Sunday, July 28, 2019

Prepping for the Visa Interview

If you have gone through the entire immigration process, you would know that getting the petition approved is actually the easy part; all you have to prove is 1) the relationship between the petitioner and beneficiary; and 2) the right to petition of the petitioner (U.S. Citizen or Lawful Permanent Resident).  But once your petition is approved, the next step is the bigger hurdle. You and the beneficiary/applicant has to overcome the disputable presumption that the beneficiary/applicant may become a public charge.

Under the Old Rules

My husband and I went through the immigration process in 2017.  Trump had just been newly elected and he did not then yet make any sweeping changes to the immigration process. Consequently, we migrated under the old rules where the burden of proving that the immigrant would not become a public charge rested heavily on the sponsor/petitioner.

Under the old rules, the Affidavit of Support (AOS) played a heavy part on the approval of the visa.  For as long as the sponsor's income and assets met the 125% poverty limit for the household size and state, the visa was usually approved as a matter of course.

Under the old rules, if the income was insufficient, the sponsor has to have assets that is five times the difference between the income and the 125% poverty limit. For example, for a family of three in 2017, the income has to be $25,525.00.  Since my husband was already retired, he had a very small social security income that was only about $12,000.00.  So the difference would be $13,525.00.  If an LPR were to prepare the AOS, the asset would have to be $67,625.00. Since my husband is a U.S. Citizen he only has to have assets that is three times the difference or $40,575.00. The asset has to be something that can be liquidated within a year from the immigration of the applicant/beneficiary.  So a more liquid asset like cash in the bank or investments is preferred.

Under the New Rules

Although the AOS still plays a part on the evaluation of whether the beneficiary/applicant may be a public charge, it is only a positive factor.  Under the new rules, the self-sufficiency of the applicant comes into play.  In 9 FAM (Foreign Affairs Manual) 302.8-2(B)( 2 ), the "totality of circumstances" will be under evaluation. The manual takes into consideration: (a) age; (b) health; (c) family status; (d) assets, resources, and financial status; and (e) education and skills of the APPLICANT.  It would appear that the present rules will make even family-based immigration "merit-based".  

How will this effect the immigration of your elder parents, or your wife who may have a spotty work experience or none at all? Most likely their visa application will be denied.  For older applicants that may have some health issues, proof of medical insurance or ability to pay medical expenses is required.

If in the previous guideline, the applicant's financial resources is not the main consideration for the approval of the visa, it can be a positive factor now.  So if the applicant has sufficient financial resources, then it is to the advantage of the applicant.  But as in the previous rule, the asset has to be liquid enough that it can be liquidated within a year.  If the asset includes real property, plans on how to dispose of that real property has to be in place, or if the applicant has money/investments in a foreign bank, how they will be transferred.  

Since these guidelines took effect only in 2019, its effect on the number of approved visa applications remains to be seen.

Sadly, if the visa application for your wife or significant other is negatively impacted by these guidelines, you cannot complain and say how come others were not.  Administrative rules and regulations, as this is, is prospective in character and consequently will affect only those whose visa applications were pending upon the approval of the new rules.

Disclaimer

I am a lawyer licensed at the moment, only in the Philippines. I am, however, studying for the NY bar, and on the side I read US immigration rules and regulations "for fun."  Nonetheless, I am not an authority on the matter so please do consult licensed lawyers in the U.S..  Once I am licensed I will tell you, and even then you are not my client and consequently anything I say should not be considered as an advice to you.  


  

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