Affidavit of Support on Behalf of Immigrants

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 213a

[CIS No. 2655-20; DHS Docket No. USCIS-2019-0023]

RIN 1615-AC39

Affidavit of Support on Behalf of Immigrants

AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security (DHS).

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The U.S. Department of Homeland Security (DHS) proposes to amend its regulations governing the affidavit of support requirements under section 213A of the Immigration and Nationality Act (INA or the Act). Certain immigrants are required to submit an Affidavit of Support Under Section 213A of the INA (Affidavit) executed by a sponsor who agrees to provide financial support to the sponsored immigrant and accepts liability for reimbursing the costs of any means-tested public benefits a sponsored immigrant receives while the Affidavit is in effect pursuant to section 213A(a)(2) of the INA. DHS proposes to clarify how a sponsor demonstrates the means to maintain income as required under section 213A(f)(6) of the Act such as revising the documentation that sponsors and household members must submit to meet the requirements under section 213A(f) of the Act. DHS proposes to modify when an applicant is required to submit an Affidavit from a joint sponsor, who may be a household member for purposes of executing a Contract Between Sponsor and Household Member (Contract), and who is considered as part of a sponsor's household size. DHS also proposes to update reporting and information sharing requirements between authorized parties and USCIS.

DATES:

Written comments must be submitted on this proposed rulemaking on or before November 2, 2020. Comments on the collection of information (see Paperwork Reduction Act section) must be received on or before December 1, 2020. Comments on both the proposed rulemaking and the collection of information received on or before November 2, 2020 will be considered by DHS and USCIS. Only comments on the collection of information received between November 2, 2020 and December 1, 2020 will be considered by DHS and USCIS.

Note:

Comments received after November 2, 2020 on the proposed rulemaking rather than those specific to the collection of information will not be considered by DHS and USCIS.

ADDRESSES:

You may submit comments on the entirety of this proposed rule package, identified by DHS Docket No. USCIS-2019-0023, through the

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the website instructions for submitting comments.

Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and USCIS cannot accept any comments that are hand delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. Due to COVID-19, USCIS is also not accepting mailed comments at this time. If you cannot submit your comment by using

http://www.regulations.gov,

please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at 202-272-8377 for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

Mark Phillips, Residence and Naturalization Chief, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, DHS, 20 Massachusetts NW, Washington, DC 20529-2140; telephone 202-272-8377.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

B. Summary of Legal Authority

C. Costs and Benefits

III. Background and Purpose

A. Statutory Authority

B. Prior Rulemaking

C. Current Processing of an Affidavit of Support Under Section 213A of the INA

D. Reimbursement Process

E. Information Sharing

F. Problems Arising From Current Processes

IV. Discussion of Proposed Rule

A. Requiring Joint Sponsors in Certain Circumstances

B. Changes to “Household Income” Definition

C. Changes to “Household Size”

D. Revised Evidentiary Requirements

E. Bank Account Information

F. Address Change Requirements

G. Information Sharing Provisions

H. Revised Definitions

I. Clarifying Affidavit Requirements for Certain Children of U.S. Citizens Acquiring U.S. Citizenship

J. Miscellaneous Other Changes

K. Transition Period

V. Statutory and Regulatory Requirements

A. Executive Orders: 12866 and 13563

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Congressional Review Act

E. Unfunded Mandates Reform Act of 1995

F. Executive Order 13132: Federalism

G. Executive Order 12988: Civil Justice Reform

H. Paperwork Reduction Act

I. Family Assessment

J. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

K. National Environmental Policy Act (NEPA)

L. National Technology Transfer and Advancement Act

M. Signature

Table of Abbreviations

DHS—Department of Homeland Security

DOJ—Department of Justice

DOS—Department of State

EOIR—Executive Office for Immigration Review

FCRA—Fair Credit Reporting Act

HHS—Department of Health and Human Services

INA—Immigration and Nationality Act

INS—Immigration and Naturalization Service

USCIS—U.S. Citizenship and Immigration Services

I. Public Participation

DHS invites all interested parties to participate in this rulemaking process by submitting written data, views, comments, and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to USCIS in implementing these changes will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions:

If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2019-0023 for this rulemaking. Regardless of the method used for submitting comments or materials, all submissions will be posted, without change, to the Federal eRulemaking Portal at

http://www.regulations.gov,

and will include any personal information you provide. Therefore, submitting this information makes it

public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at

http://www.regulations.gov.

Docket:

For access to the docket and to read background documents or comments received, go to

http://www.regulations.gov,

referencing DHS Docket No. USCIS-2019-0023. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

DHS is proposing to amend its regulations related to the Affidavit of Support Under Section 213A of the INA (Affidavit). The proposed rule changes certain requirements for the Affidavit and is intended to better ensure that all sponsors, as well as household members who execute a Contract Between Sponsor and Household Member (Contract), have the means to maintain income at the applicable income threshold and are capable of meeting their support obligations under section 213A of the INA, 8 U.S.C. 1183a, during the period in which the Affidavit or the Contract is enforceable. This proposed rule is also aimed at strengthening the enforcement mechanism for the Affidavit so that sponsors and household members who agree to use their income and assets to support the sponsored immigrant are held accountable if the sponsored immigrant ultimately receives means-tested public benefits during the period in which the Affidavit or the Contract is enforceable.

First, this proposed rule would update the evidentiary requirements for sponsors submitting an Affidavit, which will better enable immigration officers and immigration judges to determine whether the sponsor has the means to maintain an annual income at or above the applicable threshold, and whether the sponsor can, in fact, provide such support to the intending immigrant and meet all support obligations during the period the Affidavit is in effect. Specifically, this proposed rule would require sponsors and household members who execute an Affidavit or Contract to provide Federal income tax returns for 3 years, credit reports, credit scores, and bank account information.

Second, this proposed rule would also amend the regulations to specify that a sponsor's prior receipt of any means-tested public benefits and a sponsor's failure to meet support obligations on another executed Affidavit, or household member obligations on a previously executed Contract, will impact the determination as to whether the sponsor has the means to maintain the required income threshold to support the immigrant. Receipt of means-tested public benefits by a sponsor may indicate that the sponsor does not have the financial means to maintain an annual income equal to at least 125 percent of the Federal poverty line,

1

or 100 percent of the Federal poverty line for an individual who is on active duty (other than active duty for training) in the Armed Forces of the United States and who is petitioning for his or her spouse or child,

2

and is relevant to determining whether the sponsor can, in fact, provide such support to the intending immigrant during the period of enforceability. Similarly, whether a sponsor has previously failed to fulfill his or her support obligations is relevant to determining whether the sponsor will meet future support obligations. Specifically, this proposed rule would require an applicant submitting an application for an immigrant visa or adjustment of status on or after the effective date of this rule to submit a Form I-864 executed by a joint sponsor if a petitioning sponsor or substitute sponsor received any means-tested public benefits on or after the effective date of this rule and within the 36-month period prior to executing the Affidavit, or if the petitioning sponsor or substitute sponsor had a judgment entered against him or her at any time for failing to meet any prior sponsorship or household member obligation. Furthermore, this proposed rule would only allow an individual to be a joint sponsor if he or she has neither received means-tested public benefits on or after the effective date of this rule and within the 36 month period prior to executing the Affidavit, nor had a judgment entered against him or her at any time for failing to meet a prior sponsorship or household member obligation.

1

See

INA section 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E).

2

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

Third, this proposed rule would revise the current regulatory requirements concerning who can qualify as a household member for purposes of submitting and executing a Form I-864A. Currently, there is no limitation on the number of household members who may execute a Form I-864A. DHS intends to permit only a sponsor's spouse or an intending immigrant with the same principal residence (same principal residence upon immigrating, in the case of an intending immigrant consular processing) as the sponsor to execute Form I-864A, which will better ensure that the income a household member promises to make available to support the intending immigrant is actually available.

Fourth, this proposed rule would update and improve how means-tested public benefit-granting agencies obtain information from USCIS and how they can provide information to USCIS. The current regulations require a duly issued subpoena before USCIS can provide a certified copy of the Form I-864 or Form I-864EZ for use in any action to enforce the support obligation.

3

The proposed rule would eliminate the requirement of a duly issued subpoena before USCIS will provide a certified copy of Form I-864 or Form I-864EZ to a requesting party and instead allow requesting parties to submit a formal request for an Affidavit or a Contract to USCIS. A requestor will submit a formal request using a new form created by DHS, G-1563, Request for Certified Copy of Affidavit of Support Under Section 213A of the INA or Contract Between Sponsor and Household Member. DHS also proposes to revise the process for informing USCIS about judgments obtained against sponsors and indigency determinations to give USCIS flexibility to determine a more efficient mechanism for information reporting. The current regulations require that copies of judgments and indigency determinations must be mailed to a specific USCIS office in Washington, DC

4

The proposed rule would remove the address specified in the regulation

5

and permit USCIS to provide a different mechanism for submitting copies of judgments and indigency determinations.

3

See

8 CFR 213a.4(a)(3).

4

See

8 CFR 213a.4(c).

5

See

8 CFR 213a.4(c)(3).

Fifth, DHS proposes to update the regulation to clarify which categories of aliens are exempt from the Affidavit requirement, and to add and revise definitions to provide greater clarity and to conform to statutory changes made since the current regulation was adopted in 2006.

Sixth, DHS proposes to update the regulation by clarifying that the notification of change of address

requirement under section 213A(d) of the Act, 8 U.S.C. 1183a(d) also applies to household members who execute a Contract in addition to sponsors. This change allows DHS to provide current household member information to means-tested benefit granting agencies and appropriate entities in accordance with section 213A of the Act, 8 U.S.C. 1183a(a), and creates parity between the requirements of sponsors and household members.

Last, DHS proposes other minor revisions to the regulations to update definitions, eliminate form numbers, and revise outdated terminology. DHS proposes to replace the term “affidavit of support attachment” with “Contract Between Sponsor and Household Member”, which is the name of the relevant form (Form I-864A), throughout the regulation. DHS also proposes to clarify that, for purposes of an Affidavit and a Contract, assets used to meet the required threshold must be those that can be readily converted to cash.

DHS is also proposing corresponding changes to the Form I-864, Affidavit of Support Under Section 213A of the Act, Form I-864 EZ, Affidavit of Support Under Section 213A of the Act, and Form I-864A, Contract Between Sponsor and Household Member. Simultaneously, DHS is proposing to eliminate the use and consideration of the Request for Exemption for Intending Immigrant's Affidavit of Support, Form I-864W, currently applicable to certain classes of aliens.

B. Summary of Legal Authority

The Secretary of Homeland Security's authority for the proposed regulatory amendments is found in section 213A of the Act, 8 U.S.C. 1183a, which governs Affidavits, and section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), which governs public charge inadmissibility, including which aliens are required to execute an Affidavit. In addition, section 103(a)(3) of the Act, 8 U.S.C. 1103(a)(3), authorizes the Secretary to establish such regulations as he deems necessary for carrying out his authority under the INA.

C. Costs and Benefits

The proposed rule would impose new net costs on the population of sponsors executing an Affidavit using Form I-864 or Form I-864EZ, as well as on the population of household members who execute a Contract using Form I-864A so that a sponsor can use the household member's income and/or assets to demonstrate means to maintain income. Additionally, the proposed rule would impose new net costs on the population executing Form I-864A as a household member who would now be required to submit Form I-865 to provide notice of a change of address after moving. Moreover, the proposed rule would produce some cost savings for immigrants applying for adjustment of status who would have needed to request an exemption from filing an Affidavit as DHS is proposing to eliminate Form I-864W for use when filing Form I-485. Instead, individuals would be required to provide the information previously requested on Form I-864W when filing Form I-485. DHS has determined that the information an applicant provides on Form I-485 would be sufficient for an adjudications officer to be able to verify whether an immigrant is statutorily required to file an Affidavit.

This proposed rule also would impose new costs on those from a party or entity authorized to bring an action to enforce an Affidavit or Contract making a formal request using the proposed new Form G-1563, Request for Certified Copy of Affidavit of Support Under Section 213A of the INA or Contract Between Sponsor and Household Member, so that USCIS may provide a certified copy of the requested Affidavit or Contract that has been executed on behalf of a sponsored immigrant for use as evidence in any action of enforcement. DHS estimates the total cost for filing the proposed new Form G-1563 would be approximately $779 annually.

6

6

Calculation: $31.17 (cost per filer to file Form G-1563) * 25 (estimated annual population who would make a formal request using Form G-1563) = $779.25 = $779 (rounded) annual total cost to file Form G-1563.

DHS estimates the total new quantified net costs imposed by the proposed rule would be $240,314,623 annually for sponsors filing an Affidavit for an intending immigrant using Form I-864 and Form I-864EZ, for those executing a Contract using Form I-864A, and for those submitting a notice of a change of address after moving using Form I-865, for those filing Form G-1563 to make a formal request for a certified copy of and Affidavit or Contract, as well as accounting for the estimated cost savings for immigrants applying for adjustment of status who would have needed to request an exemption from filing an Affidavit as DHS is proposing to eliminate Form I-864W for use when filing Form I-485. The estimated new quantified net costs of the proposed rule would be based on an increased opportunity costs of time for completing Form I-864, Form I-864A, and Form I-864EZ,

7

as well as new requirements for completing these forms, including:

7

The quantified cost of the new requirement to provide bank account information for those individuals filing Forms I-864, I-864A and I-864EZ are accounted for in the increased time burden estimate for completing these forms.

• Obtaining credit reports and credit scores,

• obtaining Internal Revenue Service (IRS)-issued certified copies or transcripts of Federal income tax returns for the 3 most recent taxable years, and

• opportunity cost of time to file IRS Form 4506, Request for Copy of Tax Return, to obtain IRS-issued certified Federal income tax returns for completing Form I-864 and Form I-864EZ.

The estimated new quantified costs of the proposed rule also would be based on the proposed requirement that those who file Form I-864A use Form I-865 to provide notice of a change of address after moving.

Over the first 10 years of implementation, DHS estimates the total quantified new net costs of the proposed rule would be $2,403,146,230 (undiscounted). DHS estimates that the 10-year discounted total net costs of this proposed rule would be about $2,049,932,479 at a 3 percent discount rate and about $1,687,869,350 at a 7 percent discount rate.

The primary benefit of the proposed rule would be to better ensure that the sponsored immigrant is financially supported as is required by law and that means-tested public benefit agencies can more efficiently seek reimbursement from sponsors and household members when a sponsored immigrant receives any means-tested public benefit.

DHS also anticipates the proposed rule to produce benefits by strengthening the enforcement mechanism for Affidavits and Contracts through elimination of the subpoena requirement in 8 CFR 213a.4 to make it easier for means-tested public benefits granting agencies to recover payment for any means-tested public benefits that an intending immigrant receives during the period in which an Affidavit or a Contract is enforceable. The proposed rule would update the evidentiary requirements for sponsors submitting an Affidavit and household members submitting Contracts, which would provide immigration officers and immigration judges more effective ways to determine whether individuals have the means to maintain an annual income at or above the outlined income threshold and provide financial support to the intending immigrant and meet all support obligations during the period an

Affidavit is in effect. Additionally, the proposed rule would update and improve how means-tested public benefit-granting agencies obtain immigration status information from USCIS about individuals who are seeking means-tested public benefits and how means-tested public benefit-granting agencies provide information to USCIS.

Table 1 provides a more detailed summary of the proposed provisions and their impacts.

Table 1—Summary of Major Provisions and Economic Impacts of the Proposed Rule

Provisions

Proposed provision

Estimated impact of proposed provision

Amending 8 CFR 213a.1. Definitions

Revising 8 CFR 213a.2. Use of Affidavit of Support

To add new and update existing definitions

Outlines circumstances, requirements, and exemptions for executing an Affidavit of Support Under Section 213A of the INA

Quantitative:

Costs:

• Total annual net costs of the proposed rule would be about $240.3 million, including:

• $226.6 million to applicants who must file Form I-864;

• $10.63 million to those who must complete Form I-864A;

• $6.75 million to applicants who must file Form I-864EZ;

• $3.68 million cost savings to applicants from eliminating Form I-864W;

Adding 8 CFR 213a.3 Change of Address

Requires sponsors and household members to notify USCIS of any change of address within 30 days while the sponsor's and/or household member's support obligation is in effect.

