adoption immigration legal analysis

Citizens Cannot Be Public Charges: A Legal Analysis of Why the Visa Pause Should Not Apply to IH-3 Adoptees

An examination of INA § 212(a)(4), the Child Citizenship Act, and why the State Department's own guidance supports exempting IH-3 adoption visas from the January 2026 visa pause.

Citizens Cannot Be Public Charges: A Legal Analysis of Why the Visa Pause Should Not Apply to IH-3 Adoptees

On January 14, 2026, the U.S. Department of State announced a pause on all immigrant visa issuances for nationals of 75 countries. The stated justification is concern that immigrants from these countries may become “public charges,” meaning individuals who become primarily dependent on government assistance for their subsistence.1

This pause applies to IH-3 visas, which are the immigrant visas used to bring children home in Hague Convention intercountry adoptions where the adoption has been finalized abroad.2 As a result, American families who have completed years of vetting and are awaiting final visa issuance for their adopted children now face indefinite delay.

This post examines whether the “public charge” ground of inadmissibility can legally be applied to children entering on IH-3 visas. The answer, based on statutory text and the State Department’s own guidance, is no. Children entering on IH-3 visas automatically become United States citizens upon admission. Because the public charge statute applies only to “aliens,” and these children cease to be aliens the moment they enter the country, the public charge ground of inadmissibility cannot reach them.

The State Department memo relies on concerns about immigrants becoming a “financial burden” on the United States. In immigration law, this concern is addressed through the “public charge” ground of inadmissibility found in the Immigration and Nationality Act.3

To understand why this ground cannot apply to IH-3 adoptees, we must examine two elements: (1) what the IH-3 visa is, and (2) what the public charge statute actually requires.

What Is an IH-3 Visa?

An IH-3 visa is an immigrant visa issued to a child who has been adopted abroad under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.4 The “IH” designation indicates a Hague Convention case, and the “3” indicates the adoption was finalized in the foreign country before the child travels to the United States.5

The IH-3 visa is classified as an immigrant visa because the child is being admitted to the United States as a lawful permanent resident. This classification is what brings the visa within the scope of the January 14 memo, which pauses “immigrant visa” issuances.

What Does “Public Charge” Mean?

The public charge ground of inadmissibility is codified at INA § 212(a)(4), which provides:

“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.”6

The State Department’s Foreign Affairs Manual defines “public charge” as follows:

“[T]he term ‘public charge’ means that an individual, after admission into the United States, is likely to become primarily dependent on the U.S. Government for subsistence.”7

Two textual features of this statute are critical:

  1. The statute applies only to “aliens.” The word “alien” is not a general descriptor. It is a defined statutory term.

  2. The determination is forward-looking. The question is whether the person is likely to become a public charge “after admission” to the United States.

Statutory Definition of “Alien”

The Immigration and Nationality Act defines “alien” with precision:

“The term ‘alien’ means any person not a citizen or national of the United States.”8

This definition is straightforward: if a person is a United States citizen, that person is not an alien. And if a person is not an alien, the public charge ground of inadmissibility, which by its terms applies only to “any alien,” does not apply to them.

This is not a technicality. The entire structure of immigration law’s inadmissibility provisions is built around the concept of “aliens.” Section 212(a) of the INA is titled “Inadmissible aliens” and its provisions consistently refer to “any alien who…” followed by the specific ground.9 United States citizens cannot be found inadmissible under any of these provisions because citizens have a constitutional right to enter and remain in their own country.10

When Do IH-3 Adoptees Become Citizens?

The Child Citizenship Act of 200011 provides that certain foreign-born children of U.S. citizens acquire citizenship automatically, by operation of law, without any need for naturalization proceedings. The statute, codified at 8 U.S.C. § 1431, provides:

“A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.”12

For Hague Convention adoptions, the parent-child relationship is established when the adoption is finalized in the foreign country. In Colombia, this occurs with the sentencia (adoption decree). The INA explicitly recognizes this foreign adoption: a “child” includes one “who has been adopted in a foreign state that is a party to the Convention.”13 The Child Citizenship Act explicitly applies to such adopted children.14

By the time the family travels to the United States, the U.S. citizen is already the child’s legal parent, and the child is under eighteen. The first two conditions of the Child Citizenship Act are therefore satisfied before departure.

