

Below are the number of visa refusals under the public charge grounds for FY2017 and FY2018:

click on image to see larger view

click on image to see larger view

 

 

In January 2018, the Department released an unclassified cable 18 STATE 942 January 4, 2018 with an Update to 9 FAM 302.8 Public Charge – INA 212(A)(4): Excerpt below with the relevant section.

3. INA 212(a)(4)(B) continues to provide that officers must take into account the totality of the alien’s circumstances at the time of visa application, including, at a minimum: (a) age, (b) health, (c) family status, (d) assets, resources, financial status, and (e) education and skills. As revised, 9 FAM 302.8-2(B)(2) now includes detailed guidance to help officers assess these statutory factors when considering the totality of the applicant’s circumstances. For instance, 9 FAM 302.8-2(B)(2)(f)(1)(b)(i) provides that an officer may consider “past or current receipt of public assistance of any type” in determining whether an applicant is likely to become a public charge, although officers must make a determination based on the present circumstances. Consequently, an applicant’s current receipt of public assistance may not raise significant future concerns, based on the totality of circumstances. For example, if the applicant just completed an educational degree and received a credible job offer, the applicant’s education and skills might provide a sufficient basis to find that the applicant overcomes any public charge ineligibility concerns in spite of current lack of assets. Alternatively, an applicant’s past receipt of public assistance could be very significant: for example, if the applicant’s spouse was the family’s primary income earner, but recently died. In this case, the applicant’s recent change in family status and likely change in financial status would weigh heavily in considering the totality of the circumstances.

4. Additionally, 9 FAM 302.8-2(B)(3), paragraph b, as revised provides that a “properly filed and sufficient, non-fraudulent” Affidavit of Support by itself may not satisfy the INA 212(a)(4) public charge requirement. The Affidavit of Support requirement at INA 213A and the public charge ineligibility at INA 212(a)(4) are distinct requirements which, where both are applicable, must both be satisfied. Accordingly, a properly filed and sufficient Affidavit of Support is essential, but does not preclude denial on public charge grounds. Officers should consider such affidavits as one factor in the totality of the applicant’s circumstances, and, may find the applicant is likely to become a public charge if, for example, the applicant is in very poor health, is unable to work, and is likely to incur significant medical costs. Similarly, if an applicant does not clearly overcome public charge concerns but could with a joint sponsor, then a consular officer’s evaluation of the likelihood the joint sponsor would voluntarily meet his or her financial obligations toward the applicant becomes vital to the adjudication. See 9 FAM 302.8- 2(B)(3)(b)(1)(b). 5. The updated guidance at 9 FAM 302.8 is effective immediately.

 

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Secretary of State Pompeo: It’s “possible” Trump sent by God to save Jewish people from Iran

 

Transcript: 03/21/19 Interview With Chris Mitchell and David Brody of Christian Broadcasting Network;  Secretary of State Michael R. Pompeo; David Citadel Hotel; Jerusalem

QUESTION:  Okay.  Look where you are today.  But your faith has informed your views, clearly.  And not only that, but you’re not shy to talk about it.  And I’m wondering about how that – how that really manifests in your life.

SECRETARY POMPEO:  So of course my mission as a Secretary of State, the thing I rose my – raised my right hand to do, I swore to support and defend the Constitution of the United States.  And I’ve done that now a handful of times – first as a soldier, then as a member of Congress, then as the director of the CIA, now as Secretary of State.  But in each of those missions, the task that I have is informed by my understanding of my faith, my belief in Jesus Christ as the savior.  It doesn’t drive answers and outcomes every day; we all as Christians are searching.  But it does inform how I try to treat every human being with dignity and respect in ways that Christians ought to.  I don’t always live up to that standard, but it does inform the way I think about the world.  I think that makes a real difference, and so I want people to know.  It’s why I talk about it from to time.  I want folks to know the perspective that I am bringing to the challenges in the job that I face, and it also requires me to try to hold myself to the standards that Christians hold themselves out for.

QUESTION:  And you also mentioned a Bible story last night when you had your statements with the prime minister.  Today’s being Purim, a celebration.  Jews worldwide and here in Jerusalem are talking about the fact that Esther 2,500 years ago saved the Jewish people with God’s help from Haman.  And now 2,500 years later there’s a new Haman here in the Middle East that wants to eradicate the Jewish people like just like Haman did: the state of Iran.  Could it be that President Trump right now has been sort of raised for such a time as this, just like Queen Esther, to help save the Jewish people from the Iranian menace?

