People seeking U.S. Permanent Resident status ( a green card) must show that they are not likely to become a “public charge.” The latest USCIS adjudications policy on this requirement took effect December 23, 2022  and raised the bar for approval.  However, the Department of State (DOS)has not implemented the same policy change, so consular processing is now less challenging than adjustment of status, at least regarding the Public Charge Ground of Inadmissibility.

The government defines individuals as public charges if they benefit from certain cash income-maintenance programs and/or from “long-term institutionalization at government expense.”  When an individual applies for admission to the U.S., both DOS and USCIS make forward-looking determinations; that is, they look at whether the applicant is likely to become a public charge in the future based on the “totality of circumstances” at the time of application.  

An important piece of evidence for both agencies is the Affidavit of Support (Form I-864), required in most family- and some employment-based cases.  The signer thereby accepts financial responsibility for the applicant who is coming to live in the United States.  However, pursuant to the latest policy change, DOS and USCIS take different positions as to the overall significance of the Affidavit in case adjudication. 

The USCIS’ Policy Manual states, “No one factor, other than the lack of a sufficient Affidavit of Support… can be the sole criterion for determining if a noncitizen is likely at any time to become a public charge.”   In other words, for USCIS, the Affidavit is necessary but not sufficient to avoid a finding of inadmissibility on Public Charge grounds. 

But, according to DOS’ Field Adjudicator’s Manual, “A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to satisfy the INA 212(a)(4) requirements.” That is, for DOS a valid Affidavit is sufficient evidence, in and of itself, for a favorable Public Charge finding.  Therefore, Green Card applicants who have a choice as to whether apply for adjustment of status or consular process may benefit by taking the consular route.

There are many additional aspects to Public Charge adjudications, including what programs are not considered “public benefits” and who is exempt from the Public Charge ground.  Find comprehensive information as understood by USCIS here; as understood by the Department of State, here.