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By
Charles Wheeler
Catholic Legal Immigration Network, Inc. (CLINIC)
After almost a decade of deliberation,
internal debate, and extended delay, U.S. Citizenship and Immigration
Services (USCIS) has published a
final rule implementing the 1996 law that requires every
family-based petitioner, as well as some employment-based petitioners,
to submit a legally enforceable affidavit of support. The final rule
alters the filing procedures in significant ways. The final rule took
effect on July 21, 2006, and applies to adjustment applications pending
on that date regardless of when they were filed. The new affidavit of
support forms may be used immediately; the prior version of the
affidavit of support and related forms may continue to be used up until
Oct. 19, 2006, but practitioners are encouraged to start using the new
forms as soon as possible. (See also "Final Rule Implements 1996 Requirement That
Petitioners Submit Legally Enforceable Affidavits of Support; USCIS Also
Issues Clarifying Memo," in this issue of
Immigrants' Rights Update.)
In general, the final rule marks a major
improvement over the interim one, and the various changes work to
streamline and simplify the application process. Nevertheless, the
final rule is much longer and detailed than the one it replaces, and
very little of the latter remains intact.
The final rule formally incorporates many
policy decisions that have taken place since the interim rule was first
published eight and a half years ago. These relate to exemptions from
the filing requirement based on qualifying quarters or the Child
Citizenship Act of 2000, number and type of supporting documents that
must accompany the affidavit, weight given to current income versus that
reported on prior tax returns, and how domicile is defined. The final
rule also makes some fundamental changes in the computation of household
size and income, the number of allowable joint sponsors, and the formula
for counting assets in lieu of income. USCIS has completely reworked
Form I-864,
Affidavit of Support Under Section 213A of the Act, and
Form I-864A,
Contract Between Sponsor and Household Member. In addition, it has
created two new forms:
Form I-864EZ,
EZ Affidavit of Support Under Section 213A of the Act, and
Form I-864W,
Intending Immigrant's Affidavit of Support Exemption. This article will
summarize all of these changes by comparing the final rule and new forms
with their predecessors.
Exemptions
Old rule. On May 17, 2001, the
Immigration and Naturalization Service (INS) issued two policy memos
exempting intending immigrants from the affidavit of support
requirements if the affidavit would terminate upon the non-U.S.
citizen's obtaining lawful permanent resident (LPR) status. The U.S.
Dept. of State (DOS) adopted those changes through parallel memos and
new sections to the Foreign Affairs Manual (FAM). One of those
situations is when the intending immigrant has earned or can be credited
with 40 qualifying quarters of Social Security coverage. A worker may
earn up to four quarters in covered employment each year, but can be
credited with all the quarters of the spouse, earned during marriage.
Similarly, if the intending immigrant is a child, he or she may be
credited with all the quarters earned by either or both parents prior to
the child's turning 18. For those reasons, many spouses and children
did not have to file affidavits of support and accompanying tax forms.
Instead, they could simply submit Social Security earnings records
verifying 40 quarters of coverage and a statement indicating that the
worker had not obtained a means-tested benefit program after Dec. 31,
1997, for a period when he or she was using qualifying quarters.
The other exemption relates to the Child
Citizenship Act of 2000 (CCA), which provides that LPR children (other
than stepchildren) under 18 derive U.S. citizenship automatically if
they reside in the legal and physical custody of at least one U.S.
citizen parent. Since the affidavit of support requirements terminate
upon the non-U.S. citizen's becoming a U.S. citizen, and this happens in
most cases simultaneously upon their obtaining LPR status, it is
unnecessary for the intending immigrant to submit an affidavit of
support. These children were allowed, at least in theory, to submit a
statement from the citizen parent verifying eligibility for the
exemption in lieu of an affidavit of support.
These policies, however, were never fully
implemented, and the memos were largely ignored. The National Benefits
Center (NBC) and the National Visa Center (NVC) routinely rejected
Social Security earnings records submitted in lieu of affidavits of
support, even when the applicant included a copy of the INS policy memo
or FAM section specifically allowing such submission. The U.S.
consulate in Ciudad Juarez even took the overly restrictive position
that under the 40 quarters exemption, the petitioner still had to
satisfy the 125 percent-of-poverty income requirements, as evidenced by
tax submissions and employer letters, which obviated most of the benefit
of submitting Social Security earnings records.
New rule. The final rule
incorporates these policy changes and creates a special form for
claiming the exemptions. It is now even more official that an affidavit
of support is not required if the intending immigrant satisfies either
the 40 quarters or CCA exemption requirements; the applicant instead
submits Form I-864W, Intending Immigrant's Affidavit of Support
Exemption. This should make it much easier for applicants to claim one
of the exemptions, given that the NBC, NVC, and the consulates will now
be required to accept the new form.
