State Dept. Issues Memo Explaining Affidavit of Support Requirements under Child Citizenship Act

IMMIGRATION LAW & POLICY

Affidavits of Support

State Dept. issues memo explaining affidavit of support requirements under Child Citizenship Act
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

The State Dept. has issued a memo listing categories of immigrant children who, under the Child Citizenship Act of 2000 (CCA), need not file an affidavit of support. The June 16, 2001, memo follows a May 17, 2001, Immigration and Naturalization Service policy memo that also addressed affidavit of support requirements under the CCA (see "INS Issues Guidance Identifying Situations Where Affidavits of Support Are Not Required," Immigrants' Rights Update, June 29, 2001, p. 6). The State Dept. memo also lists categories of immigrants for whom the affidavit of support is still required.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established a new, enforceable affidavit of support that must be submitted by all intending immigrants applying for adjustment of status or an immigrant visa. The new affidavit of support is a contract that requires an immigrant's sponsor to support the immigrant at 125 percent of the federal poverty level. The sponsor also agrees to support the immigrant until the immigrant becomes a U.S. citizen. Since the obligation to support the immigrant terminates when the immigrant acquires U.S. citizenship, the INS and the State Dept. have made a policy decision that an affidavit of support will not be required for beneficiaries under the CCA-that is, for foreign-born children who become citizens upon immigrating to the U.S. (see "INS Issues Regulations Implementing the Child Citizenship Act," p. 5).

The State Dept. memo states that, effective immediately, an affidavit of support will not be required for the following categories of immigrants (note: "IR" is a code used to distinguish different categories of immigrant relatives. The code appears on the green card and indicates how a lawful permanent resident immigrated to the U.S. IR codes 2 through 4 refer to children processed at a consulate abroad):

an orphan classified IR-3 (IR-3 is a designation for an orphan adopted or to be adopted by a U.S. citizen), provided that the child will be admitted to the U.S. before he or she turns 18 and will reside in the U.S. with, and in the custody of, the adoptive U.S. citizen parent;
an adopted child classified IR-2 (IR-2 is a designation for a child of a U.S. citizen) who satisfies the requirements of Immigration and Nationality Act section 101(b)(1)(E) with respect to a U.S. citizen parent. The provision requires the child to live with the parents for at least two years. The child must be admitted to the U.S. while still under age 18 and must also reside in the U.S. with, and in the custody of, the adoptive U.S. citizen parent;
a child classified IR-2, provided that the child will be admitted to the U.S. while still under the age of 18 and will reside in the U.S. with, and in the custody of, the U.S. citizen parent.

The memo also states that an affidavit of support will continue to be required for all other family-based immigrants, including biological and adopted children of U.S. citizens who are not eligible for automatic naturalization upon admission as a lawful permanent resident. Specifically, an affidavit of support will continue to be required for

any immigrant classified IR-2 based on a stepparent-stepchild relationship with a U.S. citizen;
any immigrant classified IR-2 who will be age 18 or over upon admission to the U.S. as a lawful permanent resident;
any immigrant classified IR-2 who will not be residing in the U.S.;
any immigrant classified IR-2 who will not be residing with, and in the legal custody of, the U.S. citizen parent; and
any immigrant classified IR-4 (IR-4 designates an orphan adopted by a U.S. citizen whose processing may have begun abroad but needed to be completed in the U.S.).

An immigrant who is exempt from presenting an affidavit of support is nevertheless still required to demonstrate that he or she is not likely to become a public charge. Absent unusual circumstances, however, it will not be likely that the public charge ground of inadmissibility will be an issue.

Unclassified State Dept. Telegram (June 26, 2001).