• $2,751 to those who must file Form I-865; and

• $779 to those who file the proposed new Form G-1563.

• Total net costs over a 10-year period would range from:

• $2.40 billion for undiscounted net costs;

• $2.05 billion at a 3 percent discount rate; and

• $1.69 billion at a 7 percent discount rate.

Amending 8 CFR 213a.4. Actions for reimbursement, public notice, and congressional reports

Outlines process by which USCIS provides a certified copy of Affidavit of Support Under Section 213A of the INA or Contract Between Sponsor and Household Member that has been executed to a party or authorized entity

Qualitative:

Costs

• The proposed rule may impose some costs if a joint sponsor must execute an Affidavit in cases where a sponsor has received any means-tested public benefits within 36 months of filing the Affidavit and/or has failed to meet the support or reimbursement obligations under an existing Affidavit or Contract. There could be a reduction in the number of immigrants granted an immigration benefit in cases where the intending immigrant is unable to obtain a sponsor who can meet the new requirements under this proposed rule.

• The proposed rule could result in some sponsors and joint sponsors who may intend to sponsor a family member in the future to forego enrollment or disenroll from a means-tested public benefits program to avoid triggering the proposed additional requirements.

• The proposed rule may result in an increased number of individuals with support obligations who are held accountable for the reimbursement of the cost of means-tested public benefits. Further, sponsors or household members would incur the cost of reimbursing the means-tested public benefits-granting agency and would likely incur the costs of legal representation if means-tested public benefits granting agencies choose to pursue legal action to recover the means-tested public benefits a sponsored individual received.

Qualitative:

Benefits

• Update evidentiary requirements to provide USCIS with more effective ways to determine whether the sponsor has the means to maintain an annual income at or above the outlined income threshold. These updated requirements would better enable USCIS to determine whether the sponsor is able to provide financial support to the intending immigrant and meet all support obligations during the period the Affidavit is in effect;

• Update and improve how means-tested public benefit-granting agencies obtain immigration status information from USCIS about individuals who are seeking means-tested public benefits and how means-tested public benefit-granting agencies provide information to USCIS. This proposed provision would eliminate the requirement of obtaining a duly issued subpoena before USCIS is authorized to provide a certified copy of Form I-864 or Form I-864EZ to a requesting party for use in any action to enforce the support obligation and instead allow a requesting party to submit a formal request for an Affidavit or a Contract directly to USCIS. This will strengthen the enforcement mechanism for Affidavits and Contracts, which would allow means-tested public benefits-granting agencies to recover payment for any means-tested public benefits that a sponsored alien receives during the period in which an Affidavit or Contract is enforceable; and

• Revise the process for informing USCIS about judgments obtained against sponsors (for failing to meet prior support obligations as a sponsor or household member) and indigency determinations to give USCIS flexibility to determine a more efficient mechanism for information reporting, whereby USCIS would be permitted to provide a different mechanism for submitting copies of judgments and indigency determinations to ensure accuracy and efficiency.

Source: USCIS analysis.

DHS does not have sufficient data to quantify the expected benefits of the proposed rule. However, the Administration has identified enforcement of sponsorship obligations as a priority and DHS has made a policy determination that the proposed changes in this rule will assist with better ensuring sponsors and household members who execute a Contract are capable of meeting their support obligations under section 213A of the INA, 8 U.S.C. 1183a, and strengthening the enforcement mechanism for the Affidavit and Contract so that sponsors and household members are held accountable for those support obligations.

III. Background & Purpose

A. Statutory Authority

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

8

Section 531(a) of IIRIRA amended section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), to require an executed Affidavit for certain aliens to avoid a finding of inadmissibility under this section; this includes most aliens seeking an immigrant visa, admission as an

immigrant, or adjustment of status as: (a) An immediate relative, (b) a family-based preference immigrant, or (c) an employment-based preference immigrant, if a relative of the alien is the petitioning employer or has a significant ownership interest in the entity that is the petitioning employer.

9

This formalized Affidavit requirement that had been in common use at overseas consular offices since President Herbert Hoover directed widespread adoption in 1929.

10

Section 551 of IIRIRA added section 213A to the INA, 8 U.S.C. 1183a, and specified the requirements for a sponsor's Affidavit.

11

The new section 213A of the INA, 8 U.S.C. 1183a, also specified who is eligible to be a sponsor, which aliens require an Affidavit, the scope of a sponsor's obligations, and how an Affidavit may be enforced.

12

These provisions were intended to “encourage immigrants to be self-reliant in accordance with national immigration policy.”

13

8

See

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 110 Stat. 3009 (1996).

9

See

INA section 212(a)(4)(C)-(D), 8 U.S.C. 1182(a)(4)(C)-(D).

See

INA section 213A, 8 U.S.C. 1183a.

10

See

INA section 213A, 8 U.S.C. 1183a.

See

Section 551 of IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996). The Department of State had required low-income applicants to submit affidavits since the 1930s (a process that was formalized with Immigration and Naturalization Service (INS) Form I-134), but the courts had determined that the affidavits were legally unenforceable as an obligation to reimburse the government for public aid rendered.

See San Diego County

v.

Viloria

(276 Cal. App. 2d 350, 80 Cal. Rptr. 869 (Cal. App. 1969)). The IIRIRA addressed this issue by requiring that an affidavit of support be legally enforceable.

See

Section 551 of IIRIRA, Pub. L. 104-208, 110 Stat. 3009 (1996).

See

Roger Daniels, Guarding the Golden Door: American Immigration Policy and Immigrants since 1882, at p. 61 (New York: Hill and Wang, 2004).

11

See

INA section 213A, 8 U.S.C. 1183a.

See

Section 551 of IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996).

12

See

INA section 213A, 8 U.S.C. 1183a.

See

Section 551 of the IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996).

13

See

H.R. Rep. 104-828, at 241 (Sept. 24, 1996) (Conf. Rep.). Section 551(d) of IIRIRA mentions the promulgation by the Attorney General [now Secretary of Homeland Security], in consulation with the heads of other appropriate agencies, of a standard form for an affidavit of support consistent with INA 213A.

See

8 U.S.C. 1183a Note. Section 531(b) of IIRIRA also mentions the “standard form” for an Affidavit promulgated by the Attorney General [now Secretary of Homeland Security].

See

8 U.S.C. 1182 Note.

Protecting American taxpayers by requiring sponsors to be responsible for repayment of means-tested public benefits received by sponsored immigrants was another purpose of the support obligation. For example, while considering enacting an Affidavit requirement and imposing obligations on a sponsor, the Senate Committee on the Judiciary stated “[i]t should be made clear to immigrants that the taxpayers of this country expect them to be able to make it in this country on their own and with the help of their sponsors.”

14

The same Senate Committee on the Judiciary further stated that “[i]t was only on the basis of the assurance of the immigrant and the sponsor that the immigrant would not

at any time

become a public charge that the immigrant was allowed in this country” (emphasis in original).

15

14

See

S. Report 104-249, at 7 (Apr. 10, 1996).

15

See

S. Report 104-249, at 6 (Apr. 10, 1996).

Congress also enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which generally imposed new restrictions on an alien's eligibility for many Federal, state, and local benefits.

16

The law prohibits recent immigrants, with some exceptions, from receiving Federal means-tested public benefits such as Temporary Assistance for Needy Families (TANF), the Supplemental Nutrition Assistance Program (SNAP) (formerly known as Food Stamps), and the Children's Health Insurance Program (CHIP).

17

For purposes of determining eligibility for Federal means-tested public benefits programs, PRWORA also specified that the income and resources of an immigrant would generally be deemed to include the income and resources of any person who executed an Affidavit (and that person's spouse, if any).

18

The deeming requirements reflect Congress' determination that aliens “not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations”.

19

16

See

the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Public Law 104-193, 110 Stat. 2105 (1996).

17

See

8 U.S.C. 1611 and 1613.

See

Sections 401 and 403 of PRWORA, Public Law 104-193, 110 Stat. 2105 (1996).

18

See

8 U.S.C. 1631.

See

Section 421 of PRWORA, Public Law 104-193, 110 Stat. 2105 (1996).

19

See

8 U.S.C. 1601(2)(A).

B. Prior Rulemaking

In 1997, the former Immigration and Naturalization Service (INS or the Service)

20

published an interim rule implementing the affidavit of support requirement created by IIRIRA and PRWORA.

21

The interim rule promulgated 8 CFR part 213a, defining the procedures for submitting Affidavits, defining a sponsor's ongoing obligations and specifying the procedures Federal, State, or local agencies, or private entities, must follow to seek reimbursement from the sponsor for provision of means-tested public benefits. In conjunction with the interim rule, the Service also created three new public use forms: Form I-864; Form I-864A; and Form I-865. The interim rule went into effect on December 19, 1997. The interim rule included Department of State consular officers within the meaning of “immigration officer” only for the purpose of 8 CFR part 213a. See 62 FR 54346, 54352 (Oct. 20, 1997).

20

On March 1, 2003, the Service ceased to exist, and its functions were transferred from the Department of Justice to the Department of Homeland Security.

See

Homeland Security Act of 2002, Public Law 107-296 (Nov. 25, 2002). DHS is the issuing authority for this proposed rule since the Homeland Security Act transferred immigration services functions to U.S. Citizenship and Immigration Services.

21

See Affidavits of Support on Behalf of Immigrants,

62 FR 54346 (Oct. 20, 1997).

In a joint rulemaking with the Department of Justice (DOJ) in 2006, DHS adopted the 1997 interim rule as a final rule clarifying who needed an Affidavit, how sponsors qualify, what information and documentation sponsors must present, and when the income of other people could be used to support an intending immigrant. The final rule also made changes that led to the development of Form I-864EZ, for use by a sponsor who relies only on his or her own employment to meet the income requirements under section 213A of the Act, 8 U.S.C. 1183a.

22

22

See Affidavits of Support on Behalf of Immigrants,

71 FR 35731 (June 21, 2006).

On May 23, 2019, President Trump issued the Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens (Presidential Memo).

23

The Presidential Memo states that a “key priority of [the] Administration is restoring the rule of law by ensuring that existing immigration laws are enforced.”

24

The Presidential Memo also emphasized that sponsors who pledge to financially support sponsored aliens will be expected to fulfill their commitment under the law.

25

The Presidential Memo directed Federal agencies to undertake more effective oversight to ensure full compliance with Federal laws on income deeming and reimbursement.

26

Agencies have issued revised guidance on income deeming and reimbursement for Medicaid, CHIP, TANF, and SNAP subsequent to the Presidential Memo.

27

23

See https://www.whitehouse.gov/presidential-actions/memorandum-enforcing-legal-responsibilities-sponsors-aliens/

(last visited May 24, 2019).

24

See

Section 1 of the Presidential Memo.

25

See

Section 1 of the Presidential Memo.

26

See

Sections 1 and 2 of the Presidential Memo.

27

See

Sponsoring Deeming and Repayment for Certain Immigrants, available at

https://www.medicaid.gov/federal-policy-guidance/downloads/sho19004.pdf

(last visited June 2, 2020).

See

Reimbursement obligations of sponsors of noncitizens and procedures for recovering TANF funds, available at

https://www.acf.hhs.gov/ofa/

resource/tanf-acf-pi-2019-01

(last visited June 2, 2020).

See

State Enforcement of Legal Responsibilities of Sponsors of Non-Citizens, available at

https://www.fns.usda.gov/snap/resource/state-enforcement-legal-responsibilities-sponsors-non-citizens

(last visited June 2, 2020).

On August 14, 2019, DHS published a final rule, Inadmissibility on Public Charge Grounds.

28

The final rule explains how DHS will consider Affidavits in the totality of the circumstances when making public charge inadmissibility determinations.

29

28

See Inadmissibility on Public Charge Grounds,

84 FR 41292 (Aug. 14, 2019). Due to delays resulting from ongoing litigation in the U.S. District Courts for the Southern District of New York, Northern District of California, Eastern District of Washington, Northern District of Illinois, and District of Maryland, DHS implemented the final rule nationwide on February 24, 2020. On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined DHS nationwide from enforcing, applying, implementing, or treating as effective the final rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.

New York v .DHS.

No. 19-777 (S.D.N.Y. July 29, 2020). On August 12, 2020, the U.S. Court of Appeals for the Second Circuit issued a partial administrative stay of the nationwide injunction limiting its scope to the Second Circuit,

i.e.,

New York, Connecticut, and Vermont.

New York

v.

DHS,

No. 20-2537 (2d Cir. Ayg. 12, 2020).

29

Under the final rule, “DHS will consider the likelihood that the sponsor would actually provide the statutorily-required amount of financial support to the alien, and any other related considerations.”

See

8 CFR 212.22(b)(7).

C. Current Processing of an Affidavit of Support Under Section 213A of the INA

An Affidavit is required for most family-sponsored immigrants and some employment-based immigrants.

30

A petitioning sponsor must execute Form I-864 or Form I-864EZ at one of the following points in the immigration process depending on the type of immigration benefit the applicant is seeking: As part of the immigrant visa application with DOS; when the principal immigrant submits an application for adjustment of status to permanent resident status with USCIS; or when directed by an immigration judge in the United States.

31

As described further below, in certain circumstances, a joint sponsor or a substitute sponsor is permitted.

32

30

See

INA section 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D).

31

Three different agencies review an Affidavit for sufficiency, each in a different context. USCIS reviews an Affidavit and Contract while adjudicating certain applications for adjustment of status. DOS consular officers also review Affidavits and Contracts as part of the immigrant visa application process, and when an Affidavit is required, to assess potential ineligibility on public charge grounds.

See

22 CFR 40.41. Immigration Courts, which are part of the U.S. Department of Justice (DOJ), Executive Office for Immigration Review (EOIR), may review Affidavits and Contracts in the context of an alien in removal proceedings who is seeking adjustment of status as a form of relief from removal.

32

See

INA section 213A(f)(5), 8 U.S.C. 1183a(f)(5).

By executing an Affidavit, a sponsor is creating a contract between the sponsor and the U.S. Government. The intending immigrant becoming a lawful permanent resident is the consideration for the contract.

33

Under the contract, the sponsor agrees that he or she will provide support to the sponsored immigrant at an annual income not less than 125 percent of the Federal poverty line

34

during the period the obligation is in effect, to be jointly and severally liable for any reimbursement obligation incurred as a result of the sponsored immigrant receiving means-tested public benefits during the period of enforcement,

35

and to submit to the jurisdiction of any Federal or State court for the purpose of enforcing the support obligation. The sponsor also agrees that the U.S. Government can consider the sponsor's income and assets as available for the support of the sponsored immigrant when the immigrant applies for means-tested public benefits.

36

33

See

8 CFR 213a.2(e)(1).

34

A sponsor who is on active duty (other than active duty for training) in the Armed Forces of the United States, and is petitioning for the admission of the alien under INA section 204, 8 U.S.C. 1154, as the spouse or child of the sponsor only needs to demonstrate the means to maintain an annual income equal to at least 100 percent of the Federal poverty line.

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

35

See

8 CFR 213a.2(c)(2)(i)(C)(

2

).

36

See

Sections 421-422 of PRWORA, Public Law 104-193, 110 Stat. 2105 (1996).

See

8 U.S.C. 1631.

a. Submitting an Affidavit

Sponsors submit either a Form I-864 or the shorter Form I-864EZ. Sponsors may use the Form I-864EZ if: The sponsor is the petitioner who filed the petition (Form I-130, Petition for an Alien Relative, Form I-129F, Petition for Alien Fiancé(e), or Form I-600, Petition to Classify Orphan as an Immediate Relative) for the relative being sponsored; the relative being sponsored is the only person, other than the petitioner, listed on the petition; and the income the sponsor is using to qualify for the Affidavit is based entirely on the sponsor's salary or pension as shown on one or more Internal Revenue Service Form W-2. Applicants seeking adjustment of status before USCIS file Form I-864 or Form I-864EZ with Form I-485, Application to Register Permanent Residence or Adjust Status. USCIS does not currently charge a separate fee to file Form I-864 or Form I-864EZ. For most immigrant visa applications, Affidavits and Contracts are submitted to the Department of State National Visa Center (NVC). The Department charges a fee to ensure that the Affidavit is properly completed before it is forwarded to a consular post for adjudication of an immigrant visa.