SECRETARY POMPEO:  As a Christian I certainly believe that’s possible.  It was remarkable – so we were down in the tunnels where we could see 3,000 years ago, and 2,000 years ago – if I have the history just right – to see the remarkable history of the faith in this place and the work that our administration’s done to make sure that this democracy in the Middle East, that this Jewish state remains.  I am confident that the Lord is at work here.

Pompeo Announces Departure of All Remaining U.S. Embassy Caracas Diplomats From Venezuela

 

On March 14, Secretary Pompeo announced the “temporary” departure of all remaining US Embassy Caracas diplomats from Venezuela. He also said that “We look forward to resuming our presence once the transition to democracy begins. ”

Two days ago, the State Department reissued its Level 4 Do Not Travel Advisory after the March 11, 2019 announcement of temporary suspension of operations of the U.S. Embassy in Caracas and withdrawal of diplomatic personnel in Venezuela. The advisory cautions American travelers to  “not travel to Venezuela due to crime, civil unrest, poor health infrastructure, and arbitrary arrest and detention.”

Keep the local staffers in your thoughts, personnel withdrawal does not include the local employees. See CDA James Story video here with a message to the people of Venezuela.

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Venezuela Special Envoy Elliot Abrams Gets a Protest, and a Grilling in Congress

Posted: 2:45 am EST

 

After thirty or so years, Elliot Abrams is back at the State Department. This time as the Trump Administration’s Special Envoy for Venezuela (see @SecPompeo Appoints Elliott Abrams, Iran-Contra Figure to “Help” Restore Democracy in Venezuela).

On February 13, together with Sandra Oudkirk, the Deputy Assistant Secretary for the Bureau of Energy Resources at the State Department and USAID’s Steve Olive, the Acting Assistant Administrator for the Bureau for Latin America and the Caribbean, Mr. Abrams appeared before the House Foreign Affairs Committee (HFAC) to talk about Venezuela at a Crossroads.

Note that the State Department’s WHA’s Deputy Assistant Secretary in charge of Venezuela did not testify at this hearing.

Protesters interrupted Mr. Abrams testimony, and the grilling he received from Rep. Ilhan Omar (D-Minn) received much commentary. For those too young to remember the old times, see Brown University’s Understanding the Iran-Contra Affairs,  a project developed from its applied ethics and public policy course on Good Government.

It is likely that this is not an isolated incident; that every time Mr. Abrams appear before a committee in Congress, or before the media that his past will never be too far away; he may have been pardoned but he has not been forgotten. Even when he is there to talk about Venezuela, people will ask him questions about Iran-Contra, El Salvador, Honduras, Nicaragua, human rights, El Mozoteetc. etc. etc.

Which makes one wonder why he was appointed to this job in the first place. Whatever message there is will pale in the presence of the messenger.

On February 14, Cuba accused the U.S. of moving special forces in preparation for a Venezuelan intervention under the pretext of a humanitarian crisis. Reuters reported that that Special Envoy Elliott Abrams was asked about the Cuban statement at an event in Washington, and he said “it is a new lie.”

A side note, with the Senate’s confirmation of William Barr as the next attorney general of the United States — it’s like we’re back to the 80’s.  On December 25, 1992, this was the NYT headline: Bush Pardons 6 in Iran Affair, Aborting a Weinberger Trial; Prosecutor Assails ‘Cover-Up’:

[…]

Besides Mr. Weinberger, the President pardoned Robert C. McFarlane, the former national security adviser, and Elliott Abrams, the former assistant Secretary of State for Central America. Both officials had pleaded guilty to misdemeanor charges of withholding information from Congress about support for the contras.
[…]
But not since President Gerald R. Ford granted clemency to former President Richard M. Nixon for possible crimes in Watergate has a Presidential pardon so pointedly raised the issue of whether the President was trying to shield officials for political purposes. Mr. Walsh invoked Watergate tonight in an interview on the ABC News program “Nightline,” likening today’s pardons to President Richard M. Nixon’s dismissal of the Watergate special prosecutor, Archibald Cox, in 1973. Mr. Walsh said Mr. Bush had “succeeded in a sort of Saturday Night Massacre.”

Democratic lawmakers assailed the decision. Senator George J. Mitchell of Maine, the Democratic leader, called the action a mistake. “It is not as the President stated today a matter of criminalizing policy differences,” he said. “If members of the executive branch lie to the Congress, obstruct justice and otherwise break the law, how can policy differences be fairly and legally resolved in a democracy.”