If the applicant is claiming the Social
Security earnings exemption, he or she completes the I-864W and checks
the first box. The applicant must still attach relevant Social Security
earnings statements. But this marks an improvement from having to
submit "certified" earnings records. By signing the form, the applicant
authorizes the Social Security Administration to release any information
concerning the applicant to USCIS or DOS. If the applicant is claiming
the exemption based on the CCA, check the second box on the I-864W.
There is no requirement to submit documentary poof of eligibility under
the CCA. Orphans whose adoptions will not be legally finalized until
after admission to the U.S. do not qualify for this exemption.
Widows/widowers and battered spouses/children
filing as self-petitioners under the Violence Against Women Act (VAWA)
are also exempt from the affidavit of support rules. Under prior
practice, these persons simply didn't include an affidavit of support
when applying for adjustment of status or consular processing based on
an approved Form I-360. Now they must submit a Form I‑864W and check
either the third box (widow/widower) or the fourth one (VAWA
self-petitioner).
Household Size
Old rule. In determining
household size, the sponsor was required to count the following persons,
in addition to him/herself: the intending immigrant; all derivatives of
the intending immigrant who are obtaining LPR status at the same time or
within six months; all dependents claimed on the sponsor's most recent
tax return, regardless of where they reside; all noncitizens on whose
behalf the sponsor had previously filed a Form I-864; and "all persons
living at the same residence with the sponsor who are related to the
sponsor by birth, marriage, or adoption." This last category was
defined broadly to include all extended family members, regardless of
how distant the relationship and how self-sufficient they were.
New rule. USCIS has eliminated
the old definition of "household size" and replaced it with one that
provides more flexibility and clarity. The sponsor must now include, in
addition to him/herself, only the following persons, regardless of where
they reside: the sponsor's spouse; the sponsor's children under the age
of 21, provided they are not emancipated; the intending immigrant; all
derivatives of the intending immigrant who are obtaining LPR status at
the same time or within six months; all dependents claimed on the
sponsor's most recent tax return; and all noncitizens on whose behalf
the sponsor has previously filed an I‑864. Do not include the intending
immigrant's spouse or child when calculating household size if they have
already obtained LPR or citizenship status, unless they are also
dependents of the sponsor. In addition, the sponsor may include other
"relatives" residing with the sponsor if it is advantageous to include
their income, as explained below. The term "relative" is still defined
to include only the sponsor's spouse, child, adult son/daughter, parent,
or sibling.
The effect of this regulatory change will be
to reduce the household size — and thus the amount of necessary
household income — for sponsors living with extended family members.
Sponsors will no longer be required to count, for example, their
parents, grandparents, siblings, aunts and uncles, nephews and nieces,
or in-laws. The rule specifies exactly who must be counted and
clarifies that no household member should be counted more than once.
Household Income
Old rule. In calculating the
total household income, sponsors were able to include their income, the
income of any dependents claimed on the last tax return, and the income
of any person related by birth, marriage, or adoption, provided the
person had been residing with the sponsor for the last six months. This
could include the income of the intending immigrant.
New rule. Based on the change
in how household size is determined, sponsors may now include, in
addition to their income, the income of the following persons: their
spouse; their children; the intending immigrant; and any dependents
claimed on the last tax return. The sponsor may also include the income
of any "relative" included in the household size determination.
In order to count their income, the sponsor's
parent, sibling, or child/son/daughter must currently be residing with
the sponsor. The sponsor's spouse must also be residing with the
sponsor, unless the spouse is an intending immigrant. However, none of
these household members need to have been residing with the sponsor for
the last six months. It is enough if their principal residence is
currently the same as the sponsor's.
In order to count the income of any of these
household members, the person must be at least 18 years old and, except
for the intending immigrant, execute a Form I-864A, Contract Between
Sponsor and Household Member. If the household member is not the
intending immigrant but is the sponsor's parent, sibling or son/daughter
(other than a claimed dependent), he or she must submit proof of that
relationship and current residence with the sponsor. The sponsor's
spouse and claimed dependents do not need to submit proof of residence
or relationship.
These household members do not have to be
U.S. citizens, nationals, or LPRs. Nor is there any specific
requirement that they be residing in the U.S. with lawful immigration
status, even though USCIS may impose such a requirement. The I-864A
only requires that the household member provide a Social Security number
if he or she has one. They must, however, provide the prior year's tax
return.