37

An applicant is charged only one fee in certain circumstances. For example, Affidavits from an individual concurrently sponsoring an immediate relative spouse and child would be the same in substance, and essentially duplicative and therefore only one fee is charged. When the Affidavit is submitted directly to a consular post overseas, no fee is charged.

37

The fee authority is contained in 8 U.S.C. 1183a Note, added by Public Law 106-113, Div. B, 1000(a)(7) [Div. A, Title II, sec. 232], Nov. 29, 1999, 113 Stat. 1536, 1501A-425, as amended Public Law 107-228, Div. A, Title II, sec. 211(b), Sept. 30, 2002, 116 Stat. 1365.

The Form I-864 and Form I-864EZ are designed to determine whether the individual executing Form I-864 or Form I-864EZ meets the eligibility criteria for sponsorship.

38

In general, a sponsor is defined as an individual who executes a Form I-864 or Form I-864EZ with respect to a sponsored alien and who: Is a citizen or national of the United States or a lawful permanent resident; is at least 18 years of age; is domiciled in any of the several States of the United States, the District of Columbia, or any territory or possession of the United States; is petitioning for the admission of the alien under section 204 of the INA, 8 U.S.C. 1154; and demonstrates the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.

39

38

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

39

See

INA section 213A(f)(1), 8 U.S.C. 1183a(f)(1).

A petitioner who meets all the requirements of section 213A(f)(1) of the INA, 8 U.S.C. 1183a(f)(1), except for the requirement to demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty line sponsor may still be a sponsor.

40

The term sponsor also includes an individual who is on active duty (other than active duty for training) in the Armed Forces of the United States, is petitioning for his or her spouse or child, and demonstrates (as provided in section 213A(f)(6) of the Act, 8 U.S.C. 1183a(f)(6)) the means to maintain an annual income equal to at least 100 percent of the Federal poverty line.

41

40

See

INA section 213A(f)(2) and (3), 8 U.S.C. 1183a(f)(2) and (3).

41

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

See also

8 CFR 213a.2(c)(2)(iii)(C) and (D).

Certain relatives

42

of employment-based immigrants can also be a sponsor if the relative filed a petition for the sponsored alien as an employment-based immigrant under section 203(b) of the Act, 8 U.S.C. 1153(b), or if the relative has a significant ownership interest in the entity that filed such a petition.

43

The term sponsor includes this relative, if the relative also meets the requirements of section INA 213A(f)(1)(A), (B), (C), 8 U.S.C. 1183a(f)(1)(A), (B), and (C), as described above, and demonstrates (as provided in INA section 213A(f)(6), 8 U.S.C. 1183a(f)(6)) the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.

44

42

See

8 CFR 213a.1 (“Relative means a husband, wife, father, mother, child, adult son, adult daughter, brother, or sister.”).

43

See

INA section 213A(f)(4)(A), 8 U.S.C 1183a(f)(4)(A). This relative would not meet (nor does he or she have to meet) the requirements of INA section 213A(f)(1)(D), 8 U.S.C. 1183a(f)(1)(D).

44

See

INA section 213A(f)(4)(A) and (B)(i), 8 U.S.C. 1183a(f)(4)(A) and (B)(i).

A petitioner who meets all the requirements of section 213A(f)(1) of the Act, 8 U.S.C. 1183a(f)(1), except for the requirement to demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty line, but accepts joint and several liability with a joint sponsor (as defined under section 213A(f)(5)(A) of the INA, 8 U.S.C. 1183a(f)(5)(A)), is also a sponsor.

45

Similarly, a relative of an employment-based immigrant that meets the requirements of section 213A(f)(1)(A), (B), (C), and (f)(4)(A), yet does not meet the requirement to demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty line, but accepts joint and several liability with a joint sponsor (as defined under section 213A(f)(5)(A) of the INA, 8 U.S.C. 1183a(f)(5)(A)), is also a sponsor.

46

Joint sponsors are discussed in greater detail in subsection 1 below.

45

See

INA section 213A(f)(2), 8 U.S.C. 1183a(f)(2).

See

INA section 213A(f)(5)(A), 8 U.S.C. 1183a(f)(5)(A).

46

See

INA section 213A(f)(4)(A) and (B)(ii), 8 U.S.C. 1183a(f)(4)(A) and (B)(ii).

b. Demonstration of Means To Maintain Income

Sponsors may demonstrate that they have the means to maintain an annual income equal to at least 125 percent of the Federal poverty line, or 100 percent as applicable,

47

through a combination of income and/or significant assets.

48

All sponsors must submit a copy of their Federal income tax return, including supporting documents like schedules, for the most recent tax year, or provide evidence demonstrating why they were not required to file a Federal tax return for that year.

49

Sponsors may also submit additional evidence demonstrating their income, including letters evidencing their employment and income, paycheck stubs, and financial statements.

50

47

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

48

See

INA section 213A(f)(6)(A)(i)-(ii), 8 U.S.C. 1183a(f)(6)(A)(i)-(ii).

49

See

8 CFR 213a.2(c)(2)(i)(A)-(B).

50

See

8 CFR 213a.2(c)(2)(i)(A).

Currently, the sponsor's household income for the year in which the intending immigrant filed the application for adjustment of status is given the most evidentiary weight.

51

If the sponsor's projected household income for the year in which the intending immigrant filed the application for adjustment of status meets the applicable income threshold, the immigration officer or immigration judge may determine the Affidavit is insufficient on the basis of household income only if, based on specific facts, it is reasonable to infer that the sponsor will not be able to maintain the household income at a level sufficient to meet the support obligations.

52

When reviewing an Affidavit for sufficiency, the immigration officer or immigration judge may consider facts such as a material change in a sponsor's employment or income history, the number of aliens included in other pending Affidavits executed by the sponsor, and other relevant facts.

53

51

See

8 CFR 213a.2(c)(2)(ii)(C).

52

See

8 CFR 213a.2(c)(2)(ii)(C).

53

See

8 CFR 213a.2(c)(2)(ii)(C).

Sponsors may also demonstrate the means to maintain the applicable annual income through their significant assets or the significant assets of the intending immigrant.

54

Significant assets may include savings accounts, stocks, bonds, certificates of deposit, and real estate.

55

In order to qualify as significant assets, the total value of all the assets must equal at least five times the difference between sponsor's total household income and the current Federal poverty line for sponsor's household size (including all immigrants sponsored on any Affidavit in force or pending).

56

However, if the sponsor is a U.S. citizen and he or she is sponsoring a spouse or child (age 18 years of age or older), the total value of the assets must only be equal to at least three times the difference.

57

If the intending immigrant is an orphan or Hague Convention adoptee who is considered to be coming to the United States for adoption, the total value of the assets only needs to equal the difference between the sponsor's household income and the current Federal poverty line for sponsor's household size (including all immigrants sponsored on any Affidavit in force or pending).

58

Sponsors relying on significant assets need to provide evidence establishing location, ownership, and value of each listed asset.

59

54

See

INA section 213A(f)(6)(A)(ii), 8 U.S.C. 1183A(f)(6)(A)(ii).

See also

8 CFR 213a.2(c)(2)(iii)(A)(

1

), 213a.2(c)(2)(iii)(B).

55

See

8 CFR 213a.2(c)(2)(iii)(B).

56

See

8 CFR 213a.2(c)(2)(iii)(B)(

3

).

57

See

8 CFR 213a.2(c)(2)(iii)(B)(

1

).

58

See

8 CFR 213a.2(c)(2)(iii)(B)(

2

).

59

See

8 CFR 213a.2(c)(2)(iii)(B).

An immigration officer or immigration judge may pursue verification of any information provided for the Affidavit if the sponsor and/or household member provides authorization. If the sponsor and/or household member fails to provide verification authorization, the Affidavit will be considered withdrawn.

60

60

See

8 CFR 213a.2(c)(2)(v).

A sponsor may withdraw an Affidavit at any time until a decision is issued on the applicant's application for an immigrant visa or adjustment of status.

61

The withdrawal must be in writing, must include the sponsor's signature, and must be received before the final decision is issued. A withdrawal may not be retracted.

61

See

8 CFR 213a.2(f).

An Affidavit is considered sufficient if the immigration officer or immigration judge determines a sponsor has demonstrated he or she meets all the eligibility requirements in section 213A(f)(1) or (5) of the Act.

62

The support obligations agreed to when Form I-864, Form I-864EZ, and Form I-864A are executed generally commence when the intending immigrant is granted lawful permanent resident status.

63

The support obligations terminate by operation of law when: The sponsored immigrant becomes a U.S. citizen;

64

the sponsored immigrant has worked or can be credited with 40 qualifying quarters of work in the United States under title II of the Social Security Act

65

(provided that the sponsored immigrant is not credited

with any quarter beginning after December 31, 1996, during which the sponsored immigrant receives or received any Federal means-tested public benefit);

66

the sponsored immigrant dies;

67

the sponsored immigrant abandons or loses lawful permanent resident status and departs the United States;

68

or, the sponsored immigrant obtains lawful permanent resident status on a new basis in removal proceedings based on a new Affidavit (if such an Affidavit is required).

69

The support obligation also terminates if the sponsor dies.

70

Divorce does not end the support obligation.

71

62

An immigrant can be determined to be inadmissible as a public charge under INA section 212(a)(4), 8 U.S.C. 1182(a)(4), even if the immigrant has a sufficient affidavit of support.

See

8 CFR 213a.2(c)(2)(iv).

63

See

8 CFR 213a.2(e)(1). In cases where it is determined that either a Form I-864 executed by a joint sponsor or a Form I-864A executed by a household member is not needed because the petitioning sponsor or substitute sponsor demonstrated the means to maintain income at the applicable threshold, the support obligation associated with such Form I-864 or Form I-864A would not commence.

64

See

8 CFR 213a.2(e)(2)(i)(A).

65

See

42 U.S.C. 401,

et seq.

66

See

8 CFR 213a.2(e)(2)(i)(B).

67

See

8 CFR 213a.2(e)(2)(i)(E).

68

See

8 CFR 213a.2(e)(2)(i)(C) (if the sponsored immigrant has not abandoned permanent resident status, executing the form designated by USCIS for recording such action, this provision will apply only if the sponsored immigrant is found in a removal proceeding to have abandoned that status while abroad).

69

See

8 CFR 213a.2(e)(2)(i)(D).

70

See

8 CFR 213a.2(e)(2)(ii).

71

See Affidavits of Support on Behalf of Immigrants,

71 FR 35731, 35740 (June 21, 2006).

If an Affidavit is deemed insufficient because the sponsor is determined to be unable to maintain household income at a level sufficient to meet the sponsor's support obligations, the intending immigrant will be inadmissible on the public charge ground under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).

72

The intending immigrant's application for adjustment of status or an immigrant visa will be denied.

72

See

INA section 213A(a)(1), 8 U.S.C. 1183a(a)(1).

1. Joint Sponsors and Substitute Sponsors

a. Joint Sponsors

Section 213A(f)(1) of the INA, 8 U.S.C. 1183a(f)(1), defines a sponsor as an “individual who executes an affidavit of support with respect to the sponsored alien,” and who, is a citizen or national of the United States or a lawful permanent resident;

73

is at least 18 years of age;

74

is domiciled in any of the several States of the United States, the District of Columbia, or any territory or possession of the United States;

75

is petitioning for the admission of the alien under section 204 of the Act, 8 U.S.C. 1154;

76

and demonstrates the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.

77

73

See

INA section 213A(f)(1)(A), 8 U.S.C. 1183a(f)(1)(A).

74

See

INA section 213A(f)(1)(B), 8 U.S.C. 1183a(f)(1)(B).

75

See

INA section 213A(f)(1)(C), 8 U.S.C. 1183a(f)(1)(C).

76

See

INA section 213A(f)(1)(D), 8 U.S.C. 1183a(f)(1)(D).

77

See

INA section 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E).

As stated previously, a petitioner who meets all the requirements of section 213A(f)(1) of the INA, 8 U.S.C. 1183a(f)(1), except for the requirement to demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty line, but accepts joint and several liability with a joint sponsor (as defined under section 213A(f)(5)(A) of the INA, 8 U.S.C. 1183a(f)(5)(A)), is also a sponsor.

78

78

See

INA section 213A(f)(2), 8 U.S.C. 1183a(f)(2).

See

INA section 213A(f)(5)(A), 8 U.S.C. 1183a(f)(5)(A).

A joint sponsor is an individual who is not the petitioning sponsor, but who accepts joint and several liability with the petitioning sponsor and who demonstrates the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.

79

79

See

8 CFR 213a.1.

If a petitioner is qualifying as a sponsor under section 213A(f)(2) of the Act, 8 U.S.C. 1183a(f)(2), by accepting joint and several liability with a joint sponsor, both the petitioner and the joint sponsor must execute Form I-864.

80

A joint sponsor is permitted where the petitioning sponsor cannot demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty line, or 100 percent as applicable.

81

A joint sponsor cannot serve as a replacement for the petitioning sponsor; both the petitioner and the joint sponsor must accept joint and several liability.

82

Therefore, the joint sponsor must file Form I-864 in addition to the petitioning sponsor, and only if the petitioning sponsor does not meet the requirement of demonstrating the means to maintain an annual income as stated in the statute and regulations.

83

The joint sponsor must provide evidence of income or assets that independently meets the income threshold to support the sponsored immigrant(s).

84

The joint sponsor cannot meet the income threshold by combining his or her income with the income of the petitioning sponsor and/or the sponsored immigrant.

85

80

See

INA section 213A(f)(2), 8 U.S.C. 1183a(f)(2).

See

INA section 213A(f)(5)(A), 8 U.S.C. 1183a(f)(5)(A).

81

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

82

See

INA section 213A(f)(2), 8 U.S.C. 1183a(f)(2).

See

INA section 213A(f)(5)(A), 8 U.S.C. 1183a(f)(5)(A).

83

See

INA section 213A(f)(2), (3), (5)(A), and (6), 8 U.S.C. 1183a(f)(2), (3), (5)(A), and (6).

See also

8 CFR 213a.2(b)(1).

84

See

INA section 213A(f)(5)(A), 8 U.S.C. 1183a(f)(5)(A).

See also

8 CFR 213a.2(c)(2)(iii)(C).

85

See

8 CFR 213a.1.

An intending immigrant may not submit a Form I-864 executed by more than one joint sponsor.

86

However, if the joint sponsor's household income is insufficient to meet the income requirement with respect to the principal intending immigrant, plus any spouse and all the children who seek to accompany the principal intending immigrant,

87

the joint sponsor may specify on the Affidavit that it is submitted only on behalf of the principal intending immigrant and those accompanying family members specifically listed on the Affidavit.

88

Any remaining accompanying family members not included in the first joint sponsor's affidavit would be inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), unless a second joint sponsor submits a Form I-864 on their behalf.

89

A family group consisting of the principal intending immigrant and the accompanying spouse and children may not have more than two joint sponsors.

90

86

See

8 CFR 213.2(c)(2)(iii)(C).

87

See

INA section 203(d), 8 U.S.C. 1153(d).

88

See

8 CFR 213a.2(c)(2)(iii)(C).

89

See

8 CFR 213a.2(c)(2)(iii)(C).

90

See

8 CFR 213a.2(c)(2)(iii)(C).

b. Substitute Sponsors

A petitioning sponsor's death ends the sponsor's obligation to meet the terms of the Affidavit. However, a petitioning sponsor's death does not end the requirement to submit a sufficient Affidavit, if such requirement applies. An applicant cannot meet the Affidavit requirement by relying on a Form I-864 or Form I-864EZ signed by a deceased petitioning sponsor. A substitute sponsor may submit an Affidavit if USCIS determines for humanitarian reasons that revocation of the approval of the immigrant petition would be inappropriate, or if the petition is being adjudicated pursuant to section 204(l) of the Act, 8 U.S.C. 1154(l).