The IH-3 visa confers lawful permanent resident status upon admission.15 The child travels with the adoptive parent and enters the parent’s custody upon arrival. The third condition, “residing in the United States…pursuant to a lawful admission for permanent residence,” is satisfied at the port of entry. At that moment, all three statutory conditions are fulfilled, and citizenship vests automatically.

The State Department’s Own Guidance Confirms This Timing

The State Department’s Foreign Affairs Manual explicitly addresses when citizenship is acquired under the Child Citizenship Act:

“Given the difficulty of determining an exact date on which a person begins ‘residing in the United States’ for citizenship acquisition purposes, and for the sake of consistency, if all other requirements of INA 320 have been met, you should use the date of lawful admission to the United States as the date upon which the child acquired U.S. citizenship.”16

For IH-3 visas specifically, the FAM states:

“The child will automatically acquire U.S. citizenship as of the date of admission to the United States: (1) Upon residing in the United States with the U.S. citizen parent; (2) After having been lawfully admitted into the United States for permanent residence.”17

This is not ambiguous. The State Department’s own guidance recognizes that IH-3 children become citizens upon admission. This happens not days, weeks, or months later, but at the moment they enter the country.

Why Public Charge Cannot Apply to IH-3 Children

The logical chain is now complete:

  1. The public charge ground of inadmissibility applies only to “aliens.”18

  2. An “alien” is defined as “any person not a citizen or national of the United States.”19

  3. Children entering on IH-3 visas automatically become United States citizens upon admission.20

  4. Therefore, at the moment these children enter the United States, they are no longer aliens.

  5. Because they are not aliens in the United States, they cannot “become a public charge” in the United States as that term is used in the statute.

The window of time during which IH-3 children are both (a) present in the United States and (b) aliens is zero. Citizenship attaches instantaneously upon admission.

Addressing the Timing of the Determination

One might argue that the public charge determination is made “at the time of application for a visa,” which occurs before the child enters the United States and before citizenship attaches. This is technically true. However, the statutory test is not whether the child is a public charge at the time of visa application. The test is whether the child “is likely at any time to become a public charge” after admission.21

This is a forward-looking inquiry. The consular officer must assess whether, after the child is admitted to the United States, that child is likely to become primarily dependent on government assistance. For IH-3 children, “no”. This is not because they will be wealthy, but because they will not be aliens after admission. They will be citizens. And citizens cannot be “public charges” under the INA.

The State Department Acknowledges This in Its Own Guidance

The State Department’s Foreign Affairs Manual, in addressing the affidavit of support requirements related to public charge, explicitly recognizes this problem:

“Although such a visa applicant is still subject to the public charge provisions of INA 212(a)(4) even without an affidavit of support requirement, the public charge concern will no longer apply to the applicant once the immigrant acquires citizenship. You should consider the applicant’s acquisition of citizenship immediately upon admission when you determine whether the applicant is likely to become a public charge at any time while in the United States as an alien.”22

The FAM continues:

“In cases involving IV applicants who will be acquiring citizenship upon admission, pursuant to INA 320 it is unlikely in the absence of unusual circumstances that the individual will become a public charge while still an alien before naturalization.”23

This guidance acknowledges what the statute compels: because citizenship acquisition is instantaneous upon admission, there is no meaningful period during which the child could become a public charge “as an alien.”

