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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:
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.
Posted: 12:17 am ET
President Trump issued E.O. 13780 on March 6 (Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States). It revoked the January 27 order, and reissued the ban for the same six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen, with Iraq excepted (see Trump Revokes Travel Ban EO, Reissues New Executive Order For Six Muslim Countries Minus Iraq).
As we’ve pointed out previously here, there’s something in EO 13780 that did not get as much attention as the travel ban. Section 2 (a) and (b) of the E.O. requires the review of immigration-related information sharing by foreign governments.
Sec. 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.
The report required under Section 2(b) was reportedly submitted in mid-July to the President. The State Department subsequently sent a guidance cable to all posts worldwide to help foreign governments understand the requirements and how they can start meeting them. We understand that posts were told to request a response from their host government counterparts to enable them to respond to the State Department by July 21.
On September 24, President Trump announced new security measures that establish minimum requirements for international cooperation to support U.S. visa and immigration vetting and new visa restrictions for eight countries. The announcement cites Section 2 of Executive Order 13780 — “if foreign countries do not meet the United States Government’s traveler vetting and information sharing requirements, their nationals may not be allowed to enter the United States or may face other travel restrictions, with certain exceptions.” Below are the country-specific restrictions per Fact Sheet: Proclamation on Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats:
Country-Specific Travel Restrictions:
Chad – Although it is an important partner, especially in the fight against terrorists, the government in Chad does not adequately share public-safety and terrorism-related information, and several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb. Accordingly, the entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.
Iran – The government in Iran regularly fails to cooperate with the United States Government in identifying security risks; is the source of significant terrorist threats; is state sponsor of terrorism; and fails to receive its nationals subject to final orders of removal from the United States. Accordingly, the entry into the United States of nationals of Iran as immigrants and as nonimmigrants is suspended, except that entry by nationals of Iran under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals will be subject to enhanced screening and vetting requirements.
Libya – Although it is an important partner, especially in the area of counterterrorism, the government in Libya faces significant challenges in sharing several types of information, including public-safety and terrorism-related information; has significant inadequacies in its identity-management protocols; has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States; and has a substantial terrorist presence within its territory. Accordingly, the entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.
North Korea – The government in North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements. Accordingly, the entry into the United States of nationals of North Korea as immigrants and nonimmigrants is suspended.
Somalia – Although it satisfies minimum U.S. information-sharing requirements, the government in Somalia still has significant identity-management deficiencies; is recognized as a terrorist safe haven; remains a destination for individuals attempting to join terrorist groups that threaten the national security of the United States; and struggles to govern its territory and to limit terrorists’ freedom of movement, access to resources, and capacity to operate. Accordingly, the entry into the United States of nationals of Somalia as immigrants is suspended, and nonimmigrants traveling to the United States will be subject to enhanced screening and vetting requirements.
Syria – The government in Syria regularly fails to cooperate with the U.S. Government in identifying security risks; is the source of significant terrorist threats; has been designated as a state sponsor of terrorism; has significant inadequacies in identity-management protocols; and fails to share public-safety and terrorism information. Accordingly, the entry into the United States of nationals of Syria as immigrants and nonimmigrants is suspended.
Venezuela – The government in Venezuela is uncooperative in verifying whether its citizens pose national security or public-safety threats; fails to share public-safety and terrorism-related information adequately; and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. Accordingly, the entry into the United States of certain Venezuelan government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.
Yemen – Although it is an important partner, especially in the fight against terrorism, the government in Yemen faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory; fails to satisfy critical identity-management requirements; and does not share public-safety and terrorism-related information adequately. Accordingly, the entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.
IRAQ: The Secretary of Homeland Security also assesses Iraq as inadequate according to the baseline criteria, but has determined that entry restrictions and limitations under a Presidential proclamation are not warranted because of the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).
The Secretary recommends, however, that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States.
The FAQ notes that these restrictions and limitations took effect at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals “who were subject to the suspension of entry under section 2 of E.O. 13780, and who lack a credible claim of a bonda fide relationship with a person or entity of the United States.” The restrictions and limitations take effect at 12:01 a.m. eastern daylight time on October 18, 2017, for all other foreign nationals subject to the suspension of entry under section 2 of E.O. 13780, and for nationals of Chad, North Korea, and Venezuela.
Posted: 2:51 am EDT
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This past October, we blogged that the U.S. District Court of the Northern District of California ordered the State Department to return the U.S. passport of Yemeni-American Mosed Shaye Omar which was revoked “based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013” (see Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport).