91

Except for the requirement of petitioning for the admission of the alien under section 204 of the Act, 8 U.S.C. 1154, a substitute sponsor must meet the same sponsorship requirements as the petitioning sponsor.

92

A substitute sponsor must be related to the intending immigrant applicant in one of the ways

specified in section 213A(f)(5)(B) of the INA, 8 U.S.C. 1183a(f)(5)(B).

93

91

See

INA section 213A(f)(5)(B), 8 U.S.C. 1183a(f)(5)(B).

See

INA section 204(l), 8 U.S.C. 1154(l).

See also

8 CFR 205.1(a)(3)(i)(C)(

2

).

92

See

INA section 213A(f)(1) and (5)(B), 8 U.S.C. 1183a(f)(1) and (5)(B).

See also

8 CFR 213a.2(c)(2)(iii)(D).

93

A substitute sponsor can be the spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien or a legal guardian of a sponsored alien.

A Form I-864 signed by an eligible substitute sponsor is an acceptable replacement of the deceased petitioning sponsor's Form I-864 if submitted and received before the adjudication of the adjustment application. If the applicant does not have a substitute sponsor file a sufficient Form I-864 on his or her behalf, then the applicant is inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).

94

94

See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4);

see

INA section 213A(a)(1), 8 U.S.C. 1183a(a)(1).

See also

8 CFR 213a.2(c)(2)(iii)(D).

2. Household Members

In certain circumstances, a sponsor's household members may agree to use their income to financially support an intending immigrant.

95

Although not required by section 213A of the Act, 8 U.S.C. 1183a, in order to meet the income threshold, a sponsor may rely on the income of individuals included in the sponsor's household size (as determined for purposes of section 213A of the Act, 8 U.S.C. 1183a).

96

The individual must be at least 18 years old and the individual must execute Form I-864A.

97

Currently, the following individuals may be household members for purposes of executing Form I-864A:

98

95

See

8 CFR 213a.2(c)(2)(i)(C)

(1).

96

See

8 CFR 213a.2(c)(2)(i)(C)

(1). See Affidavit of Support on Behalf of Immigrants,

62 FR 54346, 54348 (Oct. 20, 1997).

See Affidavit of Support on Behalf of Immigrants,

71 FR 35732, 35736 (June 21, 2006).

97

See

8 CFR 213a.2(c)(2)(i)(C)

(1). See Affidavit of Support on Behalf of Immigrants,

62 FR 54346, 54348 (Oct. 20, 1997).

See Affidavit of Support on Behalf of Immigrants,

71 FR 35732, 35736 (June 21, 2006).

98

See

8 CFR 213a.1 and 213a.2(c)(2)(i)(C)(

1

).

• The sponsor's spouse, parent, child, sibling, or adult child who has the same principal residence as the sponsor;

• Any person who the sponsor lawfully claims as a dependent on the sponsor's most recent Federal tax return;

• An intending immigrant who has the same principal residence as the sponsor if there is a spouse or child immigrating with the intending immigrant, and the intending immigrant can establish his or her income comes from authorized employment in the United States

99

and is the result of employment in a lawful enterprise or some other lawful source, and that employment from a lawful source will continue even after acquiring lawful permanent resident (LPR) status; or

99

See

8 CFR 274a.12.

• An intending immigrant who is the sponsor's spouse and can show his or her income comes from authorized employment in the United States

100

and is the result of employment in a lawful enterprise or some other lawful source, and that employment will continue from a lawful source, even after acquiring LPR status if a spouse or child is immigrating with the intending immigrant.

100

See

8 CFR 274a.12.

A household member submits Form I-864A with evidence of his or her income and/or assets.

101

In signing Form I-864A, the household member agrees to provide the petitioning “sponsor as much financial assistance as may be necessary for the petitioning sponsor to maintain the intending immigrant at the annual income level required by section 213A(a)(1)(A) of the Act.”

102

Household members are jointly and severally liable for any reimbursement obligation the sponsor may incur.

103

101

See

8 CFR 213a.2(c)(2)(i)(C)(

4

). The regulation provides that a household member must sign an “affidavit of support attachment”. Form I-864A is the form USCIS designated for the affidavit of support attachment.

102

See

8 CFR 213a.2(c)(2)(i)(C)(

2

).

103

See

8 CFR 213a.2(c)(2)(i)(C)(

2

).

As stated previously, the household member's support obligations terminate by operation of law when: The sponsored immigrant becomes a U.S. citizen;

104

the sponsored immigrant has worked or can be credited with 40 qualifying quarters of work in the United States under title II of the Social Security Act

105

(provided that the sponsored immigrant is not credited with any quarter beginning after December 31, 1996, during which the sponsored immigrant receives or received any Federal means-tested public benefit);

106

the sponsored immigrant dies;

107

the sponsored immigrant abandons or loses lawful permanent resident status and departs the United States;

108

or, the sponsored immigrant obtains lawful permanent resident status on a new basis in removal proceedings based on a new Affidavit (if such an Affidavit is required).

109

104

See

8 CFR 213a.2(e)(2)(i)(A).

105

See

42 U.S.C. 401,

et seq.

106

See

8 CFR 213a.2(e)(2)(i)(B).

107

See

8 CFR 213a.2(e)(2)(i)(E).

108

See

8 CFR 213a.2(e)(2)(i)(C) (if the sponsored immigrant has not abandoned permanent resident status, executing the form designated by USCIS for recording such action this provision will apply only if the sponsored immigrant is found in a removal proceeding to have abandoned that status while abroad).

109

See

8 CFR 213a.2(e)(2)(i)(D).

A household member's obligation created by executing a Form I-864A also terminates when the household member dies.

110

The death of one person who had a support obligation under an Affidavit or a Contract does not terminate the support obligation of any other sponsor, substitute sponsor, joint sponsor, or household member with respect to the same sponsored immigrant.

111

Divorce does not end the support obligation.

112

110

See

8 CFR 213a.2(e)(2)(ii).

111

See

8 CFR 213a.2(e)(2)(ii).

112

See Affidavits of Support on Behalf of Immigrants,

71 FR 35731, 35740 (June 21, 2006).

D. Reimbursement Process

Sponsors are responsible for reimbursing the cost of means-tested public benefits received by sponsored aliens. The Act states “[u]pon notification that a sponsored alien has received any means-tested public benefit, the appropriate nongovernmental entity which provided such benefit or the appropriate entity of the Federal Government, a State, or any political subdivision of a State shall request reimbursement by the sponsor in an amount which is equal to the unreimbursed costs of such benefits.”

113

Agencies can sue sponsors pursuant to the executed Affidavit.

114

113

See

INA section 213A(b)(1), 8 U.S.C. 1183a(b)(1).

114

See

INA section 213A(b)(2), 8 U.S.C. 1183a(b)(2).

If an agency requests reimbursement from a sponsor, the agency must arrange for personal service of a written request for reimbursement upon the sponsor (and any household member who executed Form I-864A).

115

The request for reimbursement must specify the date the support obligation commenced, the sponsored immigrant's name, alien registration number, address, and date of birth, as well as the types of means-tested public benefit(s) that the sponsored immigrant received, the dates the sponsored immigrant received the benefits, and the total amount of the benefits received.

116

Agencies do not need to make a separate request for each type of benefit or for each separate payment; agencies may aggregate in a single request all benefit payments made as of the date of the request.

117

The reimbursement request must include an itemized statement supporting the claim for

reimbursement.

118

The reimbursement request must also include a notification to the sponsor (and any household members) that, within 45 days of the date of service, the sponsor (and any household members) must respond to the request for reimbursement either by paying the reimbursement or by arranging to begin payments pursuant to a schedule that is agreeable to the program official.

119

115

See

8 CFR 213a.4(a)(1)(i).

116

See

8 CFR 213a.4(a)(1)(ii).

117

See

8 CFR 213a.4(a)(1)(iii).

118

See

8 CFR 213a.4(a)(1)(iv).

119

See

8 CFR 213a.4(a)(1)(iv).

A Federal, state, or local government entity or a private entity must wait 45 days from the date it serves the written request for reimbursement before filing a lawsuit against the sponsor or household member.

120

An entity may also bring an action against a sponsor for failure to abide by repayment terms.

121

No cause of action may be brought later than 10 years after the date on which the sponsored alien last received any means-tested public benefit to which an Affidavit applied.

122

120

See

INA section 213A(b)(2)(A), 8 U.S.C. 1183a(b)(2)(A).

See also

8 CFR 213a.4(a)(1)(v).

121

See

INA section 213A(b)(2)(B), 8 U.S.C. 1183a(b)(2)(B).

122

See

INA section 213A(b)(2)(C), 8 U.S.C. 1183a(b)(2)(C).

E. Information Sharing

USCIS considers a sponsor or household member to be in compliance with the support obligations of section 213A(i)(3) of the Act, 8 U.S.C. 1183a(i)(3), unless a party that has obtained a final judgment enforcing the obligations under sections 213A(a)(1)(A) or 213A(b) of the Act, 8 U.S.C. 1183a(a)(1)(A) or 1183a(b), has provided a copy of the final judgment to USCIS.

123

123

See

8 CFR 213a.4(c)(1).

PRWORA also requires certain information sharing between benefit granting agencies and DHS. For sponsored immigrants, section 421(e)(2) of PRWORA, 8 U.S.C. 1631(e)(2), requires agencies to notify DHS when an agency has made an indigency determination, and the notification must include the names of the sponsor and the sponsored immigrant involved.

124

This statutory requirement was implemented at 8 CFR 213a.4(c)(2), providing a mechanism for reporting this information to USCIS.

124

See

8 U.S.C. 1631(e).

F. Problems Arising From Current Processes

1. Insufficient Information About Sponsors' and Household Members' Financial Ability To Maintain Income of at Least the Applicable Threshold or Meet Support Obligations

Although immigration officers and immigration judges make public charge inadmissibility determinations based, in part, on information contained in the Affidavit and supporting documents,

125

currently very little financial information is required from sponsors to make such determinations. Similarly, very little financial information is currently required from household members who submit a Contract. This provides limited insight into the sponsors' and household members' actual ability to maintain income at the income threshold or meet their support obligations. Situations such as variable income, a current or past receipt of means-tested public benefits, or the lack of a U.S. bank account, may indicate a sponsor or household member cannot maintain income of at least the statutory income threshold and/or will not be able to fulfill his or her support obligation to the intending immigrant. The Administration has identified enforcement of sponsorship obligations as a priority and DHS believes a more complete picture of the sponsor's and household member's financial situation would help immigration officers and immigration judges determine whether the sponsor can meet the requirements of section 213A of the Act, 8 U.S.C. 1183a, particularly whether the sponsor has demonstrated the means to maintain income as required by section 213A(f)(6), 8 U.S.C. 1183a(f)(6), and whether the sponsor and household member will actually fulfill his or her support obligation to the intending immigrant. USCIS believes that this will strengthen the integrity of the immigration process.

125

See

INA section 212(a)(4)(B)(ii), (C), (D), 8 U.S.C. 1182(a)(4)(B)(ii), (C), (D); INA section 213A(a)(1), 8 U.S.C. 1183a(a)(1).

See also

22 CFR 40.41.

2. Too Many Household Members Contributing Income to the Sponsor's Household Income

Current DHS regulations do not limit how many household members can agree to make their income available to the sponsor for the purposes of the sponsor meeting the income threshold by executing Form I-864A. Even though such household members agree to provide the sponsor with enough support to maintain the sponsored immigrant and to be jointly and severally liable for any reimbursement obligation the sponsor incurs, household members may not have sufficient resources to individually fulfill a judgment related to the support obligation. Furthermore, despite the language on the Contract, it is not clear that the income of these additional household members is actually available to the sponsor for the support of the intending immigrant. Limiting household members will better ensure that any income listed on Form I-864A is actually available to the sponsor for the support of the intending immigrant.

3. Barriers to Repayment Actions and Reporting Problems

USCIS receives limited information from benefit-granting agencies or otherparties enforcing the Affidavit or Contract, despite the information sharing provisions in the statute and regulations. Current DHS regulations for obtaining copies of Affidavits are burdensome and inefficient because they require a subpoena. Laws governing subpoenas vary by jurisdiction, but subpoenas often need to be issued by a court clerk or by a licensed attorney,

126

which requires additional time and resources. The requirements in the current regulations may have contributed to unintended difficulties for benefit-granting agencies and sponsored immigrants seeking to hold sponsors legally responsible for their obligations based on Affidavits. Similarly, current regulations for reporting judgments against sponsors and indigency determination information to USCIS are confusing as there are multiple addresses to send notifications to, some of which are no longer current.

127

The existing regulation will also soon be incorrect as the mailing address in the regulation will no longer be used for USCIS.

128

126

For example, the Federal Rules of Civil Procedure permit court clerks or attorneys (authorized to practice in the issuing court) to issue subpoenas.

See

Fed. R. Civ. P. Rule 45(a)(3).

127

8 CFR 213a.4(a)(3) indicates that upon the receipt of a duly issued subpoena, USCIS may provide a certified copy of an Affidavit that has been filed on behalf of a specific alien for use as evidence in any action to enforce an Affidavit, and may also disclose the last known address and Social Security number of the sponsor, substitute sponsor, or joint sponsor, but that regulation currently does not provide an address or office to which the subpoena should be sent. 8 CFR 213a.4(c)(3) requires information to be sent to the Office of Program and Regulation Development, which no longer exits.

128

See

8 CFR 213a.4(c)(3). USCIS expects to relocate its headquarters from 20 Massachusetts Ave. NW, Washington, DC 20529, which is the mailing address currently listed in the regulation for reporting purposes.

IV. Discussion of Proposed Rule

A. Requiring Joint Sponsors in Certain Circumstances

DHS is proposing revisions to 8 CFR 213a.2(c) to account for additional evidence relevant to determining whether the sponsor can demonstrate the means to maintain income at the income threshold and whether a sponsor can actually meet his or her support obligations.

1. Joint Sponsor Required When Petitioning or Substitute Sponsor Received Means-Tested Public Benefits

DHS proposes revising 8 CFR 213a.2(c)(2)(ii)(C) to require an applicant filing an application on or after the effective date of this rule to submit a Form I-864 executed by a joint sponsor when the petitioning sponsor or substitute sponsor has received one or more means-tested public benefits

129

on or after the effective date of this rule and within the 36 month period before the Form I-864 is filed.

See

proposed 8 CFR 213a.2(c)(2)(ii)(C)(

4

)(

i

). The 36-month period aligns with DHS' proposed revision to require 3 years of tax returns from sponsors and household members.

See

section D.2 below.

129

The term “means-tested public benefits” is used as currently defined in 8 CFR 213a.1 throughout this proposed rule. The proposed rule does not substantively amend the definition of what constitutes a means-tested public benefit.

Under the current regulation, a sponsor's receipt of means-tested public benefits is excluded from the calculation of the sponsor's income.

130

130

See Affidavits of Support on Behalf of Immigrants,

71 FR 35731, 35738 (June 21, 2006).

A petitioning sponsor's or substitute sponsor's receipt of means-tested public benefits within 36 months of filing Form I-864 indicates that the petitioning sponsor or substitute sponsor may be unable to maintain income equal to at least 125 percent of the Federal poverty line,

131

or 100 percent, as applicable,

132

during the period the Affidavit is in effect and indicates that he or she may not have the ability to meet the support obligations while the Affidavit is in effect.

133

131

See

INA section 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E).

132

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

133

See

INA section 213A(a)(1)(A), 8 U.S.C. 1183a(a)(1)(A).

If the petitioning sponsor or substitute sponsor has received means-tested public benefits on or after the effective date of this rule and within the 36 month period prior to executing the Affidavit he or she would still be required to execute the Affidavit,

134

but would not meet the definition of a sponsor under section 213A(f)(1),(f)(3), or (f)(5)(B) of the Act, 8 U.S.C. 1183a(f)(1), (f)(3), or (f)(5)(B), and therefore, would be unable to meet the income requirements under section 213A of the Act, 8 U.S.C. 1183a.