No Affidavit of Support Is Required

Consistent with this understanding, IH-3 visa applicants are exempt from the Form I-864 Affidavit of Support requirement, which is the primary enforcement mechanism for public charge determinations in family-based immigration.24

The FAM instructs consular officers that Form I-864 is not required for “those categories of immigrants who will acquire citizenship upon admission to the United States.”25 USCIS policy confirms this exemption applies to children in IR-3 and IH-3 classifications who will automatically acquire citizenship under INA § 320.26

If public charge were a genuine concern for IH-3 children, the government would require the same financial guarantees it requires for other family-based immigrants. It does not, because the government recognizes these children will be citizens, not public charge risks.

Additional Safeguards Already Exist

Even setting aside the citizenship issue, the intercountry adoption process already includes financial vetting that addresses public charge concerns.

Before any child is matched with prospective adoptive parents, USCIS must approve Form I-800A, which requires demonstration that the adoptive parents have “sufficient financial resources to provide for the family and for the support, maintenance, and education of the child.”27 This determination requires evidence of income at or above 125% of the federal poverty guidelines for the household size.28

In other words, prospective adoptive parents must prove their financial capacity to support the child before they are even permitted to be matched with a child. By the time the IH-3 visa stage is reached, the family has already passed the functional equivalent of a public charge determination.

Conclusion

The State Department’s January 14, 2026 memo pauses immigrant visa issuances based on public charge concerns. But for children entering on IH-3 visas, those concerns are legally inapplicable.

The public charge statute applies only to aliens. IH-3 children become United States citizens automatically upon admission to the United States. At the moment they enter the country, they cease to be aliens and become citizens with all the rights that status entails, including the right to reside in their own country without being deemed a “public charge.”

The State Department’s own Foreign Affairs Manual recognizes that “the public charge concern will no longer apply to the applicant once the immigrant acquires citizenship” and instructs consular officers to consider “acquisition of citizenship immediately upon admission” when making public charge determinations.29 This guidance reflects what the statute requires.

Applying the public charge pause to IH-3 adoptees contradicts both the text of the Immigration and Nationality Act and the government’s own longstanding interpretation of that text. IH-3 visas should be exempted from the January 14 memo.

Footnotes

  1. The memo states: “President Trump has made clear that immigrants must be financially self-sufficient and not be a financial burden to Americans. The Department of State is undergoing a full review of all policies, regulations, and guidance to ensure that immigrants from these high-risk countries do not utilize welfare in the United States or become a public charge.” U.S. Dep’t of State, Immigrant Visa Processing Updates for Nationalities at High Risk of Public Benefits Usage (Jan. 14, 2026), https://travel.state.gov/content/travel/en/News/visas-news/immigrant-visa-processing-updates-for-nationalities-at-high-risk-of-public-benefits-usage.html. ↩

  2. IH-3 visas are issued to children whose adoptions have been finalized abroad under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. See 8 U.S.C. § 1101(b)(1)(G); 22 C.F.R. § 42.21. ↩

  3. Immigration and Nationality Act § 212(a)(4), 8 U.S.C. § 1182(a)(4). The grounds of inadmissibility are the statutory bases upon which the executive branch may deny a visa or entry to a foreign national. The executive branch must point to a specific statutory ground; it cannot create new grounds of inadmissibility by policy or regulation. ↩

  4. The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, concluded May 29, 1993, was implemented in the United States by the Intercountry Adoption Act of 2000, Pub. L. No. 106-279, 114 Stat. 825. ↩

  5. The “3” in IH-3 indicates the adoption was finalized in the foreign country before the child travels to the United States. This means the child is legally the child of the U.S. citizen parent before entering the United States, which is critical for automatic citizenship acquisition under the Child Citizenship Act. ↩

  6. 8 U.S.C. § 1182(a)(4)(A) (emphasis added). The statute further provides that in making a public charge determination, the consular officer shall consider “at a minimum” the alien’s age, health, family status, assets, resources, financial status, and education and skills. 8 U.S.C. § 1182(a)(4)(B)(i). ↩

  7. 9 FAM 302.8-2(B)(1), https://fam.state.gov/fam/09fam/09fam030208.html. The FAM further specifies that “public charge” means receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.” Id. ↩

