Totality of Circumstances and I-134 for the K-1 visa interview

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Totality of Circumstances means they look at much more than just your financials during the K-1 visa interview.  Five factors influence their decision about your “public charge”.

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If I asked “How could you prove you can financially care for your incoming fiance?” — what would you say?

Most of us would immediately reply “the I-134 Affidavit of Support and my tax documents. I’ve got to make enough money, right?!”

For the most part, yes, that’s what you need for the fiance visa interview. But a simple number is not the only thing that influences the officer’s decision to approve you.

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To explain, let me throw two scenarios at you. Tell me what you think…

Imagine being an older petitioner or beneficiary nearing retirement age. You won’t have your current income for long, no Social Security income, pension income, not even savings. To make things worse, you’ve got expensive health issues. All things considered — even if your current I-134 AOS and tax returns shows you’ve got enough — would it really be “enough”?

Next, imagine you’re a good, dependable person, but happen to be a serial job jumper. You can’t hold on to a job for too long. You get hired and fired within a month. Even if your tax returns prove you’re above minimum poverty limits, do your circumstances show you’re “stable”? How confident can an officer be that you won’t lose your job again and go on government assistance?

Finally, imagine you’re a young person who just graduated college (either the US sponsor and beneficiary). Your skills are going to be in high demand. Despite not having past tax returns to show income, wouldn’t it make sense that you’re going to have “enough” to care for your fiance?

Let’s think about these examples. Notice in the first one, you’re making above the minimum poverty limits, but your circumstances are unpredictable because you’re going to retire soon. 

In the second example, you’re above minimum poverty limits, but your circumstances are unstable because you don’t hold on to jobs for long.

In the last example, you don’t actually have income but your future looks promising.

So, does the officer have to stick the I-864p minimum limits and ignore other important factors? Or can they make decisions despite what the numbers say? 

It turns out, they do. Your I-134 Affidavit Of Support is not the ONLY thing officers consider when they review your case. In fact, they actively base their decision on 5 distinct factors… AND if one of these becomes a huge part, it can make or break the case.

That’s what the totality of circumstances is all about in your Fiance K-1 visa. But first, the basics…

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What is “Public Charge” for the I-134 AOS?

First: why do they ask for the I-134 Affidavit of Support and your financials? 

Well, they want to know if the incoming beneficiary is going to be a “public charge”. 

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INA 212(a)(4)

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Simply put, the law tells officers not to approve a Fiance K-1 visa unless the petitioner can show he/she’s got “enough” to support the incoming fiance.

And the reason they do this is to make sure your fiance won’t become a “burden” on the US…that the petitioner won’t throw up his/her hands: “I can’t afford it any longer” and look to the US government for help (i.e. go on governmental assistance, like Welfare)

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US Department of State (US DOS) https://fam.state.gov/FAM/09FAM/09FAM030208.html

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In short, they’ll deny your visa if it means they have to dish out money to take care of you. So, it becomes our duty to prove to them that we’re qualified and “have enough” to overcome “public charge” on our own.

Now, think back to our examples (retiree, job jumper, graduate). Notice people’s situations are complex… and it’s unfair to base a decision on just ONE number… so that’s why the US DOS considers the “totality of circumstances” and not just your financials.

And THIS turns out to be an extremely important part for your case.
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Fiance Visa – Totality of circumstances

Think of the “totality of circumstances” as the entire package. Meaning, the US Embassy must consider important things like:

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● Age

● Health

● Family status

● Financial status

● Education and skills

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(These apply to BOTH the US sponsor and beneficiary).

I found this astounding when I first read it. It says that things such as your age, health, even family status affect how officers interpret your “public charge”. 

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US Department of State

9 FAM 302.8-2(B)(2) – totality of circumstances

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Notice the most-important point here: the I-134 Affidavit of Support is just ONE part of the puzzle (that’s # 4, “financial status”).

Again, they realize your financials won’t give them a full picture, that’s why they’re open-minded (examples: the retiree, job jumper, and young college graduate).