See also

proposed 8 CFR 213a.2(c)(2)(ii)(C)(

4

)(

i

). Accordingly, the intending immigrant would be found to be inadmissible under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4),

135

unless a joint sponsor executes a separate Affidavit.

136

Joint sponsors who have received a means-tested public benefit on or after the effective date of this rule and within 36 months of submitting the Affidavit would likewise be considered unable to meet the income requirement under section 213A(f)(1)(E) of the Act, 8 U.S.C. 1183a(f)(1)(E).

137

134

See

INA section 213A(f)(1)(D), 8 U.S.C. 1183a(f)(1)(D).

135

See

INA section 213A(a)(1), 8 U.S.C. 1183a(a)(1).

136

See

INA section 213A(f)(2), 8 U.S.C. 1183a(f)(2).

See

INA section 213A(5)(A), 8 U.S.C. 1183a(5)(A).

137

See

INA section 213A(f)(5)(A), 8 U.S.C. 1183a(f)(5)(A).

See also

proposed 8 CFR 213a.2(c)(2)(ii)(C)(

3

)(

ii

).

DHS recognizes that an individual's financial circumstances can vary over time and the receipt of a means-tested public benefit in the past may be less indicative of a current inability to demonstrate the means to maintain income at the applicable threshold for an Affidavit However, DHS believes that looking at the 36-month period before executing Form I-864 will provide a more complete picture of the petitioning sponsor's or substitute sponsor's ability to maintain income and carry out his or her support obligations. Accordingly, DHS proposes to require a joint sponsor when the petitioning sponsor or substitute sponsor has received a means-tested public benefit within 36 months of executing Form I-864 if the means-tested public benefit was received on or after the effective date of the rule. The proposed lookback period also aligns with DHS' policy determination to require 3 years of Federal income tax returns.

Any receipt of a means-tested public benefit received before the effective date of the final rule would be considered only to the extent that it is excluded from the calculation of the sponsor's income, which is USCIS' current practice.

138

138

See Affidavits of Support on Behalf of Immigrants,

71 FR 35731, 35738 (June 21, 2006).

This proposed rule provides advance notice to aliens and public benefit granting agencies that DHS is considering changing how receipt of means-tested public benefits would impact the determination of whether an Affidavit is sufficient. DHS notes that the proposed exclusion of receipt of means-tested public benefits received before the effective date may provide an opportunity for public benefit granting agencies to communicate the potential consequences of receiving means-tested public benefits to the extent such agencies deem appropriate before publication of a final rule. DHS also recognizes that as a result of a future final rule, some benefit-granting agencies may decide to modify enrollment processes and program documentation for designated benefits programs. For instance, agencies may choose to advise potential beneficiaries of the potential immigration consequences of receiving certain public benefits. DHS requests public comments regarding such potential modifications, including information regarding how long it would take to make such modifications, and the resources required to make such modifications. DHS may use this information to determine the appropriate effective date for a final rule, among other purposes.

As an alternative, DHS considered permanently barring an individual who had ever received means-tested public benefits from becoming a sponsor. However, DHS concluded such a policy would unreasonably restrict an individual from petitioning for eligible family members as is permitted by section 204 of the Act, 8 U.S.C. 1154.

DHS specifically requests public comments on the proposed requirement for a joint sponsor when the petitioning sponsor or substitute sponsor has received any means-tested public benefits on or after the effective date of this rule and within 36 months of filing Form I-864, including the 36-month lookback period. DHS is particularly interested in views and data that would inform whether, and to what extent, DHS should consider receipt of means-tested public benefits by petitioning sponsors and substitute sponsors or if there are other potential alternatives that would better ensure that sponsors can demonstrate the means to maintain income at the applicable level and are able to carry out their support obligations during the period of enforceability.

a. Exception for Petitioning Sponsors on Active Duty

DHS proposes not to apply the joint sponsor requirement when the petitioning sponsor has received means-tested public benefits within 36 months of filing the Form I-864 if the petitioning sponsor is on active duty (other than active duty for training) in the Armed Forces of the United States,

is petitioning for his or her spouse or child under section 204 of the Act, 8 U.S.C. 1154, and the petitioning sponsor received the means-tested public benefits while on active duty.

See

proposed 8 CFR 213a.2(c)(2)(ii)(C)(

5

). The United States Government is profoundly grateful for the unparalleled sacrifices of the members of our armed services and their families. Certain members of the military may earn relatively low salaries, particularly if they are early in their careers, that are supplemented by certain allowances and tax advantages.

139

The Act already imposes a different income threshold on petitioning sponsors who are on active duty (other than active duty for training) in the Armed Forces of the United States and who are petitioning for their spouse or child under section 204 of the Act, 8 U.S.C. 1134, who must demonstrate the means to maintain an income equal to at least 100 percent of the Federal poverty line,

140

rather than the 125 percent of the Federal poverty line threshold applicable to all other petitioning sponsors.

141

This exception to the joint sponsor requirement is consistent with Congress' intent to impose different requirements on certain military service-members and their families, as well as DHS' policy of supporting our military personnel.

139

See, e.g.,

37 U.S.C. 201-212, 401-439 (Basic Pay and Allowances Other than Travel and Transportation Allowances, respectively); Lawrence Kapp, Cong. Research Serv., Defense Primer: Regular Military Compensation tbl.1 (Dec. 26, 2019), available at

https://fas.org/sgp/crs/natsec/IF10532.pdf

(reporting average regular military compensation of $41,177 at the E-1 level in 2019, comprised of $20,171 in average annual basic pay, plus allowances and tax advantage) (last visited June 2, 2020).

See

Lawrence Kapp et al., Cong. Research Serv., RL33446, Military Pay: Key Questions and Answers 6-9 (2019), available at

https://fas.org/sgp/crs/natsec/RL33446.pdf

(describing types of military compensation and Federal tax advantages)(last visited June 2, 2020).

140

See

INA section 213a(f)(3), 8 U.S.C. 1183a(f)(3).

141

See

INA section 213a(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E).

DHS considered not excepting eligible military service-members from the proposed requirement for a joint sponsor if the petitioning sponsor has received means-tested public benefits within 36 months of filing an Affidavit. However, since certain service-members already have a different income threshold requirement, and recognizing the invaluable contributions of service-members and their families, DHS proposes excepting eligible service-members from this proposed requirement.

2. Joint Sponsor Required When Petitioning Sponsor or Substitute Sponsor Defaulted on Support Obligation

DHS proposes revising 8 CFR 213a.2(c)(2)(ii)(C) to require the applicant to submit a Form I-864 executed by a joint sponsor when the petitioning sponsor or substitute sponsor has previously defaulted on a support obligation, as shown by a court judgment requiring the petitioning sponsor or substitute sponsor to repay a means-tested public benefit received by a sponsored immigrant.

See

proposed 8 CFR 213a.2(c)(2)(ii)(C)(

4

)(

ii

). A petitioning sponsor's or substitute sponsor's default on a support obligation is indicative of the petitioning sponsor's or substitute sponsor's inability to demonstrate he or she has the means to maintain an annual income equal to at least 125 percent of the Federal poverty line,

142

or 100 percent as applicable;

143

it is also indicative of the inability to provide support to maintain the intending immigrant at the income threshold during the period the obligation is in effect.

144

In addition, if a petitioning sponsor or substitute sponsor has failed to meet his or her support obligations for a different alien under a prior Affidavit (as a sponsor) or Contract (as a household member), this can indicate that he or she may be unable to reimburse an agency for means-tested public benefits on additional Affidavits.

142

See

INA section 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E).

143

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

144

See

INA section 213A(a)(1)(A), 8 U.S.C. 1183a(a)(1)(A).

If the petitioning sponsor or substitute sponsor has failed to fulfill his or her obligation for a different alien on an Affidavit (as a sponsor) or Contract (as a household member) and is subject to a judgment for repayment, this may negatively impact the petitioning sponsor's or substitute sponsor's income because the judgment is similar to a debt that he or she must repay. There may be some instances when a petitioning sponsor's or substitute sponsor's income is obligated toward paying a judgment, and those petitioning sponsors or substitute sponsors may have less income available to support an intending immigrant. A petitioning sponsor's or substitute sponsor's failure to meet the obligation of an Affidavit or Contract is essentially breaching a contract with the Federal Government. As evidenced by the provisions in section 213a of the Act, 8 U.S.C. 1183a, providing for reimbursement and multiple remedies, including liens on real property and garnishment,

145

Congress intended for sponsors to satisfy these obligations and be held accountable when they failed to do so.

145

See

INA section 213A(b)-(c), 8 U.S.C. 1183a(b)-(c).

If the petitioning sponsor or substitute sponsor defaulted on a support obligation, he or she would still be required to execute an Affidavit but would be considered unable to meet the income requirements under section 213A of the Act, 8 U.S.C. 1183a; in particular, the petitioner would not be able to demonstrate the means to maintain income as required by section 213A(f)(6) of the Act, 8 U.S.C. 1183a(f)(6), regardless of whether the individual has since complied with the support obligation (for example, repaid what was owed), and regardless of the individual's current income.

Therefore, the intending immigrant would be found to be inadmissible under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), unless a joint sponsor executed a separate Affidavit.

146

Joint sponsors who have previously defaulted on a support obligation would likewise be considered unable to meet the income requirement under section 213A(f)(1)(E) of the Act, 8 U.S.C. 1183a(f)(1)(E).

147

146

See

INA section 213A(f)(2), 8 U.S.C. 1183a(f)(2).

See

INA section 213A(5)(A), 8 U.S.C. 1183a(5)(A).

147

See

INA section 213A(f)(5)(A), 8 U.S.C. 1183a(f)(5)(A).

DHS considered the alternative of permanently barring an individual who had previously defaulted on a support obligation from becoming a sponsor. However, because section 213A(f)(1)(D) of the Act, 8 U.S.C. 1183a(f)(1)(D), requires that the petitioner for family-based immigrants be a sponsor, DHS concluded that such a policy would unreasonably restrict an individual from petitioning for eligible family members as permitted by section 204 of the Act, 8 U.S.C. 1154. Instead, DHS proposes requiring a joint sponsor execute a Form I-864 in this circumstance.

DHS specifically requests public comments on the proposed requirement for a joint sponsor if the petitioning sponsor or substitute sponsor has previously defaulted on any support obligation. DHS is particularly interested in views and data that would inform whether, and to what extent, DHS should consider previous defaults on support obligations by a petitioning sponsor or substitute sponsor or if there are other potential alternatives that would better ensure sponsors can demonstrate the means to maintain

income at the applicable level and are able to carry out their support obligations during the period of enforceability.

B. Changes to “Household Income” Definition

DHS proposes revising 8 CFR 213a.1 to change the definition of “household income” to limit household income to the income of the sponsor, the sponsor's spouse (if he or she executes a Contract), and, in specific circumstances, the intending immigrant.

See

proposed 8 CFR 213a.1(f). Currently, any household member who meets the criteria set forth in the current household income definition may execute a Contract. Under the proposed definition, household income would only include all income of the sponsor and the sponsor's spouse (if the sponsor's spouse executes a Form I-864A) obtained from employment in a lawful enterprise or some other lawful source.

See

proposed 8 CFR 213a.1(f). Under the proposed rule, household income will not include any income derived from unlawful enterprises, such as proceeds from illegal gambling or drug sales, or from means-tested public benefits.

See

proposed 8 CFR 213a.1(f). Like the current definition of household income, under the proposed rule, household income can include the income of the intending immigrant if the intending immigrant is either the sponsor's spouse or has the same principal residence as the sponsor, and the preponderance of the evidence shows that the intending immigrant's income is derived from employment in a lawful enterprise or some other lawful source, and such employment is authorized

148

and will continue to be available to the intending immigrant after they acquire lawful permanent resident status.

149

148

See

8 CFR 274a.12.

149

See

8 CFR 213a.1.

By limiting whose income may be considered available to the sponsor, DHS believes it will reduce the possibility of counting income of household members who may not be able to, on their own, meet the support obligations. The Contract allows a sponsor to include the income of a household member as part of the sponsor's income in cases where the sponsor cannot meet it by himself or herself. While the household member agrees to be jointly and severally liable with the sponsor to support the sponsored immigrant(s), the household member does not need to demonstrate that he or she can maintain income at the applicable income threshold. Moreover, even where a household member has enough income and/or assets to help meet the income threshold, the household member's income and assets may actually be unavailable to support the sponsored immigrant because the household member has other financial obligations.

DHS believes that limiting household income to the income of the sponsor, the sponsor's spouse, and, in certain circumstances, the intending immigrant, more accurately reflects income that will be available to the sponsor to support the intending immigrant under the support obligation.

DHS believes there is a greater likelihood that the income of the sponsor's spouse (compared to other household members) would actually be available to the sponsor to support the intending immigrant because spouses often share financial resources with each other. DHS further believes that there is a greater likelihood that the income of an intending immigrant would actually be available to the sponsor if the intending immigrant is accompanied by his or her spouse or children because the intending immigrant has a vested interest in his or her own family's success and wellbeing in the United States. Therefore, DHS concluded that limiting the household members who could execute a Contract to the sponsor's spouse and the intending immigrant if accompanied by the intending immigrant's spouse and children would better ensure that the income the sponsor is relying on is actually available to support the intending immigrant.

DHS considered eliminating the Contract entirely, and considering only the sponsor's income for the purposes of the Affidavit. This would prevent any individual who is unable to meet the applicable income threshold based solely on his or her own income and assets from executing an Affidavit without a joint sponsor also executing an Affidavit in which the joint sponsor agrees to be jointly and severally liable for the sponsored immigrant. This alternative is consistent with section 213A(f)(6)(A)(ii) of the Act, 8 U.S.C. 1183a(f)(6)(A)(ii), which references only the income of intending immigrants and sponsors. Additionally, it is consistent with one of the aims of this rule—better ensuring that sponsors can meet their support obligations, insofar as the household member is not required to demonstrate the means to maintain income at the applicable income threshold on his or her own or that the income is actually available to the sponsor to use to support the intending immigrants. In cases in which the household member does not have income of at least the income threshold, it is possible that neither the sponsor nor the household members can alone meet the support obligations, even though both have agreed to be jointly and severally liable for the support obligation. However, DHS did not want to preclude the immigration of an intending immigrant's minor children because the petitioning sponsor could not use the income of the intending immigrant parent. Furthermore, DHS recognizes that dual income households are a common and accepted way for households to meet their needs, DHS decided to continue to take this fact into account. DHS specifically requests public comments on the proposed changes to the household income definition, including the proposed limitation on who may execute a Contract. DHS is particularly interested in views and data that would inform how DHS should define household income, or if there are other potential alternatives that would help ensure that household income is actually available to the sponsor to support the intending immigrant.

C. Changes to “Household Size”

DHS proposes revising 8 CFR 213a.1 to change the definition of household size to also include, for purposes of counting household size: any aliens for whom the sponsor executed a Contract Between Sponsor and Household Member for whom the support obligation has not terminated (including any aliens for whom the sponsor has executed a Contract that has not yet become effective in accordance with 8 CFR 213a.2(e)(1), unless that Contract has been timely withdrawn or the adjustment of status application or immigrant visa application associated with that Contract has been denied and any appeal exhausted or waived); and any aliens the sponsor has sponsored under any other Affidavit for whom the sponsor's support obligation has not terminated (including any aliens for whom the sponsor has executed an Affidavit that has not yet become effective in accordance with 8 CFR 213a.2(e)(1), unless the sponsor has either timely withdrawn the Affidavit of Support or the adjustment of status application or immigrant visa application associated with that Affidavit has been denied and any appeal exhausted or waived).

See

proposed 8 CFR 213a.1(g). The sponsor has already agreed to support these individuals when those Affidavits or Contracts go into effect and these support obligations are relevant to the sponsor's ability to demonstrate means to maintain income to support the

intending immigrant listed on any other Affidavit, as well as the ability to meet his or her support obligations once the Affidavit goes into effect.