The main supporters of the pardon were Vice President Quayle, the Senate Republican leader, Bob Dole, and Mr. Gray, one senior Administration official said today. The decision, discussed in private, seemed to coalesce in the last three weeks although Mr. Bush was said to believe that Mr. Weinberger had been unfairly charged ever since the former Reagan Cabinet officer was first indicted in June.

Throughout the deliberations, Mr. Bush consulted with Attorney General William P. Barr and Brent Scowcroft, the national security adviser, who had sat on a Presidential review panel that examined the affair in early 1987.

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U.S. Sanctions Venezuela’s State-Owned Oil Company Petroleos de Venezuela, S.A.

Posted: 3:35 am EST

 

On January 28, the United States sanctioned Venezuela’s state-owned oil company Petroleos de Venezuela, S.A. (@PdVSA). During the WH briefing on Venezuela, NSA John Bolton told reporters that the US Embassy Caracas has been “drawn down significantly” when asked about personnel at post.

Tomorrow afternoon,  is reportedly scheduled to meet with the Chargé d’Affaires of , Carlos Alfredo Vecchio at the White House.

Maduro Suspends Expulsion of U.S. Diplomats, Cites Talks on Interest Sections; U.S.Accredits Guaido Envoy

Posted: 3:58 am PST

 

The U.S. diplomats in Venezuela were given  72 hours to leave the country by the Maduro Government  following President Trump’s recognition of  Juan Guaido, as the Interim President of Venezuela. The deadline would have been Saturday, January 26.

On January 24, the State Department declared an “ordered departure” status for the US Embassy in Caracas. On the same day, Maduro also extended that his deadline to Sunday, January 27.

On January 25, some members of the U.S. Embassy in Caracas were reported to be heading to the airport. AP reported that a letter by a U.S. Embassy security officer requesting a police escort for a caravan of 10 vehicles was leaked earlier in the day and published on social media by a journalist for state-owned TV network Telesur.

That RSO letter was not sent to the US-recognized Venezuelan government, the request was sent to local police, and was leaked to state-owned TV network. State-owned for now, remains the Maduro government.

On January 26, Venezuela’s Foreign Ministry issued a statement saying that Maduro’s government suspended the expulsion of U.S. diplomats and cites a 30-day window for talks to set up interest sections following the rupture of diplomatic relations.

This is similar to what happened in Cuba in January 1961 when full diplomatic relations between the U.S. and Cuba were severed. For several years, the United States was represented by Switzerland as its “protecting power” in Cuba. Much later, the U.S. Interest section opened in Havana. Below from the state.gov archives:

For the next 16 years, the U.S. was represented by the Swiss Embassy in Cuba. The U.S. Interest Section, or USINT, opened on September 1, 1977 re-occupying the seven-story former U.S. Embassy building. Officially, the Interests Section is part of and U.S. diplomats are accredited to the Swiss Embassy.

The USINT diplomatic staff provides a normal array of political and economic reporting, consular and visa services, administrative and security support and public affairs representation. Consular operations dominate USINT activities in Cuba, especially the implementation of the U.S. policy goal of promoting safe, legal, and orderly migration from Cuba to the United States. USINT has issued over 100,000 immigrant and refugee travel documents since 1994. By virtue of a reciprocal agreement, personnel ceilings are in effect limiting the number of personnel assigned to the U.S. Interests Section in Havana and the Cuban Interest Section in Washington.

But that’s supposing that the United States would consider setting up an Interest Section in Caracas.

It appears that Venezuela’s announcement maybe a one-sided plan. On January 27, Secretary Pompeo also issued a statement of its acceptance of the appointment of Carlos Alfredo Vecchio as the Chargé d’Affaires of the Government of Venezuela to the United States by interim President Juan Guaido.

The Maduro Government is moving towards an Interest Section in DC but the United States has already accepted interim President Juan Guaido’s appointment of Carlos Alfredo Vecchio as the Chargé d’Affaires in the United States as of January 25. “Mr. Vecchio will have authority over diplomatic affairs in the United States on behalf of Venezuela.

The Venezuelan Embassy in Washington, D.C. is now closed for consular services; we don’t know if it’s been vacated. How or where the recognized Venezuelan CDA conducts diplomatic affairs remain to be seen.  But it does not look like the US is looking to set up a reciprocal Interest Section.

So we’re back to what’s going to happen when the 30-day window runs out.

 

Related posts:

Meanwhile in Caracas and online, Maduro is shown dancing, going on a military march, and on patrol  in the  “coasts of Puerto Cabello in Amphibious Tanks, willing to defend our Homeland.”

Maduro showing off his dance moves.

Maduro showing off a military march in a green shirt!

Maduro showing off a ride.

