Reference Citation

U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

9 FAM 40.41
PUBLIC CHARGE
(CT:VISA-1314; 09-22-2009)
(Office of Origin: CA/VO/L/R)

9 FAM 40.41 RELATED STATUTORY
PROVISIONS
(CT:VISA-1314;

09-22-2009)

See INA 212(a)(4) (8 U.S.C. 1182(a)(4)); INA 213A (8 U.S.C. 1883A); Sec.
232 of Public Law 106-113, and Public Law 107-150.
INA 212(a)(4)
(4)
(A)

Public charge.In General
Any alien who, in the opinion of the consular officer at the time
of application for a visa, or in the opinion of the Attorney General
at the time of application for admission or adjustment of status,
is likely at any time to become a public charge is inadmissible.

INA 212(a)(4)(B)
(B)

Factors to be taken into account.(i)

In determining whether an alien is inadmissible under this
paragraph, the consular officer or the Attorney General
shall at a minimum consider the alien's(I)

age;

(II)

health;

(III) family status;
(IV) assets, resources, and financial status; and
(V)
(ii)

education and skills

In addition to the factors under clause (i), the consular
officer or the Attorney General may also consider any
affidavit of support under section 213A for purposes of
exclusion under this paragraph.

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U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

INA 212(a)(4)(C)
(C)

Family-Sponsored Immigrants
Any alien who seeks admission or adjustment of status under a
visa issued under section 201(b)(2) or 203(a) is inadmissible
under this paragraph unless
(i)

the alien has obtained(I)

status as a spouse or a child of a United States
citizen pursuant to clause (ii), (iii), or (iv) or section
204(a)(1)(A) , or

(II)

classification pursuant to clause (ii) or (iii) of section
204(a)(1)(B);

(III) classification or status as a VAWA self-petitioner; or
(ii)

the person petitioning for the alien's admission 6a/ (and
any additional sponsor required under section 213A(f) or
any alternative sponsor permitted under paragraph (5)(B)
of such section) has executed an affidavit of support
described in section 213A with respect to such alien.

INA 212(a)(4)(D)
(D)

Certain Employment-Based Immigrants
Any alien who seeks admission or adjustment of status under a
visa number issued under section 203(b) by virtue of a
classification petition filed by a relative of the alien (or by an
entity in which such relative has a significant ownership interest)
is inadmissible under this paragraph unless such relative has
executed an affidavit of support described in section 213A with
respect to such alien.

INA 213
An alien inadmissible under paragraph (4) of section 212(a) may, if
otherwise admissible, be admitted in the discretion of the Attorney General
(subject to the affidavit of support requirement and attribution of sponsor's
income and resources under section 213A) upon the giving of a suitable and
proper bond or undertaking approved by the Attorney General, in such
amount and containing such conditions as he may prescribe, to the United
States, and to all States, territories, counties, towns, municipalities, and
districts thereof holding the United States and all States, territories,
counties, towns, municipalities, and districts thereof harmless against such
alien becoming a public charge. Such bond or undertaking shall terminate
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U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

upon the permanent departure from the United States, the naturalization, or
the death of such alien, and any sums or other security held to secure
performance thereof, except to the extent forfeited for violation of the terms
thereof, shall be returned to the person by whom furnished, or to his legal
representatives. Suit may be brought thereon in the name and by the proper
law officers of the United States for the use of the United States, or of any
State, territory, district, county, town, or municipality in which such alien
becomes a public charge, irrespective of whether a demand for payment of
public expenses has been made.

9 FAM 40.41 RELATED REGULATORY
PROVISIONS
(CT:VISA-967;

06-11-2008)

See 22 CFR 40.41
40.41 Public charge.
(a) Basis for Determination of Ineligibility. Any determination that an alien
is ineligible under INA 212(a)(4) must be predicated upon circumstances
indicating that, notwithstanding any affidavit of support that may have
been filed on the alien's behalf, the alien is likely to become a public
charge after admission, or, if applicable, that the alien has failed to fulfill
the affidavit of support requirement of INA 212(a)(4)(C).
(b) Affidavit of support. Any alien seeking an immigrant visa under INA
201(b)(2), 203(a), or 203(b), based upon a petition filed by a relative of
the alien (or in the case of a petition filed under INA 203(b) by an entity
in which a relative has a significant ownership interest), shall be required
to present to the consular officer an affidavit of support (AOS) on a form
that complies with terms and conditions established by the Secretary of
Homeland Security. Petitioners for applicants at a post designated by the
Deputy Assistant Secretary for Visa Services for initial review of and
assistance with such an AOS will be charged a fee for such review and
assistance pursuant to Item 61 of the Schedule of Fees for Consular
Services (22 CFR 22.1).
(c)

Joint Sponsors. Submission of one or more additional affidavits of
support by a joint sponsor/sponsors is required whenever the relative
sponsor's household income and significant assets, and the immigrant's
assets, do not meet the Federal poverty line requirements of INA 213A.

(d) Posting of Bond. A consular officer may issue a visa to an alien who is
within the purview of INA 212(a)(4) (subject to the affidavit of support
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U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

requirement and attribution of sponsor's income and resources under
section 213A), upon receipt of a notice from DHS of the giving of a bond
or undertaking in accordance with INA 213 and INA 221(g), and provided
further that the officer is satisfied that the giving of such bond or
undertaking removes the likelihood that the alien will become a public
charge within the meaning of this section of the law and that the alien is
otherwise eligible in all respects.
(e) Prearranged Employment. An immigrant visa applicant relying on an
offer of prearranged employment to establish eligibility under INA
212(a)(4), other than an offer of employment certified by the Department
of Labor pursuant to INA 212(a)(5)(A), must provide written confirmation
of the relevant information sworn and subscribed to before a notary
public by the employer or an authorized employee or agent of the
employer. The signer's printed name and position or other relationship
with the employer must accompany the signature.
(f)

Use of Federal Poverty Line Where INA 213A Not Applicable. An
immigrant visa applicant, not subject to the requirements of INA 213A,
and relying solely on personal income to establish eligibility under INA
212(a)(4), who does not demonstrate an annual income above the
Federal poverty line, as defined in INA 213A (h), and who is without other
adequate financial resources, shall be presumed ineligible under INA
212(a)(4).

[62 FR 67564, Dec. 29, 1997, as amended at 65 FR 78094, Dec. 14, 2000]

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