A

                                                         Interim Decision #3097




                                 MATTER OF A-

                    In Adjustment of Status Proceedings

             Designated by Commissioner December 29, 1988

(1) An applicant for temporary resident status under section 245A of the Tramlration and Nationality Act, 

.255A (Supp. PT 1986), who is found excludable and whose grounds of excludability can be waived must be advised by the Immigration and Naturalization Service that he can apply for a waiver of grounds of
  excludability.
(2) In determining whether an alien is likely to become a public charge under section 212(aX15) of thp Act, 

(aX15) (1982), the Service will consider the
  totality of the circumstances.
(3) A 33-year-old mother of three children, who is currently employed and is physically able to earn a living, is not likely to become a public charge, notwithstanding the fact that het family rcooived public each assistance for approximately 4
  years.
ON BEHALF OF APPLICANT: Pro se

  This matter is an appeal from the regional director's decision
finding the applicant ineligible for temporary resident status under
section 245A of the Immigration and Nationality Act, 8 U.S.C.
§ 1255A (Supp. IV 1986). The appeal will be sustained and the application for adjustment of status will be approved.
  The applicant is a married 33-year-old female, who is a native
and citizen of Mexico. Her spouse has been a lawful permanent
resident of the United States since 1973. The applicant has three
children, two of whom are citizens of the United States. The applicant entered the United States without inspection on or about January 19, 1979.
   In his decision, the director found that the applicant's family, but
not the applicant, received public cash assistance from August 1983
to July 1987, and that neither the applicant nor her spouse had
been working for the 4 years prior to the filing of the application.
The director noted that the applicant started working January 1,
1988. Nonetheless, he concluded that the applicant was unable to
support herself and her family without public assistance and consequently found her excludable under section 212(a)(15) of the Act, 

(a)(15) (1982).
Interim Decision #3097

  Section 245A of the Act permits certain aliens to adjust their
status if they satisfy specific statutory requirements. An alien who
applies under this prOvision generally must establish that he entered the United States prior to January 1, 1982, that he has resided in the United States in an unlawful status since such a date,
that he has been continuously physically present in the United
States since November 6, 1986, and that he is otherwise admissible
as an immigrant. Section 245A(a) of the Act.
  The sole issue in this appeal is whether the applicant is likely to
become a public charge and therefore not admissible as an immigrant pursuant to section 212(a)(15) of the Act.
  Preliminarily, we note that the director erred when he denied
the application pursuant to section 212(a)(15) because he did not
inform the applicant that she could apply for a waiver of her
ground of exclusion. The Service regulations state that "[i]f an
alien is excludable on grounds which may be waived as set forth in
this paragraph, he or she shall be advised of the procedures for applying for a waiver of grounds of excludability on Form 1-690." 8
C.F.R. § 245a.2(k)(2) (1988). Section 212(a)(15) of the Act is a ground
of exclusion that may be waived pursuant to section. 245A(d)(2)(B)(i)
of the Act. 'there is no indication in the record that the director
advised the applicant of her right to file an application for a
waiver of excludability. Failure to advise the applicant is a reversible error. However, in light of the findings outlined below, we will
not remand the record but will decide the merits of this appeal.
  Section 212(a)(15) of the Act excludes from admission into the
United States "[a]liens 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, are likely at
any time to become public charges."
  Section 245A(d)(2) of the Act sets forth the grounds of exclusion
that either may be waived or not waived by the Attorney General
and those grounds of exclusion that do not apply to an applicant
for temporary resident status under section 245A of the Act. Excludability under section 212(a)(15) of the Act may be waived. In
addition to the waiver provision, the Act contains a special rule for
determination of public charge. This rule states:
 An alien is not ineligible for adjustment of status under this section due to being
 inadmissible under section 212(aX15) if the alien demonstrates a history of employment in the United States evidencing self-support without receipt of public
 cash assistance.
Section 245A(d)(2)(B)(iii) of the Act. This rule has been incorporated
and explained by the Service at 8 C.F.R. § 245a.2(k)(4) (1988).