  8. 8 U.S.C. § 1101(a)(3). ↩

  9. See 8 U.S.C. § 1182(a) (titled “Classes of aliens ineligible for visas or admission” and listing grounds applicable to “any alien who…”). ↩

  10. See United States v. Wong Kim Ark, 169 U.S. 649 (1898) (establishing that a U.S. citizen born in the United States has the right to return to and reside in the country); see also Vance v. Terrazas, 444 U.S. 252, 260 (1980). Because citizens cannot be excluded from the United States, the inadmissibility provisions of INA § 212(a) are inapplicable to them. ↩

  11. Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (codified at 8 U.S.C. § 1431). ↩

  12. 8 U.S.C. § 1431(a) (emphasis added). ↩

  13. 8 U.S.C. § 1101(b)(1)(G) defines “child” to include a child “who has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption” if the child was under sixteen when the petition was filed, is the natural sibling of another such child, or was under eighteen when the petition was filed. ↩

  14. 8 U.S.C. § 1431(b) (“Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101(b)(1) of this title.”). ↩

  15. An immigrant visa, by definition, authorizes admission for lawful permanent residence. See 8 U.S.C. § 1101(a)(16) (defining “immigrant visa”). ↩

  16. 8 FAM 301.10-2(F), https://fam.state.gov/fam/08fam/08fam030110.html. ↩

  17. 8 FAM 301.10-3(E), https://fam.state.gov/fam/08fam/08fam030110.html. The FAM notes that USCIS will “automatically generate and mail” a Certificate of Citizenship to eligible IH-3 children. ↩

  18. 8 U.S.C. § 1182(a)(4)(A) (“Any alien who…is likely at any time to become a public charge is inadmissible.”). ↩

  19. 8 U.S.C. § 1101(a)(3). ↩

  20. 8 U.S.C. § 1431(a); 8 FAM 301.10-3(E). ↩

  21. 9 FAM 302.8-2(A) (“INA 212(a)(4) provides that an applicant who, in your opinion, at the time of application for a visa, for admission, or adjustment of status, is likely at any time to become a public charge after admission to the United States is ineligible for a visa.”). ↩

  22. 9 FAM 601.14-4(A)(1), https://fam.state.gov/fam/09FAM/09FAM060114.html (emphasis added). ↩

  23. Id. (emphasis added). ↩

  24. The Form I-864 Affidavit of Support is a legally enforceable contract in which a sponsor agrees to maintain the sponsored immigrant at 125% of the federal poverty level and to reimburse any government agency that provides means-tested public benefits to the immigrant. See 8 U.S.C. § 1183a. ↩

  25. 9 FAM 601.14-1(B)(2); see also 9 FAM 601.14-4(A)(1) (“An I-864, I-864A, I-864EZ, or I-864W is not required in cases involving an orphan or a Hague Convention Adoptee”). ↩

  26. USCIS Policy Manual, Vol. 8, Pt. G, Ch. 6 (“[A]n alien child adopted by U.S. citizens, such as orphans or Hague Adoptees (IR-3 or IH-3 classifications) automatically acquires U.S. citizenship if the child enters the United States before the child’s 18th birthday and resides with the U.S. citizen parent. Therefore, these children are exempt from the affidavit of support requirement.”). ↩

  27. See 8 C.F.R. § 204.311(h) (requiring the home study to include “a description of the applicant’s income, financial resources, debts, and expenses” and “a statement concerning the evidence that was considered to verify the source and amount of income and financial resources”). The 125% of federal poverty guidelines threshold is derived from the Form I-864 Affidavit of Support requirements for other family-based immigration categories, see 8 U.S.C. § 1183a(a)(1)(A), and is commonly applied as the benchmark for evaluating financial capacity in adoption home studies. ↩

  28. See 8 U.S.C. § 1183a(a)(1)(A) (requiring sponsors to demonstrate income at least 125% of federal poverty guidelines). ↩

  29. 9 FAM 601.14-4(A)(1). ↩

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