With respect to sponsored immigrants and household members who are counted as part of the household size, current regulations require only the inclusion of aliens whom the sponsor has sponsored under any Affidavit, and for whom the sponsor's support obligation has not been terminated, as well as the number of aliens to be sponsored under the current Affidavit.

150

However, a sponsor that previously agreed to make his or her income or assets available to support intending immigrants through a Contract will undertake a support obligation when that Contract goes into effect, which impacts the sponsor's ability to demonstrate that he or she meets the requirements of section 213A of the Act, 8 U.S.C. 1183a, and has the means to maintain income to support any other intending immigrants.

150

See

8 CFR 213a.1.

If the sponsor has executed other Affidavits and Contracts for aliens that have not yet gone into effect, the sponsor has demonstrated the intent to support these sponsored immigrants. However, this proposed change excludes from the household size individuals named on previously executed Affidavits and Contracts where the support obligation will never take effect because the Affidavit or Contract was timely withdrawn or the adjustment of status application or immigrant visa application associated with that Affidavit or Contract has been denied and any appeal exhausted or waived. This proposed change also reflects the reality of variable processing times and the fact that there may be a considerable lag between when an immigration officer or immigration judge reviews a sponsor's earlier-executed Affidavit or Contract and when an immigration officer or immigration judge reviews a later-submitted Affidavit from the same sponsor.

The sponsor's household size should reflect all support obligations the sponsor has agreed to undertake as either a sponsor or as a household member, which will ensure that the immigration officer or immigration judge can assess whether the sponsor meets the requirements set forth in section 213A of the Act, 8 U.S.C. 1183a, and that the sponsor has demonstrated the ability to meet his or her support obligations.

DHS considered keeping the existing household size definition. However, DHS concluded that including the number of individuals sponsored in pending Affidavits or Contracts as part of a sponsor's household size will reduce the instances of sponsors undertaking support obligations that they cannot, or do not intend to, fulfill. DHS believes the proposed change to the household size definition will help ensure sponsors have the means to maintain income at the applicable income threshold and can meet their support obligations. This proposed change will also preserve DHS' limited resources and protect the integrity of the immigration system by reducing insufficient Affidavit filings.

D. Revised Evidentiary Requirements

DHS is proposing revisions to 8 CFR 213a.2(c) to require additional documentary evidence that sponsors need to provide with their Affidavit to demonstrate that they have the means to maintain income at the applicable income threshold. Household members who execute a Contract will also be subject to the proposed additional evidentiary requirements.

1. Requiring Credit Reports and Credit Scores

DHS is proposing amending 8 CFR 213a.2(c)(2)(ii)(C) to allow immigration officers and immigration judges to take a sponsor's credit report and credit score into account when determining whether a sponsor has the means to maintain an annual income at or above the threshold, and whether the sponsor can, in fact, meet his or her support obligations.

See

proposed 8 CFR 213a.2(c)(2)(ii)(C). Credit reports contain information about an individual's bill payment history, loans, current debt, and other financial information such as the number and type of accounts with overdue payments, collection actions, outstanding debt, and the age of the accounts in the United States.

151

Credit reports may also provide information about an individual's work and places of residence, lawsuits, arrests, and bankruptcies in the United States.

152

Credit scores rate an individual's credit worthiness and credit risk at a point in time, and credit scores are based on an individual's financial history.

153

Credit reports and credit scores are frequently used by lenders, employers, insurers, and other entities when assessing individuals' financial circumstances.

154

For example, lenders use credit reports and scores to determine the likelihood that a prospective borrower will repay a loan.

155

151

See

USA.gov

, Credit Reports and Scores, available at

https://www.usa.gov/credit-reports

(last visited June 2, 2020).

See

also Fed. Trade Comm'n,

Consumer Information: Credit Scores

(Sept. 2013), available at

https://www.consumer.ftc.gov/articles/0152-credit-scores

(last visited June 2, 2020).

152

See

USA.gov

, Credit Reports and Scores, available at

https://www.usa.gov/credit-reports

(last visited June 2, 2020).

153

See

USA.gov

, Credit Reports and Scores, available at

https://www.usa.gov/credit-reports

(last visited June 2, 2020).

154

See

USA.gov

, Credit Reports and Scores, available at

https://www.usa.gov/credit-reports

(last visited June 2, 2020).

See

Cheryl R. Cooper et. al., Congressional Research Services, R44125,

Consumer Credit Reporting, Credit Bureaus, Credit Scoring, and Related Policy Issues,

p. 1 (2020), available at

https://fas.org/sgp/crs/misc/R44125.pdf

(last visited June 2, 2020).

155

See

Cheryl R. Cooper et al., Congressional Research Services, R44125,

Consumer Credit Reporting, Credit Bureaus, Credit Scoring, and Related Policy Issues,

p. 1 (2020), available at

https://fas.org/sgp/crs/misc/R44125.pdf

(last visited June 2, 2020).

While the sponsor's credit score or report would not determine, by itself, whether he or she has demonstrated the means to maintain income of at least 125 percent of the Federal poverty line (or 100 percent as applicable),

156

or the means to carry out the support obligations, a poor credit score (below 580)

157

or negative information on the credit report such as a high amount of outstanding debt, late payments, delinquent accounts, collections actions, and bankruptcy may indicate that a sponsor does not have the means to maintain income to support the intending immigrant or that the sponsor will not be able to carry out the support obligations.

156

See

INA section 213A(f)(3), 8 U.S.C. 1183a(f)(3).

157

See

Experian, What is a Good Credit Score, available at

https://www.experian.com/blogs/ask-experian/credit-education/score-basics/what-is-a-good-credit-score/

(last visited June 2, 2020).

On the other hand, a fair or higher credit score (580 or above) or positive credit history may indicate that a sponsor has the means to maintain income to support the intending immigrant and that the sponsor will be able to carry out the support obligation.

For the same reasons set forth above, DHS also proposes to consider the credit report and score of a household member executing Form I-864A.

DHS considered not requesting credit reports and credit scores from sponsors and household members executing Form I-864A. However, DHS determined that the financial status information provided by credit reports and credit scores would assist USCIS in determining if a sponsor or a household member who executes Form I-864A actually has the means to maintain the required income level and whether the sponsor or household member can meet his or her support obligations.

2. Federal Income Tax Returns for 3 Years

Consistent with DHS' authority in section 213A(f)(6)(A)(i) of the Act, 8 U.S.C. 1183a(f)(6)(A)(i), DHS is proposing to amend 8 CFR 213a.2(c)(2)(i)(A) to require sponsors and household members who execute Form I-864A to provide Internal Revenue Service-issued certified copies or Internal Revenue Service-issued transcripts

158

of their Federal income tax returns for the 3 most recent taxable years.

See

proposed 8 CFR 213a.2(c)(2)(i)(A). The statute permits DHS to require tax returns for the 3 most recent taxable years

159

but the existing regulation only requires sponsors to submit tax returns for the most recent taxable year.

160

The 1997 interim final rule implementing section 213A of the Act, 8 U.S.C. 1183a, required sponsors to provide copies of the 3 most recent tax years with an Affidavit.

161

However, in the 2006 final rule, DHS chose to require sponsors to only submit tax returns for the most recent tax year, as permitted by section 213A(f)(6)(B) of the Act, 8 U.S.C. 1183a(f)(6)(B).

162

The 2006 final rule also allowed sponsors to submit tax returns for the 3 most recent tax years, if they believe the additional tax returns may help to establish their ability to maintain the required household income.

163

The alternative of requiring only the tax return from the most recent tax year demonstrates a sponsor's income for that year, and does not allow immigration officers or immigration judges to review a sponsor's ability to maintain that income. Therefore, requiring only the tax return from the most recent tax year is not adequately representative of a sponsor's ability to support the sponsored immigrant throughout the obligation period. The provision in section 213A(f)(6)(B) of the Act, 8 U.S.C. 1183a(f)(6)(B), that permits DHS to limit the evidence that is submitted to demonstrate the means to maintain income to only the most recent tax year is discretionary, and therefore need not be applied to sponsors.

158

A tax transcript summarizes return information and they are available for the most current tax year after the IRS processes the return. Taxpayers can also get them for the past 3 years.

See How to Get Tax Transcripts and Copies of Tax Returns from the IRS,

available at

https://www.irs.gov/newsroom/how-to-get-tax-transcripts-and-copies-of-tax-returns-from-the-irs

(last visited June 2, 2020).

159

See

INA section 213A(f)(6)(a)(i), 8 U.S.C. 1183a(f)(6)(A)(i).

160

See

INA section 213A(f)(6)(B), 8 U.S.C. 1183a(f)(6)(B).

See also

8 CFR 213a.2(c)(2)(i)(A).

161

See Affidavit of Support on Behalf of Immigrants,

62 FR 54346, 54354 (Oct. 20, 1997).

162

See Affidavits of Support on Behalf of Immigrants,

71 FR 35731 (June 21, 2006).

163

See

INA section 213A(f)(6)(B), 8 U.S.C. 1183a(f)(6)(B).

See also

8 CFR 213a.2(c)(2)(i)(A).

See Affidavits of Support on Behalf of Immigrants,

71 FR 35731 (June 21, 2006).

By reviewing 3 years of tax returns for all sponsors, as well as household members executing a Contract, immigration officers and immigration judges will have a more complete picture of a sponsor's financial circumstances in order to determine if a sponsor or household member who executed Form I-864A has demonstrated the means to maintain income at the income threshold for the sponsor's household size and whether the sponsor or household member who executed Form I-864A has demonstrated that he or she will actually be able to fulfill his or her support obligation to the intending immigrant. For purposes of demonstrating the means to maintain income, the total income, before deductions in the sponsor's tax return for the most recent taxable year, will continue to be generally determinative

164

of whether a sponsor's income is sufficient to maintain the sponsored immigrant at the income threshold for the sponsor's household size. As evidenced by the Act, Congress concluded that reviewing 3 years of tax returns was an important factor in demonstrating a sponsor's ability to maintain the required income.

165

164

See

INA section 213A(f)(6)(B), 8 U.S.C. 1183a(f)(6)(B).

165

See

INA section 213A(f)(6)(A)(i), 8 U.S.C. 1183a(f)(6)(A)(i).

Also consistent with the Act, DHS proposes clarifying that the tax returns must be certified copies issued by the Internal Revenue Service (IRS).

166

Individuals may request certified copies from the IRS for the current tax year and the prior six years. DHS proposes conforming edits to the regulation to be consistent with these revisions.

See

proposed 8 CFR 213a.2(c)(2)(i)(B), 8 CFR 213a.2(c)(2)(i)(C)(

4

), and 8 CFR 213a.2(c)(2)(i)(D).

166

See

INA section 213A(f)(6)(A)(i), 8 U.S.C. 1183a(f)(6)(A)(i).

DHS considered keeping the existing requirement for only 1 year of tax returns. However, DHS concluded requiring 3 years of tax returns, instead of a single year, has significant value in determining sponsor eligibility. By reviewing 3 years of tax returns, immigration officers and immigration judges will be able to identify patterns in the yearly income of sponsors, and thereby better establish not only whether the sponsor's income reached the required threshold in the year the Affidavit was filed, but also the sponsor's ability to maintain the required income threshold over time.

E. Bank Account Information

DHS proposes to amend 8 CFR 213a.2(c)(2)(v) to add the collection of the sponsor's bank account information, such as type of account (

e.g.

checking, saving), bank account numbers and routing numbers.

See

proposed 8 CFR 213a.2(c)(2)(v). DHS also proposes to add the collection of bank account information for a household member who executes Form I-864A.

F. Address Change Requirements

DHS is proposing to revise 8 CFR 213a.3 to require that all household members who execute a Contract must notify DHS within 30 days if they change their address.

See

proposed 8 CFR 213a.3. The current regulation only requires sponsors to submit an address change to DHS using Form I-865.

167

Since household members agree to accept the same obligations as a sponsor with regards to the intending immigrant, it is important that DHS has household members' current addresses and DHS is timely notified of any address changes. All household members, whether an alien, U.S. citizen or U.S. national, would be required, under the proposed rule, to notify DHS within 30 days of any change of address.

168

This provision does not alter the current requirement that most aliens in the United States must report each change of address and new address within ten days of such change.

169

167

See

8 CFR 213a.3(a)(1).

168

See

INA section 213A(d), 8 U.S.C. 1183a(d).

See also

8 CFR 213a.3.

169

See

INA section 265(a), 8 U.S.C. 1305(a).

See also

8 CFR 265.1.

Upon request, DHS provides information about sponsors and household members to benefit-granting agencies to assist agencies in performing income deeming and/or to seek reimbursement for means-tested public benefits issued to sponsored immigrants. DHS needs to have current address information for household members, as well as sponsors, in order to perform this service for benefit-granting agencies. DHS also proposes to make household members subject to the same civil penalty imposed on sponsors if they fail to provide notice of an address change to DHS as required.

See

proposed 8 CFR 213a.3(b).

G. Information Sharing Provisions

DHS is proposing to revise 8 CFR 213a.4 to update how certain information concerning sponsors and sponsored immigrants is submitted to or requested from USCIS.

1. Eliminating Subpoena Requirement

To assist benefit-granting agencies and sponsored immigrants in holding sponsors and household members accountable for their support obligations, DHS proposes to revise 8 CFR 213a.4(a)(3) to make it easier for certain parties to obtain certified copies of Affidavits from USCIS.

See

proposed 8 CFR 213a.4(a)(3). Currently, USCIS will provide a certified copy of an Affidavit only after USCIS receives a duly issued subpoena.

170

However, it is burdensome, costly, and inefficient for parties to obtain subpoenas merely to get a copy of an Affidavit. The existing requirement may discourage benefit-granting agencies and sponsored immigrants from enforcing the support obligations and/or seeking reimbursement. Also, in signing an Affidavit, sponsors have already authorized “the release of information contained in [the] affidavit, in supporting documents, and in my USCIS or DOS records, to other entities and persons where necessary for the administration and enforcement of U.S. immigration law.”

171

Household members who sign a Contract also authorize the release of information contained in the Contract.

172

DHS proposes to eliminate the subpoena requirement to make the reimbursement process easier and to better ensure that sponsors and household members who execute a Contract are meeting their support obligations.

173

Instead, DHS proposes that it will provide a certified copy of an Affidavit or Contract after receipt of a formal request to a party or entity authorized to receive a certified copy of an Affidavit or Contract, such as bringing an action to enforce an Affidavit or Contract, so that the Affidavit or Contract may be used as evidence in any action to enforce the support obligation or as part of a request for reimbursement. Authorized parties or entities will make a formal request by submitting to USCIS a new form, Request for Certified Copy of Affidavit of Support Under Section 213A of the INA or Contract Between Sponsor and Household Member (Form G-1563) (“request form”). The request form will not have a filing fee.

170

See

8 CFR 213a.4(a)(3).

171

See

Instructions for Affidavit of Support Under Section 213A of the INA, available at

https://www.uscis.gov/i-864

(last visited June 2, 2020).

172

See

Instructions for Contract Between a Sponsor and Household Member, available at

https://www.uscis.gov/i-864a

(last visited June 2, 2020).

173

See

Presidential Memorandum,

Enforcing the Legal Responsibilities of Sponsors of Aliens,

(May 23, 2019), available at

https://www.whitehouse.gov/presidential-actions/memorandum-enforcing-legal-responsibilities-sponsors-aliens/

(last visited May 24, 2019).

See

8 CFR 213a.4(c)(1).

As an alternative, DHS considered leaving the subpoena requirement in the regulation. However, to better facilitate Congressional intent that sponsors fulfill their support obligations during the period of enforceability, DHS proposes eliminating the subpoena requirement in order to facilitate the initiation of repayment or reimbursement actions. This proposed change is also consistent with the Presidential Memo's directive to establish procedures for data sharing, which will better ensure that existing immigration laws are enforced and that sponsors fulfill their support obligations during the period of enforceability.

DHS specifically requests public comments on the proposed change to eliminate the subpoena requirement. DHS is particularly interested in views and data concerning costs associated with obtaining a duly-issued subpoena, or if there are other potential alternatives that would help ensure that support obligations, including reimbursement of means-tested public benefits, are met. DHS also requests comment on the proposed request form and instructions.

