# 85 FR 62432: Affidavit of Support on Behalf of Immigrants

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-21504

## Section

- **Citation:** 85 FR 62432
- **Heading:** Affidavit of Support on Behalf of Immigrants
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 85 / 85 FR 62432

## Text

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
ties 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
ffice 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
ess 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 http://www.regulations.gov
hip 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 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
ntract 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
le 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
uted 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
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
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
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
e 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
osing 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
ange 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
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
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
rovide financial support to the intending immigrant and meet all support obligations during the period an
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
hile 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
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
es 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
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 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))
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
13A. 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)
e 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)
-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
g 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/ (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
e 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
he 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
avits 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
eds 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
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
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
, 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)
equired 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
vant 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
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 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
immigrant is not credited 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)
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
ts 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)
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
int 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 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
ee 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)
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
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)
rant 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)
priate 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 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)
rvice, 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
nsored 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
igations 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
d 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
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
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
ition 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
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
s 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, 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
ponsor 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, 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
ively); 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 )
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
, 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)
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
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
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
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
use 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
r 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 Affi
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
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 Affida

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-21504. Check the current official text before relying on it. Not legal advice.