The final regulation clarifies that the
intending immigrant does not need to execute an I-864A unless he or she
has a derivative spouse or child who will be immigrating "with the
intending immigrant." In that situation, the intending immigrant needs
to execute an I-864A to ensure that his or her income may be relied upon
to support the derivative family member(s). Any intending immigrant,
other than the sponsor's spouse or claimed dependent, who executes an
I-864A must submit proof of residence with the sponsor. If the
intending immigrant is the sponsor's spouse, he or she does not need to
be residing with the sponsor, regardless of whether he or she executed
an I-864A.
To count the intending immigrant's income, he
or she must either be residing with the sponsor or be the sponsor's
spouse or claimed dependent. But in all situations the intending
immigrant's income must be derived from "lawful employment in the United
States or from some other lawful source that will continue to be
available to the intending immigrant after he or she acquires permanent
resident status." If you were hoping the agency would define the term
"lawful employment" narrowly so that it merely excluded "unlawful" acts
— such as theft, gambling, or drug trafficking — then think again. The
latest USCIS memo clarifies that it means "authorized employment," or
employment performed while the worker had an employment authorization
document.
This means that most intending immigrants who
are residing abroad will be precluded from counting their income as part
of the sponsor's total household income, since they will likely be
changing employment once they immigrate. The final regulation specifies
that offers of employment will not be sufficient to meet the intending
immigrant's burden of showing continuing employment. This is perhaps
the most controversial provision in the final regulations.
Proof of Income
Old rule. The sponsor must
satisfy the income requirement (either 100 or 125 percent of poverty)
through income reported on the last tax return. In a 1998 policy memo,
the DOS stated that if the prior year's income as reported on the tax
return was too low, the sponsor could satisfy the income requirements
with current income, provided it was sustainable and would meet or
exceed the minimum income level. In that case, the sponsor could list
current income in Part 4C of the old I-864, but the person had to alter
the form by creating a separate column. Most applicants and
practitioners — as well as most adjudicators — were unaware that this
tactic could be used.
New rule. One of the most
significant changes with the final rule is the emphasis now placed on
current income versus that reported on prior tax returns. The
step-by-step instructions to the I-864 explain that the sponsor is to
enter his or her "current individual earned or retirement annual
income." In most cases, this will be "expected income for the current
year." If the sponsor will be relying on the income of the intending
immigrant or other household members, it is their current income that
will be listed on the I-864 and I-864A. The final rule stresses that it
is this "reasonably expected household income" that shall be given the
"greatest evidentiary weight." Tax returns or other documentation will
serve merely to evidence the likelihood that the sponsor will be able to
maintain this income in the future.
The sponsor does not have to be employed.
The I-864 requires the sponsor to state whether he or she is employed,
self-employed, retired, or unemployed. Income could come from any
source, including pensions, interest income and dividends, alimony, or
child support.
Question 25 on the I-864 requires the sponsor
to check a box indicating that he or she has either (1) filed a tax
return for each of the three most recent tax years and is attaching a
photocopy or transcript of the most recent return, or (2) is voluntarily
attaching photocopies of the tax returns for the second and third most
recent tax years. This now reflects the latest policy memos from USCIS
and DOS that reduced the proof of tax filings to the most recent year
rather than the last three years. Regrettably, there is no comparable
box to check if the sponsor did not have a tax liability for any of
those three years. If the reason is due to insufficient income, the
instructions tell the sponsor to "attach a written explanation," so
presumably he or she would still qualify to check the first box.
If the sponsor is exempt from tax filing due
to some other reason, he or she must "attach a written explanation
including evidence of the exemption and how [he or she is] subject to
it." The sponsor in that case may still submit other evidence of annual
income. The sponsor or household member must establish by a
preponderance of the evidence that he or she had no duty to file the tax
return. Being exempt from the income tax filing requirement does not
exempt the sponsor from the affidavit of support filing requirement.
The sponsor must list on the I-864 the total
income for the last three tax years as reported on those tax returns,
since they will be used as an indication of the sponsor's ability to
maintain that income over time. If estimated current annual income
appears significantly higher than past reported income, or if the income
varies widely from year to year, it will likely raise suspicions with an
adjudicator. In those cases, expect the USCIS or consular official to
request additional proof, such as pay stubs or an employer's letter.
Otherwise, those employment records are no longer required to be
submitted with the affidavit of support.
The instructions also specify which line from
the tax return should be used when reporting "total" income — either
gross or adjusted gross — and explain that it is only the federal tax
return that must be submitted. The sponsor or household member should
not submit a state or foreign income tax return unless the person had no
federal tax liability and wants to use the return to verify current
income. The sponsor may submit either a plain (uncertified) IRS
transcript or a photocopy of the tax return from his or her own
records. Include the W-2, Form 1099, and all other attachments and
schedules that were submitted with the federal return.