Which of course, can be a positive or negative thing. It’s positive for the young college graduate, but may be negative for the retiree. 

That’s what I want you to understand. So, let’s discuss these factors in detail. Starting with the first factor: age.

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Totality of circumstances 1 – Age

Your age could be a negative or positive factor in your case. 

Generally if you’re within normal working age — usually 18 years all the way to 65 years — then you don’t have to worry much. But if you’re much older, then the officer may wonder if your age will get in the way of you earning money in the future enough to care for your fiance (e.g. will you still be working and making this income after you retire?) 

(By the way, this applies to both the petitioner and beneficiary).

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9 FAM 302.8-2(B)(2)(d)

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On the other hand, if you’re a young person, then it may be a positive thing. Imagine, for instance, you’re 25 years old and making the minimum poverty limits. The officer might  say “She’s just 25 years old, she’s got lots of years ahead of her to earn more and grow. I’m sure they’ll be fine.”

You may wonder whether this actually happens behind the scenes or not. After all, we’re all conditioned to see “income, income, income” of the I-134. But the truth is officers do look at this closely.

Let me prove it: ever notice how some approved couples report that the officer completely ignored their I-134 affidavit of Support packet at the K-1 visa interview?

It happens when officers realize you two are able-bodied and have lots of time to earn money / get educated / promoted in the future. Despite what your financials say (good or bad), they think you’ve got a positive future.

That’s one of the reasons they sometimes don’t bother looking at it. Does this happen to everyone? No… but to some, yes.

Now you know.

So… do you see how the “age” factor may be important in the totality of circumstances?  Starting to realize why the I-134 Affidavit of Support is not the only important factor?

If so, let’s talk about the second factor: health.

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Totality of circumstances 2 – Health

Health problems are not a common reason for “public charge” denial. But, sometimes they can be. So, it’s best to briefly cover it.

Health issues can affect your Totality of Circumstances in two ways.

First, realize: your health affects how well you can earn money. 

If the beneficiary has a health problem that’s, for example a disease, mental issues, etc. which “prevents normal functioning” in life… will that affect your fiance’s ability to earn money? Or earn as much as an average person his/her age?

Secondly – is it a condition that’ll make it expensive for the US to take care of your fiance in case he/she gets hospitalized? 

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9 FAM 302.8-2(B)(2)(b)

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Does he/she suffer from some mental health condition that’ll have you hospitalized for a long time? Will the US government have to pay for medical expenses? Do you have insurance? Will your income be enough even if you’re above the poverty limits?

It’s shocking: even if the US petitioner makes enough money but your fiance has some health issues that are going to be expensive, the officer can deny your case. 

To summarize: it’s uncommon to be denied for a health “public charge”, but it is possible.

Lately, the US Consulate is allowed to ask about health insurance at the K visa interview.

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Totality of circumstances 3 – Family Status

This means that if you’re responsible for lots of dependents — such as children, siblings or aging parents — then that may count against you unless you can show you make enough money to care for all your dependents including your incoming K-1 fiance and any K-2 visa children. 

Take for example, our friend Michael. He’s got 2 aging parents, and 1 child from a previous marriage, and also has sponsored other relatives for immigration in the past. 

All these dependents weigh against his ability to provide for his incoming fiance. (He should seriously think about a joint sponsor for his fiance’s I-134)

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Most of us will wonder, “wait a minute, how would they even know I’ve got these dependents to take care of? It’s not like they’re going to come to my home to see.” 

Well, remember, you have to disclose your dependents in the “household size” part of the I-134 AOS. If you take tax deductions on dependents, they count as “household size” members (in the I-864p limits).

In addition, the age of the dependents becomes important. For instance, aging parents probably “cost” more than, let’s say teenagers, due to aging parents’ health costs.

Again, we can make guesses about “how often do officers really deny people based on this kind of stuff — like age, family status, health… but it’s hard to tell because there are no exact statistics. 