2. Revising Reporting Processes

DHS proposes revising the reporting provisions in 8 CFR 213a.4(c) to provide more efficient mechanisms for fulfilling the reporting requirements. The current regulation requires parties that obtain final judgments against a sponsor to mail certified copies of judgments to the “Office of Program and Regulation Development” at USCIS' headquarters in Washington, DC

174

However, the Office of Program and Regulation Development no longer exists and USCIS' headquarters is expected to relocate in the near future. Similarly, 8 CFR 213a.4(c)(2) directs entities that administer means-tested public benefits to mail written notice of indigency determinations to the Office of Program and Regulation Development. DHS proposes to delete 8 CFR 213a.4(c)(3) in its entirety as the program office and mailing address in that provision are no longer appropriate. DHS also proposes to revise 8 CFR 213a.4(c)(1) and (2) to delete the outdated mailing instructions. Instead, reporting parties will do so in a manner to be described by DHS.

See

proposed 8 CFR 213a.4(c)(1) and (2).

174

See

8 CFR 213a.4(c)(1).

H. Revised Definitions

DHS proposes to add new definitions to 8 CFR 213a.1, revise current definitions of key terms in 8 CFR 213a.1, and also add alphabetical designations for each definition.

See

proposed 8 CFR 213a.1. By defining and clarifying key terms, this proposed rule would provide greater certainty regarding the eligibility criteria for sponsors and intending immigrants. Adding designations for each definition will enhance readability and clarity for the regulation.

• Add definition for active duty. DHS is proposing adding a definition for “active duty” to include: Full-time duty in the U.S. Armed Forces, other than active duty for training, full-time duty (other than for training purposes), as a commissioned officer of the Regular or Reserve Corps of the Public Health Service, full-time duty as a commissioned officer of the National Oceanic and Atmospheric Administration, and full-time duty as a cadet or midshipman at the United States Military Academy, United States Naval Academy, United States Air Force Academy, or the United States Coast Guard Academy. These added definitions clarify who is active duty as the term is used in section 213A(f)(3) of the Act, 8 U.S.C. 1183a(f)(3). DHS proposed this definition because it is consistent with a statutory definition of active duty created by Congress, which applies to Servicemembers and codified in 38 U.S.C. 1965.

• Add definition for active duty for training. DHS is proposing to add the definition for “active duty for training” to mean full-time duty in the U.S. Armed Forces performed by Reserves for training purposes, full-time duty for training purposes performed as a commissioned officer of the Reserve Corps of the Public Health Service, full-time duty as a member, cadet, or midshipman of the Reserve Officers Training Corps while attending field training or practice cruises, and, in the case of members of the National Guard or Air National Guard of any State, full-time duty under sections 316, 502, 503, 504, or 505 of the title 32, United States Code. The term “active duty for training” does not include duty performed as a temporary member of the Coast Guard Reserve. The added definition clarifies who is active duty for training as the term is used in section 213A(f)(3) of the Act, 8 U.S.C. 1183a(f)(3). DHS proposed this definition because it is consistent with a statutory definition of active duty for training duty created by Congress, which applies to Servicemembers codified in 38 U.S.C. 1965.

• Add definition for execute. DHS proposes to add the definition for “execute” to mean, for the purposes of 8 CFR 213a, an Affidavit of Support

Under Section 213A of the INA or a Contract Between a Sponsor and Household Member is executed when a sponsor or household member signs and submits the appropriate forms in accordance with the form instructions to USCIS or the Department of State, as appropriate. This new definition replaces the definition in current 8 CFR 213a.2(a)(1)(ii), which defines the term execute only for the purposes of the Affidavit.

• Amend Federal poverty line definition. DHS proposes to revise the definition of “Federal poverty line” to replace the phrase “the Service” with “DHS”, which reflects the dissolution of the Immigration and Naturalization Service and the transference of its duties and responsibilities to the U.S. Department of Homeland Security through the Homeland Security Act of 2002.

175

DHS is also proposing to amend the Federal poverty line definition to clarify that the poverty guidelines as referenced in the definition is the Federal Poverty Guidelines (FPG) as issued annually by HHS.

175

See

Homeland Security Act of 2002, Public Law 107-296 (Nov. 25, 2002).

• Amend household income definition. DHS is proposing to revise the definition of “household income” to mean the income used to determine whether a sponsor meets the minimum income requirements under sections 213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) of the Act, 8 U.S.C 1183a(f)(1)(E), (f)(3), or (f)(5). Under the proposed amended definition, household income will include all income, obtained from employment in a lawful enterprise or some other lawful source, of the sponsor, the sponsor's spouse if the spouse submitted a Contract, and the intending immigrant's income that will continue to be available to the intending immigrant after he or she acquires lawful permanent resident status. Household income will not include income from employment that has not yet actually begun, income derived from unlawful enterprises, such as proceeds from illegal gambling or drug sales, any intending immigrant income derived from employment that is not authorized under 8 CFR 274a.12, or income from means-tested public benefits, as defined in 8 CFR 213a.1(l). This proposed definition will clarify that household income will not include the income of household members other than the sponsor, the sponsor's spouse who executed a Contract, or the intending immigrant, in order for the sponsor to meet the income requirements of section 213A of the Act, 8 U.S.C. 1183a. This revision will better assist immigration officers and immigration judges in determining whether a sponsor has the means to maintain income of at least 125 percent of the Federal poverty line and whether the sponsor will be able to carry out their support obligations.

• Amend household size definition. DHS is proposing to revise the definition of “household size” to add the requirement that, in addition to the individuals included in the current definition, a sponsor must include any other aliens listed on an executed Affidavit that has not yet gone into effect, unless the sponsor has withdrawn the Affidavit, or the application associated with the Affidavit has been denied and any appeals have been exhausted or waived. DHS is also proposing to include in “household size” aliens for whom the sponsor has executed a Contract and the support obligation is still in effect, and any executed Contract that has not yet gone into effect, unless the sponsor has withdrawn the Contract, or the application associated with the Contract has been denied and any appeals have been exhausted or waived. The proposed amendment would also eliminate the sponsor's ability to include the income of household members besides a spouse who executed Form I-864A and the intending immigrant in order to meet the income requirements of section 213A of the Act, 8 U.S.C. 1183a. DHS is proposing this change to correspond with the proposed amendment of the definition of household income, which would exclude the income of any individual other than the sponsor, the sponsor's spouse, and the intending immigrant. These proposed amendments, consistent with the statute's purpose of ensuring sponsors fulfill their support obligations, will provide a more accurate assessment of the number of individuals the sponsor is currently supporting or is seeking to support. The revised definition will assist DHS in determining if a sponsor meets the support requirements, has demonstrated the means to maintain income at the required income level, and will be able to meet their support obligations.

• Amend immigration officer definition. DHS is proposing to revise the definition of “immigration officer” by updating an incorrect reference. Immigration officer as defined for purposes of 8 CFR chapter I is currently found in 8 CFR 1.2, and not 8 CFR 103.1(j) as 8 CFR 213a.1 currently indicates. Proposed 8 CFR 213a.1(h) is revised to provide that, solely for purposes of this part, immigration officer includes a consular officer, as defined by section 101(a)(9) of the Act, as well as an immigration officer, as defined by § 1.2 of the chapter. This is a technical correction that does not substantively change the definition of immigration officer as currently defined in 8 CFR 213a.1.

• Amend income definition. DHS is proposing to amend the definition of “income” to mean an individual's total income (

e.g.,

adjusted gross income for those who file an Income Tax Return for Single Filers With No Dependents) for purposes of the individual's U.S. Federal income tax liability, including a joint income tax return, excluding any income earned or derived from unlawful enterprises, such as illegal gambling or drug sales. Only an individual's Federal income tax return—that is, neither a state or territorial income tax return nor an income tax return filed with a foreign government—can be filed with an Affidavit or with a Contract, unless the individual had no duty to file a Federal income tax return, and claims his or her state, territorial or foreign taxable income is sufficient to establish the sufficiency of the Affidavit or the Contract. The proposed amendment, consistent with the statute, requires a sponsor to provide verified information regarding his or her income, and therefore provide reliable information regarding a sponsor's ability to support the intending immigrant.

• Amend joint sponsor definition. DHS is proposing to revise the definition of “joint sponsor” to refer to the sponsor who filed the immigrant petition on behalf of the intending immigrant as the “petitioning sponsor”. This amendment corresponds with section 213A(f)(5)(A) of the Act, 8 U.S.C. 1183a(f)(5)(A), which uses the term `petitioning sponsor' and clarifies the identity of the intending immigrant's sponsor.

• Add definition for petitioning sponsor. DHS is proposing to add a definition of “petitioning sponsor” to mean a sponsor who meets all the requirements of section 213A(f)(1)(A) through (E) of the Act; meets the requirements of section 213A(f)(1)(A), (B), (C), and (D) and (f)(2) of the Act; meets the requirements of section 213A(f)(1)(A), (B), (C), and (D) and (f)(3) of the Act; meets the requirements of section 213A(f)(1)(A), (B), (C), and (D) and (f)(4)(A) and (f)(4)(B)(i) of the Act; or meets the requirements of section 213A(f)(1)(A), (B), (C), (f)(4)(A) and (f)(4)(B)(ii) of the Act. This definition, consistent with the statute, differentiates between the petitioning sponsor, as proposed above, any joint sponsor who accepts joint and several

liability with the petitioner,

176

and a substitute sponsor, who accepts the petitioning sponsor's support obligations if the petitioning sponsor dies after the immigrant petition was approved.

177

DHS proposes conforming edits throughout the regulation to be consistent with this new definition.

176

See

INA section 213A(f)(2), 8 U.S.C. 1183a(f)(2).

See

INA section 213A(5)(A), 8 U.S.C. 1183a(5)(A).

177

See

INA section 213A(f)(5)(B), 8 U.S.C. 1183a(f)(5)(B).

• Amend definition of sponsor. DHS is proposing to revise the definition of “sponsor” to include the three categories of sponsors: Petitioning sponsor, joint sponsor, and substitute sponsor. This proposed amendment, consistent with statute, clarifies the categories of sponsors and corresponds to the obligations defined in the statute of each category. DHS proposes conforming edits throughout the regulation to be consistent with this new definition.

• Add definition for U.S. Armed Forces, otherwise known as Armed Forces of the United States. DHS is proposing to add the definition of “U.S. Armed Forces” to mean Army, Navy, Air Force, Marine Corps, and Coast Guard as codified in 10 U.S.C. 101(a)(4). This definition, consistent with the statute, clarifies the key term in the proposed definitions for “active duty” and “active duty for training.”

178

178

See

10 U.S.C. 101(a)(4).

I. Clarifying Affidavit Requirements for Certain Children of U.S. Citizens Acquiring U.S. Citizenship

DHS proposes to clarify the exemption from the Affidavit requirement for foreign-born children who will automatically acquire U.S. citizenship under section 320 of the Act after admission to the United States as an LPR and taking up residence in the legal and physical custody of their U.S. citizen parent. DHS is not adding a new exemption, but rather, is identifying which immigrant categories of children need to file an Affidavit, and which do not, as described below. Accordingly, DHS proposes to amend 8 CFR 213a.2(a)(2)(ii)(E) to clarify that 8 CFR 213a.2(a)(1) does not apply if the intending immigrant:

• Is the child of a U.S. citizen, and the child's lawful admission for permanent residence and residence in the United States in the U.S. citizen parent(s)' legal and physical custody will result in the child's automatic acquisition of citizenship under section 320 of the Act, 8 U.S.C. 1431, as amended, unless the child is considered to be coming to the United States for adoption under sections 101(b)(1)(F) and 101(b)(1)(G) of the Act, 8 U.S.C. 1101(b)(1)(F) and 1101(b)(1)(G).

The current regulation does not address the different ways that a child may come to the United States to be adopted as described in sections 101(b)(1)(E), 101(b)(1)(F), and 101(b)(1)(G) of the Act, 8 U.S.C. 1101(b)(1)(E), 1101(b)(1)(F), and 1101(b)(1)(G). Therefore, these clarifying edits provide the specific provisions under the INA that apply to adopted children who are and who are not subject to the Affidavit requirement.

Alien children of U.S. citizens, who must first establish eligibility for admission, are subject to section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), even though they may later acquire U.S. citizenship upon meeting the requirements of section 320 of the Act, 8 U.S.C. 1431.

179

However, children of U.S. citizens who will automatically acquire citizenship under section 320 of the Act, 8 U.S.C. 1431, after admission to the United States as an LPR and taking up residence in the legal and physical custody of their U.S. citizen parent, are exempt from the Affidavit requirement under the current regulations and will continue to be exempt under the proposed regulations.

180

179

Note that children born abroad to U.S. citizen parents may also acquire U.S. citizenship at birth under certain circumstances, such as where both parents are U.S. citizens and one parent had resided in the United States prior to the child's birth, or where one parent is a U.S. citizen who was physically present in the United States for at least five years, two of which were after age 14. Such children would enter the United States as U.S. citizens and would not be subject to an admissibility determination.

See

INA sections 301 and 309, 8 U.S.C. 1401 and 1409. These children would apply with DOS for a Consular Report of Birth Abroad and/or passport.

See

Department of State, Consular Reports on Birth Abroad, available at

https://travel.state.gov/content/congress-liaison-home/en/Congressional_Liaison/Americans-Abroad/consular-reports-of-birth-abroad.html

(last visited June 2, 2020).

180

See

Child Citizenship Act, Public Law 106-395, 114 Stat. 1631 (Oct. 30, 2000).

See also

8 CFR 213a.2(a)(2)(ii)(E). Stepchildren of U.S. citizens are not eligible for acquisition of citizenship under section 320 of the Act unless the child is adopted by the U.S. citizen step-parent.

See

INA section 101(c)(1), 8 U.S.C. 1101(c)(1).

The following categories of children automatically acquire citizenship after admission as lawful permanent residents and beginning to reside in the legal and physical custody of their U.S. citizen parent(s) and are exempt from filing an Affidavit:

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See

8 CFR 213a.2(a)(2)(ii)(E).

• Child of a U.S. citizen (IR-2/IR-7)—requires an approval of a Petition for Alien Relative, Form I-130. These children are generally admitted as lawful permanent residents or their status is adjusted to that of lawful permanent resident. The child may then file an Application for Certificate of Citizenship, Form N-600, to receive the Certificate of Citizenship.

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The certificate generally would be dated as of the date the child was admitted as a lawful permanent resident. Stepchildren of U.S. citizens are not eligible for acquisition of citizenship under section 320 of the Act, 8 U.S.C. 1431, unless the child is adopted by the U.S. citizen step-parent.

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Except for stepchildren of U.S. citizens who are not eligible for acquisition of citizenship under section 320 of the Act or unless the child is adopted by the U.S. citizen step-parent.

See

INA section 101(c)(1), 8 U.S.C. 1101(c)(1).

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See

INA section 101(c)(1), 8 U.S.C. 1101(c)(1).

• Orphan adopted abroad by a U.S. citizen (IR-3/IR-8)—requires an approval of a Petition to Classify Orphan as an Immediate Relative, Form I-600. These children are generally admitted as lawful permanent residents, and USCIS will send a Certificate of Citizenship to the child without a Form N-600 being filed or adjudicated, provided the child has taken up residence in the United States in the legal and physical custody of the adoptive parents.

• Hague Convention Adoptee adopted abroad by a U.S. citizen (IH-3/IH-8)—requires an approval of a Petition to Classify Convention Adoptee as an Immediate Relative, Form I-800. These children are generally admitted as lawful permanent residents and USCIS will send a Certificate of Citizenship to the child without a Form N-600 being filed or adjudicated, provided the child has taken up residence in the United States in the legal and physical custody of the adoptive parents.

Children who are considered to be coming to the United States for adoption, however, must generally take some additional steps to acquire citizenship and therefore are required to file a Form I-864 or Form I-864EZ under the current and proposed regulations. The proposed rule would clarify which children are considered to be coming to the United States for adoption and therefore subject to the Affidavit requirement. The following categories of children are considered to be coming to the United States for adoption and required to file a Form I-864 or Form I-864EZ:

• Orphan to be adopted by a U.S. citizen (IR-4/IR-9). These children are admitted as lawful permanent residents. Generally, the parent(s) must complete the adoption in the United States.

