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Chapter 8 - Family Status

Alert

On Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows DHS to resume implementing the Public Charge Ground of Inadmissibility final rule nationwide, including in New York, Connecticut and Vermont. The decision stays the July 29, 2020, injunction, issued during the coronavirus (COVID-19) pandemic, that prevented DHS from enforcing the public charge final rule during a national health emergency.

Therefore, we will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. If you send your application or petition by commercial courier (for example, UPS, FedEx, or DHL), we will use the date on the courier receipt as the postmark date.

For information about the relevant court decisions, please see the public charge injunction webpage.

Officers must consider an applicant’s family status when determining whether an alien is likely to become a public charge at any time in the future.[1]

USCIS considers whether the alien has a household to support, or whether the alien is being supported by others in the alien’s household, and whether the alien’s household size makes the alien more or less likely to become a public charge. Family status must be reviewed in connection with, among other things, the alien’s assets and resources.

Having a large number of household members may be a negative factor, because a higher financial responsibility and support obligation is needed to avoid relying on public benefits.[2] However, household members may have their own income and assets to either support themselves or contribute to the household. An applicant should at least be able to support him or herself and the number of dependents in the applicant’s household at 125 percent of the Federal Poverty Guidelines (FPG).

A. Standard

USCIS considers an alien’s household size in relation to the alien’s assets and resources to determine whether the alien is more likely than not to become a public charge in the future. For aliens who are children,[3] USCIS reviews the assets and resources of household members in the parents’ household.

If the applicant is able to support him or herself and the alien’s household members at 125 percent of the FPG for the alien’s household size, then this is a positive factor. If the applicant is not able to support him or herself and the household members at 125 percent of the FPG for the alien’s household size, then this is a negative factor. USCIS considers the applicant’s assets and resources, to determine whether the applicant’s family status is a positive or negative factor.[4]

1. Household Members for Applicant over Age 21 or Under 21 and Married

For applicants who are over the age of 21 or under the age of 21 and married, USCIS considers the following people as part of the household:

  • The alien;

  • The alien's spouse, if physically residing with the alien;

  • The alien's children, unmarried and under the age of 21,[5] physically residing with the alien;

  • The alien's other children, unmarried and under the age of 21,[6] not physically residing with the alien for whom the alien provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;

  • Any other person(s) (including a spouse not physically residing with the alien) to whom the alien provides, or is required to provide, at least 50 percent of the person’s financial support or who are listed as dependents on the alien's federal income tax return; and

  • Any person who provides to the alien at least 50 percent of the alien’s financial support, or who lists the alien as a dependent on his or her federal income tax return.

A person who provides to the alien at least 50 percent of the alien’s financial support may include another relative such as a grandparent, parent, or sibling living with the alien or someone not living with the alien who provides the alien with a monthly or yearly income, or supports the alien through payment of mortgage or rent, utility bills, grocery bills, or other needs. An alien must properly document and establish that such person is providing support for the alien for the person to be considered part of the household.

2. Household for Applicants under 21 and Unmarried

If the alien is a child as defined in INA 101(b)(1), the alien’s household includes the following:

  • The alien;

  • The alien's children[7] physically residing with the alien;

  • The alien’s other children[8] not physically residing with the alien for whom the alien provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;

  • The alien's parents, legal guardians, or any other person providing or required to provide at least 50 percent of the alien’s financial support as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided to the alien;

  • The parents’ or legal guardians’ other children[9] physically residing with the alien;

  • The alien’s parents’ or legal guardians’ other children,[10] not physically residing with the alien for whom the parent or legal guardian provides or is required to provide at least 50 percent of the other children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the parents or legal guardians; and

  • Any other person(s)[11] to whom the alien’s parents or legal guardians provide, or are required to provide at least 50 percent of the person’s financial support or who is listed as a dependent on the parent's or legal guardian's federal income tax return.

B. Summary of Family Status

The following table provides a list of positive and negative factors relevant to family status.

Applicant's Family Status

Positive Factors

Negative Factors

If the alien is able to support him or herself and his or her household members at or above 125 percent of the FPG (100 percent for active duty military, other than active duty for training, in the U.S. armed forces) for the alien’s household size. If the alien is not able to support him or herself and his or her household members at or above 125 percent of the FPG (100 percent for active duty military, other than active duty for training, in the U.S. armed forces) for the alien’s household size.  

C. Evidence

Evidence of family status includes information regarding the household members, which may include birth certificates, marriage certificates, and affidavits to establish relationships.

Footnotes


[^ 1] See INA 212(a)(4).

[^ 2] See DHS’s analysis of SIPP data in Tables 16 and 17 in 83 FR 51114, 51185-86 (Oct. 10, 2018) (proposed rule).

[^ 3] As defined by INA 101(b)(1).

[^ 4] For more information, see Chapter 9, Assets, Resources, and Financial Status [8 USCIS-PM G.9].

[^ 5] As defined in INA 101(b)(1).

[^ 6] As defined in INA 101(b)(1).

[^ 7] As defined in INA 101(b)(1).

[^ 8] As defined in INA 101(b)(1).