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                                                 Interim Decision *3097

   Considering the statutory scheme and the implementing regulations, a determination of whether an applicant is ineligible for temporary resident status because of excludability under section
212(a)(15) of the Act may involve up to three distinct phases. First,
a determination must be made whether the applicant is excludable
under section 212(aX15) of the Act. Second, if there is a finding of
excludability, the special rule should be applied to determine
whether the applicant is nonetheless admissible. Third, if the special rule does not remove the excludability ground, then the Service must advise the applicant that he can submit an application for
a waiver of excludability. Consequently, Congress has given an applicant who is potentially excludable under section 212(aX15) of the
Act three opportunities to cure this ground of inadmissibility.
   The threshold issue to be addressed in this appeal is whether the
applicant is likely to become a public charge. Congress did not
define the term "public charge." However, because Congress used
the term as found in. section 212(a)(15) of the Act, we must apply
this provision consistently with the established administrative
practice.
   The traditional test applied by the Service to determine whether
an alien is likely to become a public charge is "a prediction based
on the totality of the alien's circumstances" as presented in the individual case. Matter of Perez, 

 (BIA 1974). The
legislative history of the public charge provision is helpfully summarized in Matter of Harutunian, 

 (R.C. 1974).
   Even though the test is prospective, the Service has considered
evidence of receipt of prior public assistance as a factor in making
the public charge determination. Matter of Vindman, 

 (R,.C. 1977); Matter of Harutunian, supra. Other factors that
have been considered are the alien's age, capacity to earn a living,
health, family situation, work history, affidavits of support, and
other relevant factors. Matter of Perez, supra; Matter of Harutuntan, supra, at 588 00; Matter of Martinez Lopez, 

,
                   -                         -


421 (BIA 1962; A.G. 1964).
   Although all factors should be considered in their totality, the
Service also has held that "the alien's physical and mental condition, as it affects ability to earn a living, is of major significance."
Matter of Harutunian, supra, at 588; see also Matter of Vindman,
supra, at 132; Matter of Martinez-Lopez, supra,          at 421-22 ("A
healthy person in the prime of life cannot ordinarily be considered
likely to become a public charge, especially where he has friends or
relatives in the United States who have indicated their ability and
willingness to come to his assistance in case of emergency.").
Interim Decision #3097

   The applicant here is 33 years old. She is the mother of three
children. Her youngest child was born in the United States in 1982.
It is not unusual for a mother to stay at home to care for her children, especially when the children have not started school. A mother's absence from the work force to care for her children is not by
itself sufficient basis to find the mother likely to become a public
charge. There may be circumstances beyond the control of the
alien which temporarily prevent an alien from joining the work
force. For example, as the applicant states in her appeal, she lives
in an area where jobs are scarce and she had been unable to find a
job. These are all relevant factors that should be considered when
making a public charge determination.
   The director noted in his decision that the applicant started
working on January 1, 1988, but found the applicant has "not demonstrated the capacity to exist on . . . [her] income and maintain
. . . [her] family." Although the director was not precluded from
considering the family's financial circumstances, the director
placed undue weight on this factor, thereby overshadowing the
more important factors; namely, that the applicant has now joined
the work force, that she is young, and that she has no physical or
mental defects which might affect her earning capacity.'
   Accordingly, we find pursuant to section 212(a)(15) of the Act,
that, in the light of the applicant's age and ability to earn a living,
as evidence by her recent employment and other relevant factors
before us, she is not likely to become a public charge.
   The appeal is sustained. The application for temporary resident
status under section 245A of the Act is approved.
   ORDER: The appeal is sustained. The application for temporary resident status is approved.




    The applicant herself has never received public cash assistance. We need not determine, for purpose of deciding this appeal, whether the receipt of public cash assistance by a member of an applicant's family can be imputed to the applicant for
purposes of applying the special rule set forth at section 245A(dX2)(B)(iii) of the Act.

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