The sponsor may not count any means-tested
benefits (food stamps, Supplementary Security Income, Medicaid,
Temporary Assistance to Needy Families, or State Child Health Insurance
Program) as income, but he or she may include retirement benefits,
unemployment compensation, workman's compensation, or other similar
benefits. Earlier policy memos explained that sponsors are able to
include both taxable and nontaxable income, such as disability and child
support payments, as part of the total household income. Until USCIS or
DOS issues further guidance, proceed as if those interpretations are
still in effect.
Every sponsor who executes an I-864 and every
household member who executes an I-864A must submit a copy of their most
recent tax return. Many intending immigrants, however, do not need to
submit an I-864A. It does not appear that the sponsor has to submit the
tax return of the intending immigrant if his or her income is being
included and he or she did not execute an I-864A. In those cases, the
sponsor simply includes the intending immigrant's income in section 24b
of the I-864 as part of total household income. But given that the
intending immigrant must either be the sponsor's spouse or be residing
with the sponsor, in most situations the intending immigrant either will
have filed a joint tax return or be listed as a dependent on the
sponsor's return. Bear in mind that the intending immigrant must still
submit proof that the "lawful" employment will continue from the same
source after he or she obtains LPR status.
What happens when the affidavit of support
isn't examined for sufficiency until months or even years after it was
submitted? The new rule clarifies that the adjudicating official must
consider the sufficiency of the affidavit of support based on the income
reported for the year the I-864 or I-864A was submitted, not on the
sponsor's income on the date the application for adjustment of status or
an immigrant visa is adjudicated. Similarly, adjudicators must use the
federal poverty income guidelines in effect at the time the affidavit of
support is submitted, not at the time it is considered for sufficiency.
For that reason, all sponsors must submit Form I-864P, Poverty
Guidelines, with the affidavit of support. In the event that more than
one year has passed from the date of submission to the date of
adjudication, USCIS or DOS officials may, in the exercise of discretion,
request additional evidence, such as income tax returns for the most
recent tax year. In those cases, it will be the sponsor's income and
poverty income guidelines in effect for the year the adjustment or
immigrant visa application is adjudicated that will control, not for the
year the affidavit of support was originally submitted.
The INS stated in a 2000 policy memo that the
affidavit of support must be legally sufficient at the time the
adjustment of status application was approved, not at the time the
affidavit was filed. That policy allowed adjustment applicants to
submit an affidavit of support showing income below the required level,
provided they supplemented it at the adjustment interview showing proof
of sufficient income. USCIS has recently reversed its position on this
issue and has now determined that the affidavit must be sufficient both
at the time of filing and at the time the adjustment application is
adjudicated. The NBC already has been following that procedure when it
vets the affidavit of support as part of the process of preparing the
adjustment application for adjudication. Beginning Nov. 23, 2005, all
adjustment applications have to be filed centrally and must include the
I-864.
Joint Sponsors
Old rule. If the sponsor's
income is too low to satisfy the financial requirements, he or she may
obtain the assistance of a joint sponsor who does have sufficient
income. The joint sponsor must count as part of his or her household
the intending immigrant and all accompanying derivatives. Under the old
rule, multiple joint sponsors were allowed in theory, but they served
little purpose, since they could not pool their income; each joint
sponsor would be severally and jointly liable for maintaining the
sponsored immigrant and each accompanying derivative. Multiple joint
sponsors were usually used only if the petitioner had submitted a
separate Form I-130, Petition for Alien Relative Petition, for each
family member (e.g., petitioner's mother and father), or if the
derivatives were to follow to join the principal beneficiary (i.e.,
immigrate or adjust more than six months later).
New rule. Each intending
immigrant — whether a principal beneficiary or derivative — may have
only one joint sponsor. But in family-based preference category cases
comprised of a principal beneficiary and at least one accompanying
derivative, the sponsor may use up to two joint sponsors. The sponsor
may apportion the financial burden between the two joint sponsors, so
that, for example, one joint sponsor bears responsibility for the
principal beneficiary and the second joint sponsor bears responsibility
for the derivative. In that situation, the first joint sponsor would
include the principal beneficiary as a household member and would bear
the financial responsibility for that person, while the second joint
sponsor would include the derivative. Each joint sponsor would identify
on the I-864 the intending immigrant(s) that he or she is sponsoring.