@SecPompeo Appoints Elliott Abrams, Iran-Contra Figure to “Help” Restore Democracy in Venezuela

Posted: 3:35 am EST

 

On January 25, Secretary Pompeo announced that he was “incredibly excited” that Elliot Abrams “a seasoned, principled, and tough-minded foreign policy veteran is joining our State Department team.” Pompeo cited Abrams’ work during the Reagan years as  “former assistant secretary of state for human rights and humanitarian affairs and as assistant secretary for inter-American affairs.” He also cited Abrams service under President George W. Bush where the new special envoy previously “served on the National Security Council as the senior director for democracy, human rights, and international affairs; senior director for North African and Near East affairs; and deputy national security adviser for global democracy strategy.”

Pompeo told reporters that “Elliott will be a true asset to our mission to help the Venezuelan people fully restore democracy and prosperity to their country.”

Left unmentioned was Independent Counsel Lawrence Walsh’s Iran/Contra report which notes that Elliott Abrams — “Pleaded guilty October 7, 1991, to two misdemeanor charges of withholding information from Congress about secret government efforts to support the Nicaraguan contra rebels during a ban on such aid. U.S. District Chief Judge Aubrey E. Robinson, Jr., sentenced Abrams November 15, 1991, to two years probation and 100 hours community service. Abrams was pardoned December 24, 1992.” (see Summary of Prosecutions xxiii and Chapter 25 U.S. v. Elliott Abrams 375).

Meanwhile, National Security Adviser John Bolton, also could not contain his excitement, tweeting: “Pleased to hear that my good friend Elliott Abrams is rejoining State as Special Envoy for Venezuela. Welcome back to the fight.”

On January 27, Secretary Pompeo also issued the following statement on the appointment of Carlos Alfredo Vecchio as the Chargé d’Affaires of the Government of Venezuela to the United States:

The United States accepted interim President Juan Guaido’s designation of Carlos Alfredo Vecchio as the Chargé d’Affaires of the Government of Venezuela to the United States on January 25. Mr. Vecchio will have authority over diplomatic affairs in the United States on behalf of Venezuela.

After his accreditation, Mr. Vecchio met with Under Secretary of State for Political Affairs David Hale, who reaffirmed the United States’ strong support for interim President Guaido’s leadership of Venezuela. The United States looks forward to working with Mr. Vecchio and other diplomatic staff as designated by interim President Guaido.

 

And here is a blast from the past, a 1995 video from a Rose show of Friday 03/31/1995 with then Representative Robert Torricelli, former Assistant Secretary of State Elliott Abrams, and journalist Allan Nairn discuss the potentially illegal intervention in the Guatemalan military:

Pompeo on US Embassy Venezuela: US to “take all appropriate measures to ensure that they’re protected.” And if they’re not?

Posted: 4:11 pm PST

Secretary Pompeo appeared today at the State Department Press Briefing Room to announced the appointment of Elliott Abrams as the “it” guy for Venezuela. We will blog about that separately. But here is the secretary of state’s response on the concern about the U.S. diplomats left in Venezuela as Maduro’s 72-hour deadline approaches.

MR PALLADINO: Let’s go to Washington Post. Carol Morello.

QUESTION: Mr. Secretary, I think a lot of people are concerned about the diplomats who are down there. Would you tell us what you’re prepared to do if tomorrow, when the 72-hour deadline passes, they – the Venezuelans cut off electricity and water, maybe even surround the building, or even try to go in to bring out the diplomats by force? Could you be specific about what you are prepared to do in the event of any of these scenarios? And how can you assure people that they are protected?

SECRETARY POMPEO: I appreciate that question. There’s been no activity that’s taken more of our time over the past days than ensuring the protection of all those folks that are under our chief of mission authority there in Venezuela. We’re working diligently to make sure that they are protected. There’s no higher priority for the Secretary of State, and you should know no higher priority for the President of the United States. We have discussed this at some length.

With respect to the way we will deliver that, we’ve made clear to everyone that it is our expectation that the U.S. officials that are there, that have now been invited to be there by interim President Juan Guaido have a right, they have the privileges and immunities that accrue to having been invited to be there by the duly credentialed leader of Venezuela, and we have every expectation that those rights will continue to be protected.

You would have seen today that we have ordered a – have an ordered departure. We’re beginning to move some of our staff out. This is consistent with what the State Department does every day. The first briefing I get every morning is all around the world, every mission, every consulate, every facility where we have officers, I receive a briefing on risk and risk analysis. We’ll continue to do that in Venezuela. It is literally a 24/7, moment-by-moment exercise to evaluate risk to the people who work for me in the State Department, and we’ll get this right. We will make sure that we protect our folks on the ground and take all appropriate measures to ensure that they’re protected.

