State Dept. Issues Guidance on Forty Quarters and Affidavit of Support

IMMIGRATION LAW & POLICY

Affidavits of Support

State Dept. issues guidance on “40 quarters” and affidavit of support
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

Following the lead of the Immigration and Naturalization Service, the U.S. State Dept. has issued a memo clarifying that persons seeking to immigrate to the U.S. need not obtain an enforceable affidavit of support (Form I-864A) if they can show that they have been employed for forty quarters (i.e., for forty "qualifying quarters" of a year, as calculated by the Social Security Administration). Thus, the "forty quarters exemption" now applies to persons who seek to immigrate through consular processing. The INS issued the memo laying out its forty quarters exemption policy on May 17, 2001 (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 is dated Feb. 22, 2002.

The enforceable affidavit of support is required of persons who apply for a family-based immigrant visa or family-based adjustment of status on or after Dec. 19, 1997. The I-864 affidavit is also required of employment-based applicants in cases where a relative of the applicant either filed the employment-based petition on behalf of the visa applicant or has a significant ownership interest in the entity that filed the petition. The enforceable affidavit of support is a contract that requires the affiant to maintain the immigrant at 125 percent of the federal poverty level should the immigrant not be able to support him or herself. The income maintenance requirement continues until the sponsor dies, the immigrant becomes a U.S. citizen, or the immigrant obtains credit for forty qualifying quarters.

Qualifying quarters are wage units that are earned while working. The Social Security Administration calculates qualifying quarters in three-month increments. Qualifying quarters are calculated based on the amount of income that is earned. The minimum amount that may be earned per quarter is $830. However, if someone earns $2,490 (i.e., three times $830) in a monthly period, he or she will earn three quarters. Immigration practitioners should note that quarters earned while an individual is in an unlawful status may be counted towards the forty quarters threshold.

According to the State Dept. memo, all quarters worked by a parent of an immigrant while the immigrant was under 18 years of age may be credited to the immigrant child, even if the parent-child relationship did not exist when the parent worked the forty quarters. In like manner, a spouse may count quarters worked by his or her spouse during their marriage, provided that they stay married. A spouse can be given credit for his or her deceased spouse's quarters as well.

The memo also instructs that sponsored immigrants cannot be credited with any quarters during which they received any federal means-tested benefit if that benefit was received after Dec. 31, 1996. Federal means-tested benefits include Temporary Assistance for Needy Families (TANF), food stamps, Medicaid, and what the memo calls "Social Security Insurance" (most likely referring to Supplemental Security Income, or SSI) and "State Child Insurance" (most likely referring to benefits under the State Child Health Insurance Program, or SCHIP). Moreover, the memo directs consular posts to request copies of certified earnings records as well as a signed statement from the person who earned the quarters, certifying under penalty of perjury that he or she did not receive any federal means-tested benefit during any of the quarters that he or she is using to qualify that were earned after Dec. 31, 1996.

The State Dept. memo also provides examples of sponsored immigrants who would benefit under the new forty quarters policy:

An immigrant who entered the U.S. on an H-2A temporary agricultural worker visa, worked legally for five years, and later worked out of status. The individual later worked legally under the temporary protected status program and, still later, worked another two years while not being authorized to work.
A student who worked legally on an F-1 visa, and later worked as a temporary employee while under an H1B visa, and later became an intracompany transferee on an L-1 visa.

Finally, the memo reminds State Dept. officers that visa applicants who submit a valid affidavit of support or show that they have forty qualifying quarters of employment must still be evaluated as to whether they are likely to become a public charge should they be granted the visa. The memo instructs officers that, in determining whether the public charge ground of inadmissibility applies to a particular applicant, they should take into account the totality of the applicant's circumstances.