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See

8 CFR 320.1.

• Hague Convention Adoptee to be adopted by a U.S. citizen (IH-4/IH-9).

These children are admitted as lawful permanent residents. Generally, the parent(s) must complete the adoption in the United States.

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185

See

INA section 101(b)(1), 8 U.S.C. 1101(b).

Congress has enacted numerous laws over the last two decades to ensure that foreign-born children of U.S. citizens are not subject to adverse immigration consequences in the United States on account of their foreign birth. Most notably, the Child Citizenship Act of 2000

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provides that children, including certain adopted children, of U.S. citizen parents automatically acquire U.S. citizenship if certain conditions are met.

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The same year, Congress passed the Intercountry Adoption Act of 2000 (IAA)

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to implement the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention or Convention),

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which established international standards of practices for intercountry adoptions. The IAA protects the rights of children, birth families, and adoptive parents, and improves the Government's ability to assist U.S. citizens seeking to adopt children from abroad.

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186

See

Public Law 106-395, section 101(a), 114 Stat. 1631, 1631 (codified at INA section 320(a)-(b), 8 U.S.C. 1431(a)-(b));

see also Children Born Outside the United States; Applications for Certificate of Citizenship,

66 FR 32137 (June 13, 2001). The CCA applies to children who were under 18 as of February 27, 2001. The law was passed after several high-profile cases in which children who were adopted abroad were subject to deportation despite having grown up in the United States and having believed that they were U. S. citizens.

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See

8 CFR part 320; see also Dep't of State, FAQ: Child Citizenship Act of 2000, available at

https://travel.state.gov/content/travel/en/Intercountry-Adoption/adopt_ref/adoption-FAQs/child-citizenship-act-of-2000.html

(last visited June 2, 2020).

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See

Public Law 106-279, 114 Stat. 1631 (codified at 42 U.S.C. 14901-14954).

See also Hague Convention on Intercountry Adoption; Intercountry Adoption Act of 2000; Accreditation of Agencies; Approval of Persons,

71 FR 8063 (Feb. 15, 2006).

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The United States signed the Convention in 1994, and the Convention entered into force for the United States on April 1, 2008.

See Deposit of Instrument of Ratification by the United States of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption,

72 FR 71730 (Dec. 18, 2007). For the full text of the Convention,

see also

Hague Conference, 33. Convention on Protection of Children and Co-Operation in Respects of Intercountry Adoption (Concluded May 29, 1993), available at

https://assets.hcch.net/docs/77e12f23-d3dc-4851-8f0b-050f71a16947.pdf

(last visited June 2, 2020).

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See

IAA section 2, 42 U.S.C. 14901(a); see also 146 Cong. Rec. S8938-01, S8938 (daily ed. Sept. 21, 2000) (statement by Sen. Landrieu) (“I have said it before and I believe it rings true here, adoption brings people, whether they are Republican, Democrat, conservative, liberal, American, Russian or Chinese, together. United by the belief that all children deserve to grow in the love of a permanent family. Adoption breaks down barriers and helps build families.”). A year earlier, Congress passed Public Law 106-139, 113 Stat. 1696 (1999), to amend the definition of “child” in section 101(b)(1)(E) of the INA, 8 U.S.C. 1101(b)(1)(E), a change that allowed children adopted abroad to maintain their familial relationship with their natural siblings, making it easier for siblings to be adopted together.

For these reasons, the continued exemption of children automatically acquiring citizenship under section 320 of the Act, 8 U.S.C. 1431, after admission as a lawful permanent resident and beginning to reside in the legal and physical custody of their U.S. citizen parent(s) from the Affidavit requirement is consistent with Congress' strong interest in supporting U.S. citizens seeking to welcome foreign-born children into their families.

J. Miscellaneous Other Changes

DHS proposes deleting 8 CFR 213a.2(a)(1)(ii), which explains when an Affidavit is executed. There is no similar provision that explains when a Contract is executed. As noted in section H. above, DHS proposes to add a definition for the term “execute” in proposed 8 CFR 213a.1 that would apply to both Affidavits and Contracts, and would clarify what execute means throughout the proposed rule. Therefore, the provision in 8 CFR 213a.2(a)(1)(ii) would no longer be necessary and DHS proposes its deletion.

DHS proposes deleting 8 CFR 213a.2(a)(1)(i)(B) as not necessary. Currently, the regulations require certain intending immigrants to file Form I-864W, Request for Exemption for Intending Immigrant's Affidavit of Support, to establish that they are exempt from the Affidavit requirement. However, DHS has determined these classes of intending immigrants must provide evidence that they are exempt from the Affidavit requirement as part of submitting the Form I-485, Application to Register Permanent Residence or Adjust Status.

As part of the adjustment of status process, USCIS is responsible for determining whether the applicant has met his or her burden of proof to establish eligibility for the benefit, which includes a determination of whether the alien has demonstrated that no inadmissibility grounds in section 212(a) of the Act, 8 U.S.C. 1182(a), apply.

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Failure to submit an Affidavit when required results in a determination of inadmissibility based on the public charge ground irrespective of any other statutory factors.

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Therefore, an adjustment of status applicant already needs to provide evidence that he or she is exempt from filing an Affidavit, thereby eliminating the need for filing Form I-864W.

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See

INA section 291, 8 U.S.C. 1361.

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See

INA section 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D).

Removing the requirement for certain applicants to file a form and affirmatively request the exemption will be less burdensome for applicants as well as USCIS. Accordingly, DHS will eliminate the use and consideration of Form I-864W.

DHS proposes revising 8 CFR 213a.2(a)(2)(ii) to accurately identify all of the classes of intending immigrants who are exempt from the Form I-864 requirement.

See

proposed 8 CFR 213a.2(a)(2)(ii)(F)-(EE).

DHS proposes revising the support requirements in 8 CFR 213a.2(c)(1)(i) to be more consistent with section 213A(f)(1) of the Act, 8 U.S.C. 1183a(f)(1) and include the requirements that in general, a sponsor must be petitioning for the admission of the alien under section 204 of the Act and demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal Poverty guidelines based on the sponsor's household size.

See

proposed 8 CFR 213a.2(c)(1)(i).

DHS proposes amending 8 CFR 213a.2(c)(2)(iii)(B) to clarify which types of assets may be considered significant assets for Affidavit purposes, including that non-cash assets must be able to be converted into cash within 12 months.

See

proposed 8 CFR 213a.2(c)(2)(iii)(B). This revision reflects USCIS' existing policy and the instructions for Form I-864.

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How DHS calculates significant assets would not change by clarifying that the significant assets are calculated by reference to FPG as this revision reflects the proposed revision of the definition of Federal poverty line which would be based on the FPG. DHS also proposes adding 8 CFR 213a.6, adding a severability clause in the event that any of the provisions in this part are not implemented.

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See

Instructions for Affidavit of Support Under Section 213A of the INA, available at

https://www.uscis.gov/i-864. See also

USCIS Adjudicator's Field Manual, Chapter 20.5(k)(5)(B), available at

https://www.uscis.gov/sites/default/files/policymanual/afm/afm20-external.pdf

(last visited June 4, 2020).

K. Transition Period

DHS proposes that all applications for adjustment of status and applications for immigrant visas postmarked (or if applicable, electronically submitted) before the effective date of the final rule will be adjudicated under the criteria currently found in 8 CFR part 213a as

promulgated by the 2006 final rule.

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All applications for adjustment of status and applications for immigrant visaspostmarked (or if applicable, electronically submitted) on or after the effective date of the final rule will be adjudicated according to the provisions of the final rule. DHS invites public comment on other possible approaches to the transition period between the current regulations and the proposed revisions.

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See Affidavits of Support on Behalf of Immigrants,

71 FR 35731 (June 21, 2006).

V. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

This proposed rule is designated a “significant regulatory action” that is economically significant since it is estimated the proposed rule likely would have an annual effect on the economy of $100 million or more, under section 3(f)(1) of E.O. 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this proposed regulation.

1. Summary of Changes of the Proposed Rule

DHS is proposing to amend its regulations related to Affidavits at 8 CFR part 213a by revising sponsorship requirements to better ensure a sponsor has the means to support intending immigrants at the statutorily-required level. The proposed rule is intended to better ensure all sponsors and household members who execute an Affidavit or Contract can meet the support obligations under section 213A of the Act, 8 U.S.C. 1183a(a). This rule would also strengthen enforcement of Affidavits to hold sponsors and household members accountable if sponsored immigrants obtain means-tested public benefits during the period in which the obligations are in effect.

The proposed rule would update the evidentiary requirements for sponsors submitting an Affidavit. The updated evidentiary requirements would provide immigration officers and immigration judges more effective ways to determine whether the sponsor has the means to maintain an annual income at or above the required income threshold, and whether the sponsor is able to provide financial support to the intending immigrant and meet all support obligations during the period the Affidavit is in effect. Specifically, the proposed rule would require sponsors and household members to provide Federal income tax returns for the 3 most recent tax years, instead of 1 tax return for the most recent tax year, recent credit reports and credit scores, and bank account information.

In addition, the proposed rule would revise policies related to a sponsor's prior receipt of means-tested public benefits or default on another Affidavit or Contract support obligation. Sponsors who have themselves received means-tested public benefits may not have the financial means to support a sponsored immigrant. Similarly, a sponsor who has previously failed to fulfill their support obligations may be an unreliable source of support or repayment for Affidavit purposes. Specifically, this proposed rule would require a joint sponsor when a sponsor has received means-tested public benefits within the past 36 months and/or has had a judgment against him or her for a previous Affidavit.

Moreover, the proposed rule would revise who may execute a Contract. Currently, there is no limit on how many household members or which household members may execute a Contract. DHS intends to permit only a sponsor's spouse or, in certain circumstances, the intending immigrant, to execute a Contract. An intending immigrant may only execute a Contract if he or she has an accompanying spouse or children; if the intending immigrant is the only immigrant being sponsored, the intending immigrant's income may be included as part of the sponsor's Affidavit if it meets the definition of household income.

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DHS believes who may execute a Contract would better ensure that any income used by the petitioning sponsor to support the sponsored alien is actually available to the sponsor for the support of the intending immigrant. As data are unavailable demonstrating that non-spouse household members are less likely to uphold their contract obligations, DHS cannot provide examples of or other information concerning enforcement involving non-spouse household members. This provision reflects DHS' policy preference that intending immigrants should not rely upon a sponsor and a potentially unlimited group of household members to satisfy the requirements of INA 213A.

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See

8 CFR 213a.1.

The proposed rule would update and improve how means-tested public benefit-granting agencies obtain immigration status information from USCIS about individuals who are seeking means-tested public benefits and how means-tested public benefit granting agencies provide information to USCIS. The current practices are outdated and burdensome, and discourage important information sharing and data collection. In order to address this specifically, the proposed rule would:

• Eliminate the requirement of a duly issued subpoena in order for USCIS to provide a certified copy of an Affidavit to a requesting party, and instead allow requesting parties to submit a formal request for an Affidavit or a Contract to USCIS. Eliminating this requirement would allow for a less cumbersome process than obtaining a subpoena.

• Implement the proposed new Form G-1563, Request for Certified Copy of Affidavit of Support Under Section 213A of the INA or Contract Between Sponsor and Household Member, for those from a party or entity authorized to bring an action to enforce an Affidavit or Contract making a formal request to USCIS to provide a certified copy of the requested Affidavit or Contract that has been executed on behalf of a sponsored immigrant for use as evidence in any action of enforcement.

• Remove an incorrect address and state that parties who obtain judgments against a sponsor or household member who executed a Contract Between Sponsor and Household Member, and Federal, state, or local program or private entities that make a determination under section 421(e) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 in the case of any sponsored immigrant, must notify USCIS in a manner to be designated by USCIS.

Lastly, DHS proposes to update the regulation to clarify which categories of aliens are exempt from the requirement to file an Affidavit, and to add and revise definitions to provide greater clarity within the regulations and conform to statutory changes made since the final rule was promulgated in 2006.

2. Summary of Costs and Benefits of the Proposed Rule

The proposed rule would impose new net costs on the population of sponsors executing an Affidavit using Form I-864 or Form I-864EZ as well as the population of household members who execute a Contract using Form I-864A so that a sponsor can use the household member's income and/or assets to demonstrate means to maintain income. Additionally, the proposed rule would impose new net costs on the population executing Form I-864A as a household member who would now be required to submit Form I-865 to provide notice of a change of address after moving. Moreover, the proposed rule would produce some cost savings for immigrants applying for adjustment of status who would have needed to request an exemption from filing an Affidavit as DHS is proposing to eliminate Form I-864W for use when filing Form I-485. Instead, individuals would be required to provide the information previously requested on Form I-864W when filing Form I-485. DHS has determined that the information an applicant provides on Form I-485 would be sufficient for an adjudications officer to be able to verify whether an immigrant is statutorily required to file an Affidavit.

This proposed rule also would impose new costs on those from a party or entity authorized to bring an action to enforce an Affidavit or Contract making a formal request using the proposed new Form G-1563 so that USCIS may provide a certified copy of the requested Affidavit or Contract that has been executed on behalf of a sponsored immigrant for use as evidence in any action of enforcement. DHS estimates the total cost for filing the proposed new Form G-1563 would be approximately $779 annually.

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Calculation: $31.17 (cost per filer to file Form G-1563) * 25 (estimated annual population who would make a formal request using Form G-1563) = $779.25 = $779 (rounded) annual total cost to file Form G-1563.

DHS estimates the total new quantified net costs imposed by the proposed rule would be approximately $240,314,623 annually for those executing an Affidavit for an intending immigrant using Form I-864, Form I-864EZ, for those executing a Contract using Form I-864A, and for those submitting a notice of a change of address after moving using Form I-865, for those filing Form G-1563 to make a formal request for a certified copy of and Affidavit or Contract, as well as accounting for the estimated cost savings for immigrants applying for adjustment of status who would have needed to request an exemption from filing an Affidavit as DHS is proposing to eliminate Form I-864W for use when filing Form I-485. The estimated new quantified net costs of the proposed rule would be based on an increased opportunity costs of time for completing Form I-864, Form I-864A, and Form I-864EZ,

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as well as new requirements for completing these forms, including:

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The quantified cost of the new requirement to provide bank account information for those individuals filing Forms I-864, I-864A, and I-864EZ are accounted for in the increased time burden estimate for completing these forms.

• Obtaining credit reports and credit scores,

• obtaining Internal Revenue Service (IRS)-issued certified copies or transcripts of Federal income tax returns for the 3 most recent taxable years, and

• opportunity cost of time to file IRS Form 4506, Request for Copy of Tax Return, to obtain IRS-issued certified Federal income tax returns for completing Form I-864 and Form I-864EZ.

The estimated new quantified net costs of the proposed rule also would be based on the proposed requirement that those who file Form I-864A use Form I-865 to provide notice of a change of address after moving.

Over the first 10 years of implementation, DHS estimates the total quantified new net costs of the proposed rule would be $2,403,146,230 (undiscounted). DHS estimates that the 10-year discounted total net costs of this proposed rule would be about $2,049,932,479 at a 3 percent discount rate and about $1,687,869,350 at a 7 percent discount rate.

The primary benefit of the proposed rule would be to better ensure that the sponsored immigrant is financially supported, as required by law, and that means-tested public benefit granting agencies can more efficiently seek reimbursement from sponsors or household members when a sponsored immigrant receives means-tested public benefits.

DHS also anticipates the proposed rule to produce benefits by strengthening the enforcement mechanism for Affidavits and Contracts through elimination of the subpoena requirement in 8 CFR 213a.4 to make it easier for means-tested public benefit granting agencies to recover payment for any means-tested public benefits that an intending immigrant receives during the period in which an Affidavit or a Contract is enforceable. The proposed rule would update the evidentiary requirements for sponsors submitting an Affidavit and household members submitting Contracts, which would provi

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