INS Issues Guidance Identifying Situations Where Affidavits of Support Are Not Required

IMMIGRATION LAW & POLICY

Affidavits of Support

INS ISSUES GUIDANCE IDENTIFYING SITUATIONS WHERE AFFIDAVITS OF SUPPORT ARE NOT REQUIRED
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

Two new policy memos issued by Michael Cronin, the INS acting executive associate commissioner, clarify that the enforceable affidavit of support (Form I-864) is not required for immigrants who have already acquired "forty quarters" of work credit and for immigrants who upon obtaining lawful permanent residence status will automatically become U.S. citizens under the Child Citizenship Act of 2000.

The enforceable affidavit of support is required for family-based immigrants, who apply for an immigrant visa or adjustment of status on or after Dec. 19, 1997. The I-864 form is also required in employment-based cases where a relative of the immigrant either filed the employment-based immigrant petition or has a significant ownership interest in the entity that filed the petition. The enforceable affidavit of support is a contract that requires a sponsor to maintain the immigrant at 125 percent of the federal poverty level. The income maintenance requirement continues until the sponsor dies, the immigrant becomes a citizen, or the immigrant obtains credit for forty qualifying quarters.

Forty qualifying quarters. The first of the two Cronin policy memos, both of which were issued May 17, 2001, states that if at the time an immigrant seeks lawful permanent resident status he or she can be credited with forty qualifying quarters of coverage, the immigrant is not required to file an affidavit of support. Since the obligations of the enforceable affidavit of support terminate when the immigrant has credit for forty quarters, no purpose would be served by requiring the form for immigrants who already meet this requirement.

A qualifying quarter is a unit of wages. Individuals who earn more than a minimum amount in a calendar year (the amount varies depending on the year) are credited with four quarters. Individuals also receive credit for quarters in which a spouse worked. The memo notes that an immigrant can receive this credit only if the spouse was married to the immigrant at the time the work was performed. To qualify for the spouse's forty quarters, the immigrant must remain married to the person who worked the qualifying quarters or show that the person who worked the quarters has died. An immigrant also receives credit for quarters in which a parent worked, if the immigrant was under 18 years of age at the time the work was performed. The statute does not require that the parent-child relationship exist when the parent works the qualifying quarters. Thus an immigrant who is adopted can claim quarters that the parent worked even before the child's birth or adoption.

The memo also notes that for quarters earned by a spouse or parent after Dec. 31, 1996, to be credited to the sponsored immigrant, neither the sponsored immigrant, the spouse, or parent could have received federal means-tested public benefits during that time period.

The Child Citizenship Act. Under the Child Citizenship Act of 2000 (CCA), foreign-born children of U.S. citizens, including adopted children and children of a parent who naturalizes, automatically acquire U.S. citizenship on the date they are admitted to the U.S. as lawful permanent residents. The second Cronin memo states that an affidavit of support is not required if, at the time an immigrant child seeks permanent residence through admission or adjustment of status, the immigrant can show that his or her admission will automatically confer citizenship under the CCA. Since the obligations of the affidavit of support terminate upon the immigrant's acquisition of citizenship, no purpose would be served by requiring the form for immigrants who will immediately and automatically become U.S. citizens.

The CCA provides that a child born outside the U.S. automatically becomes a citizen of the U.S. when all of the following conditions are fulfilled: (1) at least one parent of the child is a citizen of the U.S. whether by birth or naturalization; (2) the child is under 18 years of age; and (3) the child is residing in the U.S. in the legal and physical custody of the U.S. citizen parent pursuant to a lawful admission for permanent residence. The INS takes the position that the CCA applies only to individuals who meet each of the three requirements on or after Feb. 27, 2001, the effective date of the statute.

An immigrant orphan may be adopted either before or after the child's admission for permanent residence. If an orphan is adopted before he or she immigrates, the orphan will be in the legal and physical custody of the U.S. citizen parent at the time of admission. Since the admission will satisfy the last requirement of the CCA, the orphan will become a citizen when admitted and no affidavit of support will be required.

If the citizen parent is bringing the immigrant orphan to the U.S. to be adopted, the legal parent-child relationship will not exist at the time of admission. The orphan will not acquire citizenship until adoption establishes the legal parent-child relationship. Thus, the memo directs that an affidavit of support be filed in that case.

The new policy also applies to children adopted abroad who are not orphans as defined in INA section 101(b)(1)(F) but who meet the definition of "child" in INA section 101(b)(1)(E) and are in the physical and legal custody of the adoptive parents. (INA section 101(b)(1)(F) refers to a child under the age of sixteen who is an orphan because of the death, disappearance, abandonment, separation, or loss from both parents or because the child's sole surviving parent is incapable of providing proper care and irrevocably released the child in writing for emigration and adoption by a U.S. citizen; section 101(b)(1)(E) refers to a child adopted while under the age of sixteen if the child has been in legal custody of and has resided with the adopting parent for at least two years.) If such a child's family is returning to live in the U.S. and the child is admitted as a lawful permanent resident, the child will automatically acquire U.S. citizenship upon admission. Therefore, adopted children as defined in INA section 101 (b)(1)(E) immigrating to the U.S. who otherwise fulfill the requirements of the CCA will also not be required to submit an I-864.

According to the memo, even if the immigrant will acquire U.S. citizenship under the CCA, an immigrant child seeking admission or adjustment of status as a lawful permanent resident must still show that he or she is not likely at any time to become a public charge. The memo states that the likely acquisition of citizenship must be weighed along with the traditional factors such as age, health, skills, and finances. In most cases, the public charge test will be easily overcome in light of the likely acquisition of citizenship in the near future.

INS Memos HQPGM 70/21 (40 quarters) and HQPGM 50/10 (CCA) (May 17, 2001).