[^ 9] As defined in INA 101(b)(1).

[^ 10] As defined in INA 101(b)(1).

[^ 11] Such as a child or parent.

Resources

Legal Authorities

10 U.S.C. 504(b) - Citizenship or residency

15 U.S.C. 1681 - Congressional findings and statement of purpose

21 U.S.C. 802 - Definitions

21 U.S.C. 841 - Prohibited acts A

22 CFR 40.51 - Labor certification

29 CFR 570 - Child labor regulations, orders and statements of interpretation

29 U.S.C. 213(c) - Child labor requirements

31 U.S.C. 9304-9308 - Sureties and surety bonds

31 U.S.C. 9305 - Authority and revocation of authority of surety corporations

38 U.S.C 1965 - Definitions

42 CFR 34.4 - Medical notifications

42 U.S.C. 1382c (PDF) - Definitions

42 U.S.C. 413 - Quarter and quarter of coverage

42 U.S.C. 416(l) - Retirement age

7 CFR 273 - Certification of eligible households

8 CFR 1.2 - Definitions

8 CFR 1.3 - Lawfully present aliens for purposes of applying for Social Security benefits

8 CFR 1003.14 - Jurisdiction and commencement of proceedings

8 CFR 1003.1 - Organization, jurisdiction, and powers of the Board of Immigration Appeals

8 CFR 103.6 - Surety bonds

8 CFR 204.5 - Petitions for employment-based immigrants

8 CFR 212.20-212.23 - Applicability of public charge inadmissibility; Definitions; Public charge determination; Exemptions and waivers for the public charge ground of inadmissibility

8 CFR 212.21(b) - Public Benefits

8 CFR 212.4 - Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3)

8 CFR 213.1 - Admission under bond or cash deposit

8 CFR 213a - Affidavits of support on behalf of immigrants

8 CFR 214.2 - Special requirements for admission, extension, and maintenance of status

8 CFR 214.2 - Special requirements for admission, extension, and maintenance of status

8 CFR 235 - Inspection of persons applying for admission

8 CFR 245.11 - Adjustment of aliens in S nonimmigrant classification

8 CFR 292 - Representation and appearances

8 CFR 293.1 - Computation of interest

8 U.S.C. 1363 - Deposit of and interest on cash received to secure immigration bonds

8 U.S.C. 1601-1646 - Restricting welfare and public benefits for aliens

8 U.S.C. 1611 (PDF) - Aliens who are not qualified aliens ineligible for Federal public benefits

8 U.S.C. 1612 (PDF) - Limited eligibility of qualified aliens for certain Federal programs

8 U.S.C. 1613 (PDF) - Five-year limited eligibility of qualified aliens for Federal means-tested public benefit

8 U.S.C. 1641 (PDF) - Definitions

INA 101 - Definitions

INA 101(a)(15) - Nonimmigrant classifications

INA 201 - Worldwide level of immigration

INA 203 - Allocation of immigrant visas

INA 208 - Asylum

INA 212(a)(4) - Public charge

INA 212(d) - Temporary admission of nonimmigrants

INA 213 - Admission of certain aliens on giving bond or undertaking; return upon permanent departure

INA 235 - Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing

INA 237(a)(5) - Public charge (deportable aliens)

INA 239, 8 CFR 239 - Initiation of removal proceedings

INA 245(j) - Adjustment to permanent resident status

INA 2488 CFR 248 - Change of nonimmigrant classification

INA 289 - Application to American Indians born in Canada

Inadmissibility on Public Charge Grounds, 84 FR 41292 (Aug. 14, 2019) (Final rule)

Pub. L. 104-193 (PDF) - Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996

Pub. L. 104-208 (PDF) - Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Pub. L. 106-395 (PDF) - Child Citizenship Act of 2000

Pub. L. 111-293 (PDF) - Help Haitian Adoptees Immediately to Integrate Act of 2010

Pub. L. 111-8 (PDF) - Section 602(b), Title VI of the Afghan Allies Protection Act of 2009

Pub. L. 113-4 (PDF) - 127 Stat 54 of the Violence Against Women Reauthorization Act of 2013

Pub. L. 89-732 (PDF) - Cuban Refugees Adjustment of Status

Section 11, 26 Stat 1084 (PDF) of the Immigration Act of 1891

Section 212(a)(15), 66 Stat 163 (PDF), 183 of the Immigration and Nationality Act of 1952

Sections 1-2, 22 Stat 214 (PDF) of the Immigration Act of 1882

Appendices

Appendix: Applicability of INA 212(a)(4) to Employment-Based Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Family-Based Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Other Applicants
Appendix: Applicability of INA 212(a)(4) to Refugee, Asylee, and Parolee Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Special Immigrant Adjustment of Status Applications
Appendix: Eligibility for Public Benefits
Appendix: Totality of the Circumstances Framework

Updates

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

POLICY ALERT - Implementation of Guidance on Inadmissibility on Public Charge Grounds

This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of aliens who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see our page on the injunction.

Read More
POLICY ALERT - Public Charge Ground of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1. For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of aliens who are exempt from the final rule, see the appendices related to applicability.

Read More
Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].