While researching another court case, we discovered the Hasan v. State Department case. This is a case where the petitioner asked for judicial review of a US Embassy Yemen consular official’s decision of ineligibility for an immigrant visa on behalf of a minor child. Following the filing of this case and the closure of the US Embassy in Sanaa, the US Embassy in Cairo apparently became the post designated to handle visa applications from Yemen. US Embassy Cairo reviewed the prior ineligibility, reversed US Embassy Sana’a’s decision and issued the immigrant visa. The parties subsequently agreed to dismissed this case with prejudice at no cost to Mr. Hasan or the State Department. Except for the court ruling stipulating the dismissal of the case, all other files related to this case are sealed in court.
A closer look at other cases filed in the New York District Court indicates several other court cases against the State Department, US Embassy Yemen, US Embassy Pakistan, Ambassador Matthew Tueller, Ambassador Richard Olson and related federal agencies have also been sealed.
We suspect that these are cases related either to U.S. passport revocations, non-issuance of U.S. passports or immigrant visas in Yemen and Pakistan.
Following the federal court decision ordering the State Department to return the passport improperly revoked by the State Department, we asked State/OIG about this trend and we’re told that the OIG does not have “anything on this issue on which it can comment.” It was suggested that we check with Consular Affairs. And of course, we have previously asked CA about this, but we do not really expect them to address this in terms of oversight.
The court documents in the Omar case suggest that Consular Affairs is revoking U.S. passports contrary to the rules in the Foreign Affairs Manual. But this is not the only case. If all similar cases have the same threshold as the Omar case, it is deeply troubling not only because the revocation appears not to follow State Department’s written guidance, State also never seek to denaturalized the plaintiff. Which basically leaves the plaintiff still a citizen of this country but unable to travel anywhere.
Which brings us to the question as to why these court files are sealed in court. It is possible that these cases all relate to minor children, could that be the reason for sealing the court records? Or is it something else?
Below are some of the cases we’ve located; all sealed unless noted otherwise:
1:15-cv-06425-NGG | Abdu v. U.S. Department of State et al — filed on 11/10/2015. Defendants include Secretary Kerry and US Ambassador to Yemen Matthew Tueller.
1:15-cv-05684-FB | Alzonkary et al v. Holder et al — filed on 10/02/2015. Defendants include Secretary Kerry, US Embassy Yemen’s Ambassador Tueller and CA’s Michelle Bond.
1:15-cv-05587-JG | Mansour Fadhil et al (on behalf of minor children). Defendants include Secretary Kerry.
1:15-cv-06436-FM | Al Zokary v. United States Department of State et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller
1:15-cv-04312-GHW | Hasan v. U.S. Department of State et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller. The case was dismissed in August 2015 with a stipulation that it be dismissed with prejudice and without costs or attorney’s fees to either party. All files except the Stipulation are sealed.
1:15-cv-01767-ILG | Hasan et al v. U.S. Department of State et al. Defendants include Secretary Kerry and US Ambassador to Pakistan Richard Olson.
1:14-cv-07093-PAC | Issa et al v. Holder et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller.
1:14-cv-02584-ER | Alsaidi v. U.S. Department of State et al. Defendants include Secretary Kerry and Karen H. Sasahara in her official capacity as charge d’affaires ad interime of the U.S. embassy in Sana’a, Yemen. The case was dismissed in 2014 with a stipulation that it be dismissed with prejudice and without costs or attorney’s fees to either party. All files remained sealed.
1:13-cv-06872-PKC | Mohammad et al v. Beers et al. Defendants include Secretary Kerry. The case was voluntarily dismissed in July 2014, all files remained sealed.
2:13-cv-04178-ADS | Arif et al v. Kerry et al. Defendants include Secretary Kerry and Embassy Islamabad’s Ambassador Olson. The case was dismissed with prejudice in September 2013, with each party bearing its own costs, fees, including attorney’s fees, and disbursements. The files remained sealed.
One passport case from November 2013, 1:13-cv-08299-AJP Kassim v. Kerry is not sealed. The case was dismissed in March 2014 with a court order for issuance of U.S. passport to plaintiff. “Within 30 days of the entry of this order, Plaintiff will submit to the Department of State a new un-executed but signed passport application (Form DS-11) with passport photos and a copy of the front and back of a valid government identification card. The Department of State will issue Plaintiff a U.S. passport book and a U.S. passport card within 30 days of receipt of Plaintiffs passport application and supporting documentation (described above in subsection 2(a)). This action is hereby withdrawn and dismissed with prejudice and without costs or attorney’s fees.”
One immigrant visa case from 2014, 1:14-cv-03748-KAM | Chaudhry et al v. Holder et al. is also not sealed. The defendants include Secretary Kerry and Embassy Islamabad’s Ambassador Olson. The case was voluntarily dismissed with prejudice in light of the State Department granting of an immigrant visa to Plaintiff.
Posted: 1:02 am EDT
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