Overcoming the "Public Charge" Ground of Inadmissibility

By: Jean S. Tinsay, Esq.

As far back as he could remember, Doogie wanted to grow up to be a doctor. Upon his graduation from college his family immigrated to the United States. However, instead of pursuing his medical studies, he immediately began working as a cashier at a restaurant and eventually was promoted to manager. As the years passed, his dream of becoming a doctor got dimmer and dimmer. In 2007, Carlos became one of the early casualties of the economic meltdown and lost his job. As they say, adversity can be turned into opportunity. Since the labor market looked bleak, Carlos decided to return to the Philippines to study medicine. While there, he met and married a fellow medical student. In a year's time, Carlos will graduate and he plans to return to the United States with his wife. He is planning to file the immigrant petition for his wife now. However, he is worried that his wife's immigrant visa application will not be approved because he has been living in the Philippines and has been unemployed for many years.

One of the immigrant visa processing requirements is the submission of a completed Affidavit of Support form. A U.S. citizen or permanent resident who files an immigrant petition on behalf of his or her alien relative is required to complete an Affidavit of Support form. A completed Affidavit of Support form is submitted to show that the sponsored immigrant will not likely become a public charge and the sponsor's income and assets will be made available for the support of the intending immigrant, if necessary. Failure to meet the Affidavit of Support requirements may render the intending immigrant inadmissible. To qualify as a sponsor, one must be:

a U.S. citizen or permanent resident;
at least 18 years old;
domiciled in the United States; and
able to demonstrate income of at least 125% of the current Federal poverty guideline for the sponsor's household size.

The country of domicile is the country where you maintain your principal residence and where you plan to reside for the foreseeable future. The fact that Carlos has been domiciled in the Philippines will not bar the approval of his wife's immigrant visa application provided he shows his intention to reestablish domicile in the United States. Carlos will have to submit proof that he has taken steps to reestablish domicile no later than the time of his wife's immigration to the United States.

As to his lack of income, this can be remedied by finding a joint sponsor to sign the Affidavit of Support for his wife. The joint sponsor need not be a family member of the petitioner or the sponsored immigrant. By signing the Affidavit of Support, the joint sponsor makes himself jointly liable with the petitioner for the support of the sponsored immigrant.

The sponsor or joint sponsor's obligation to support the sponsored immigrant will continue until any one of the following events occur:

the sponsored immigrant becomes a U.S. citizen;
the sponsored immigrant has worked, or can be credited with, 40 quarters of coverage under the Social Security Act;
the sponsored immigrant no longer has lawful permanent resident status, and has departed the United States;
the sponsored immigrant becomes subject to removal, but applies for an obtains in removal proceedings a new grant of adjustment of status based on an affidavit of support signed by a different sponsor; or
sponsor or sponsored immigrant dies.

It should be noted that divorce does not terminate the sponsor's obligations under the Affidavit of Support. If the sponsor cannot meet the income requirements and cannot find a joint sponsor, he can also use his assets to meet the income requirements. Only assets that can be converted to cash within one year and without considerable hardship or financial loss may be used.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com
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