Thank you.

QUESTION: And if they’re not?

MR PALLADINO: Thank you guys.

SECRETARY POMPEO: Thank you all.

More about Venezuela here:

US Embassy Venezuela Now on Mandatory Evacuation For Non-Emergency Staff and Family Members

Posted: 8:37 pm PST

In the afternoon of January 24, the US Embassy in Caracas issued a Security Alert announcing the mandatory departure of non-emergency USG personnel from Venezuela:

On January 24, 2019, the State Department ordered non-emergency U.S. government employees to depart Venezuela.  The U.S. government has limited ability to provide emergency services to U.S. citizens in Venezuela.  U.S. citizens should contact U.S. Embassy Caracas for consular assistance.  U.S. citizens residing or traveling in Venezuela should strongly consider departing Venezuela.  Commercial flights remain available.

Actions to Take:

Consider departing while commercial flights are available.
If choosing to stay, ensure you have adequate supplies to shelter in place.
Monitor local media for updates
Review personal security plans
Remain aware of surroundings

Assistance:

U.S. Embassy, Venezuela
https://ve.usembassy.gov/
For all inquiries about ACS services email acsvenezuela@state.gov or call +58 (212) 975-6411 between the hours of 3:00 to 5:00 p.m., Monday through Friday, except U.S. and Venezuelan holidays.
For emergency assistance after hours call +58 (212) 907-8400

State Department – Consular Affairs
888-407-4747 or 202-501-4444

While the Security Alert does not specifically addressed USG family members at the US Embassy in Caracas, a State Department spokesperson confirmed to us that the ordered departure includes not just non-emergency direct-hire U.S. government personnel but also eligible family members of U.S. government personnel posted at the U.S. Embassy in Caracas. 

We were informed that the State Department is taking this action based on its current assessment of the security situation in Venezuela and that it has “no plans to close the Embassy.”

Also that “The United States will maintain diplomatic relations with Venezuela through the government of interim President Guaido, who has invited our mission to remain in Venezuela.”

We asked if there is a plan for USG-sponsored flights out of Venezuela and we were told that commercial flights remain available and that U.S. citizens residing or traveling in Venezuela should strongly consider departing the country.      

We should note that the host country government, in this case Venezuela’s is responsible for the safety of diplomatic personnel in country.  The State Department did not explain how Venezuela Interim President Guaido plans to protect the US Mission and personnel in Caracas given that he has no control over the military and security forces. 

The United States no longer recognizes the Maduro Government as the country’s legitimate government nor does it recognize its authority. So, whatever skeletal crew the US Embassy Caracas will keep, it will be in  country that has also declared our diplomats unwelcomed.  The United States has threatened appropriate action if the mission or US diplomats are harmed there, but that’s small comfort to the people in the crosshairs or loved ones watching this from afar.  

In the last 24 hours we have heard from folks using the words “bait” and “poker chips” to describe our people in Venezuela. Under the Trump Administration, Secretary Pompeo has declared the United States continuing diplomatic presence in Venezuela. Our diplomats will stay because they’re ordered to stay and they have a job to do. But what job is that exactly? Is there anyone in the 7th Floor who actually thinks Maduro will just sit back and watch when U.S. diplomats go about their business working with Interim President Guaido in Caracas? Really? 

On January 24,  also announced that the United States is ready to provide “more than $20 million in humanitarian aid to the people of Venezuela …to cope with food and medicine shortages and the other dire impacts of their country’s political & economic crisis.”

The State Department has yet to elaborate the logistics of sending humanitarian aid to a country with two presidents, one who actually still runs the country but the United States does not recognize, and the other who does not run the country but the United States do recognize.

And then this via the Caracas Chronicles:

If Maduro manages to hang on through the coming few weeks, the hemisphere will find itself in the very uncomfortable situation of having no interlocutor in Caracas. If Nicolás Maduro grabs Peruvian diplomatic facilities, who is the Peruvian Foreign minister going to call to protest, Guaidó? If the government expropriates Colombian company assets, what good does it do Duque to call Guaidó to protest? If an American Airlines jet gets impounded in Maiquetía, who does Pompeo bawl out? If Canadian citizens get thrown in jail on plainly made up spying charges, who is Chrystia Freeland supposed to complain about consular access to? Gustavo Tarre?

When this happens, what are you gonna do, Mike? Read more: Guaidó’s Diplomatic Rulebook Problem.