Assets
Old rule. If the sponsor's
income is too low to satisfy the financial requirements, he or she may
count any assets that can be converted into cash within one year. The
value of these assets must be at least five times the shortfall between
the sponsor's income and required amount.
New rule. If the sponsor is a
U.S. citizen and the intending immigrant is the sponsor's spouse or
child over 18, the value of these assets must be at least three times
the shortfall between the sponsor's income and required amount. If the
intending immigrant is an orphan to be formally adopted in the U.S., the
value of the assets must equal only the shortfall between the sponsor's
income and required amount. In all other situations, the assets must
still be at least five times the shortfall.
New Forms
Forms I-864 and I-864A have had an almost
total makeover and as a result are more user-friendly. The instructions
have been moved to the beginning of the forms and are far more
detailed. The Form I-864 has nearly doubled from 10 to 19 pages, with
more than half of them devoted to instructions and explanations. The
sponsor or household member filling out the new forms will be less
likely to err, since most of the questions require the person simply to
check appropriate boxes and fill in basic information.
Form I-864EZ is to be used by I-130
petitioners who are sponsoring only one beneficiary and whose income
alone is adequate to satisfy the financial requirements. It is not to
be used by relatives in employment-based cases, by joint sponsors, or by
a sponsor who will rely on assets or income from other household
members. The form is shorter because it excludes sections of the I‑864
that relate to household members' income and assets. As explained
above, Form I-864W is to be used whenever a sponsor is claiming an
exemption (e.g., 40 quarters or CCA) from the filing requirements.
Other Changes
In addition to the above, the final rule
incorporates other recent policy memos or implements the following
changes:
• The I-864, I-864EZ, and I-864A do not have
to be signed in front of a notary or consular official. The sponsor or
household member merely swears under penalty of perjury that the
information provided is correct.
• The sponsor's or household member's
contractual obligations under the affidavit of support do not begin
until and unless the intending immigrant obtains LPR status. It is not
binding upon execution and submission. Therefore, the sponsor or
household member may withdraw the affidavit at any point up to the time
the intending immigrant is granted LPR status based on the submission of
the affidavit of support.
• Domicile is defined as the sponsor's
"principal" residence. LPRs residing abroad temporarily are considered
domiciled in the U.S. if they meet the requirements of INA sections
316(b) and 317 and file Form N-470 to preserve their residence. U.S.
citizens residing abroad temporarily are considered domiciled in the
U.S. if their employment abroad meets the requirements of INA section
319(b)(1). Sponsors who are domiciled abroad may nevertheless submit an
affidavit of support if they convince the USCIS or consular official
that they will reestablish domicile in the U.S. on or before the date
the intending immigrant obtains LPR status. Sponsors who are U.S.
citizens and who are accompanying the intending immigrant to the port of
entry will be deemed to have established domicile in the U.S.; sponsors
who are LPRs will similarly be deemed, unless the LPR is denied
admission to the country.
• All derivative beneficiaries who will
accompany the principal beneficiary (i.e., immigrate at the same time or
within six months) must be included on the I‑864. Each principal and
derivative beneficiary must have a separate affidavit of support filed
in his or her case, but accompanying derivatives may submit a photocopy
of the one submitted for the principal. They do not need to submit a
photocopy of the supporting documentation. The photocopy of the I-864
does not need to contain an original signature. Each principal
beneficiary (e.g., petitioner's mother and father) must submit a
separate affidavit of support bearing an original signature.
• Affidavits of support are also required
when a relative of the intending immigrant filed an employment-based
immigrant petition, or the relative has a significant ownership interest
(defined as five percent) in the entity that filed the petition. But
this only applies if the relative is a U.S. citizen or LPR.
Furthermore, if the relative is an LPR and a sibling of the intending
immigrant, he or she is not required to submit an affidavit of support.
• Children born after an intending immigrant
is granted an immigrant visa but before the noncitizen parent is
admitted to the U.S., and who accompany that parent to the U.S., may be
admitted without having a separate immigrant visa. The same is true for
children born abroad during the temporary visit of an LPR mother under
certain circumstances. These children do not need to have an affidavit
of support submitted on their behalf.
• Consular and USCIS officials may still
reject an affidavit of support whose projected income meets the
financial requirements, but only if, based on specific facts, it is
"reasonable to infer that the sponsor will not be able to maintain his
or her household income" at the necessary level. In addition, even when
the affidavit of support is found to be sufficient, the intending
immigrant may be found inadmissible under INA § 212(a)(4) as likely to
become a public charge if "specific facts" support such a "reasonable
inference."
• Immigration judges have the formal
authority to determine the legal sufficiency of the affidavit of support
when adjudicating adjustment of status applications.
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