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Totality of circumstances 4 – Assets, Resources, financial status, and the I-134

This is your actual financial situation: your work, your income, savings account, homes, personal assets, and so on. And it’s your actual I-134 Affidavit of Support. 

This is the # 1 thing that officers look at to determine the “totality of circumstances”. But, notice how it’s still only 1 out of 5 factors in determining “public charge”. 

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So — what exactly do they look for in your financials? 

Simple: Do you currently have enough income / assets to “support” your fiance?

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Things that work for you are…

● Having an income that’s above poverty limits (100% or preferably 125%)

● Having a “stable” income. (remember the “job jumper” example?)

● Owning property, assets, stocks, etc. Are they sellable in case of an emergency?

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Things that work against you are…

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● Having taken “public assistance” before (like welfare)? What’s the likelihood you’ll do it again? Does it look like you and your fiance may be “on the street” at a point in the future?

● Even if you’re employed earning “enough” income, how likely is this to continue?

● Or are you just barely making ends meet with Social Security and retirement income? Veterans benefits? Disability?

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I won’t go into detail with the I-134 AOS because it’s covered in my website. 

But the main point to remember is: your job, your income, your assets or your resources all play a part in convincing the consular. The more you’re over the minimum poverty limits, the better it is. (Read my top tips for the I-134).

Sorry to sound like a broken record: your financial status is at the top of the list when officers want to know if you “have enough” to sponsor your fiance. I estimate 80-90% of the time, they ignore the remaining 4 such as age, health, family status, education, etc. 

However, if one of the other sections is too negative or too positive, then it can affect their decision.

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Totality of circumstances 5 – Education and Skills

What is your history of education, skills, and how employable are you? 

Do you have a college degree? Are you highly skilled or trained with prospects of a good future job? 

Those are good circumstances for your “totality of circumstances”. 

This even applies if you haven’t started working yet. Think back to our example about the recently-graduated college student who hadn’t quite started to work yet. She doesn’t have tax returns. What can she show? 

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9 FAM 302.8-2(C)(10) section E.3

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Well, besides current pay stubs and an employment letter, she can explain that her college education is in a field that’s in high demand. Officers may agree and approve their “public charge” criteria. (read the 4 problems that get I-134 denied).

To me, all of this is nothing short of incredible. Think about it, most of us fear that if our income is $5 below the minimum poverty limits, we’re doomed to a denial.

However, after reading this factor — and the other 4 — we realize that there’s so much interpretation that goes along with “public charge”. It’s not an exact science. There are so many variables and critical thinking the officer has to do.

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How the Totality of Circumstances affects your Fiance Visa

Now that you know the five factors that influence the officer’s decision, namely — 

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❏ Age

❏ Health

❏ Family status

❏ Financial resources

❏ Skills & education

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You realize: The I-134 form itself is just one piece of the puzzle — that’s # 4… the one that shows you have assets, resources or financial status to provide for your fiance. 

If your I-134 affidavit of support is comfortably above the minimum poverty limits, then you’re probably in good shape. In fact, most of the time, officers use it as a quick/easy way to make a decision on your case. 

They may not even care to think about the other four. 

But in some extreme cases, they will…Normally this happens if your other factors are working with you or against you in a major way (visa denials 212(a)(4)). 

Like age — it can work with you if you’re within working age (18+) and have the time to improve, work, and earn more. 

Some things can work against you, like health… like if both of you are ill, it can lead them to think you’ll be a “liability” on the US health system. Remember, these rules apply to both the US petitioner (sponsor) and the foreign fiance (beneficiary).

Figuring this out isn’t an exact science. There’s an exact dollar amount you need for approval. It all depends on how the officer feels regarding the “totality of circumstances”. 

Now, let’s talk about your situation. What’s the “totality of circumstances” for your fiance visa case? Write your experience below.

Be sure to sign up for my email list to learn the proper steps of preparing for your fiance visa interview — including how to take advantage of the totality of circumstances to get an approval at the K-1 visa interview.

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