Public Charge and Affidavit of Support Issues
Who should be aware?
- Aliens seeking to enter the U.S. on Immigrant or Fiance(e) visas
- Aliens seeking to adjust their status to become Legal Permanent Residents (the "green card" application)
- U.S. sponsors of the above
Since the late 19th century there have been statutes enabling the U.S. government to declare aliens inadmissible if they lack certain financial qualifications. Refugees and asylees apart, all immigrants are required to show that they will not become dependent on government services, i.e. public charges. The same is true when an alien already in the U.S. in nonimmigrant status is applying to become a Legal Permanent Resident.
In order to meet this requirement the prospective immigrant's sponsor fills in an 'affidavit of support'. An affidavit of support is a standard form issued by the Immigration and Naturalization Service (INS).
According to the INS, 'Public Charge' means "an alien who has become (for deportation purposes) or who is likely to become (for admission/adjustment of status purposes) primarily dependent on the government subsistence".
The law requires that the INS (in the US) and the Department of State (overseas applications) take into account certain factors in deciding a public charge issue. Such factors include the alien's age, health, family status, assets, resources, and education. The government official should look at all these factors as a whole and base the decision on "totality of the circumstances". This means that even if the alien fails in one respect, he can still be eligible if other factors compensate sufficiently.
Who is a Public Charge?
There are only two bases on which the government may see you as a public charge:
- reception of public cash assistance for income maintenance purposes, including
- Supplemental Security Income (SSI),
- Temporary Assistance for Needy Families (TANF), excluding some supplementary cash benefits and all non-cash benefits,
- State and local cash assistance programs for income maintenance (General Assistance)
- institutionalization for long-term care at government expense.
- Short term institutionalization for rehabilitation does not count.
Who is not a Public Charge?
The government does not see you as a public charge if you have received any of the follwing.
- Health care benefits such as Medicaid, Children's Health Insurance Program (CHIP), Food Stamps, Special Supplemental Nutrition Program for Women, Infants and Children (WIC), National School Lunch and Breakfast programs and other supplementary or emergency food assistance programs.
- Housing assistance.
- Child care services.
- Energy assistance.
- Emergency disaster relief.
- Foster care and adoption assistance.
- Educational assistance, including benefits under the Head Start Act and aid for elementary, secondary, or higher education.
- Job training programs.
- In-kind, community based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter.
IMPORTANT: Not all types of cash assistance received mean that you may be considered a public charge. The government only considers cash benefits intended for income maintenance purposes. There are programs that provide cash benefits for special purposes which are not income maintenance and thus not considered for public charge purposes. These 'safe' cash programs include: Low Income Home Energy Assistance Program (LIHEAP), transportation or child care benefits provided in cash under TANF or the Child Care and Development Block Grant (CCDBG), and on-time emergency payments made under TANF to avoid the need for on-going cash assistance.
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Affidavit of Support
What is an affidavit of support?
An affidavit of support is a contract between the alien's sponsor and the U.S. government that says, "if the applicant can't support himself financially then the sponsor will - not the government". In practice this means that if the applicant receives cash benefits for income maintenance purposes the sponsor is liable to reimburse the government.
There are currently two kinds of affidavits of support. They are both standard forms issued by the Immigration and Naturalization Service (INS). Depending on applicant-sponsor relationship either the new Form I-864 or old Form I-134 must be completed.
Who has to submit an affidavit of support?
- Anyone applying to become a Legal Permanent Resident (LPR)
- Certain non-immigrant applicants, such as students and parolees may be required to have one
Form I-864: Family Sponsor and Close Family Business Sponsor
The new immigration law of 1996 called the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) created new requirements for all family-sponsored immigrants. They must have the new Form I-864 from a qualifying sponsor. The I-864 is also required if an employment-based immigrant will work for a close relative or for a firm in which a U.S. citizen or lawful permanent resident relative holds at least 5 percent ownership interest.
Sponsor qualifications and obligations
Form I-864 brings along five new requirements for the sponsors, making the process much harder and time consuming.
First, before the IIRIRA came into effect, submitting an affidavit of support was only required if the applicant's income was near or below the federal poverty level. Currently it is required with every family sponsored application.
Second, according to the IIRIRA the sponsor now has to be a U.S. citizen, national, or lawful permanent resident who is at least 18 years of age and domiciled in the U.S.
Third, unlike the old I-134, the new form is legally enforceable. A government office that pays to support an immigrant can now successfully sue sponsors for reimbursement.
Fourth, sponsors are now required to show that they have means to maintain an annual income equal to no less than 125 percent of the federal poverty line.
Finally, there are now some additional obligations for the sponsors. The sponsor agrees to support the alien so that the alien's annual income level is equal to at least 125 percent of the federal poverty line, reimburse any government agency that provides a means-tested benefit to the alien, and submit to the jurisdiction of any Federal or State court for enforcement of the affidavit.
Termination of the Sponsorship Requirements
The sponsor's affidavit of support obligations can terminate in several different ways. The IIRIRA specifies four ways that usually take a considerable amount of time to happen:
- The immigrant claims 40 quarters of work credit. Usually this means that the immigrant has worked for the minimum period of 10 years. The immigrant can, however, also count work quarters earned by a spouse.
- The naturalization of the immigrant. In order to naturalize five years of permanent legal residence in the U.S. is required, three years suffices if the immigrant is married to a U.S. citizen.
- The loss of permanent residence of the immigrant. The INS may rescind the decision to adjust status, removal proceedings against an LPR may be commenced, or an LPR may choose to leave the U.S. voluntarily.
- The death of the immigrant or sponsor. Death of the sponsored immigrant terminates the sponsor's obligation to support but does not terminate his obligation to reimburse an agency for previously paid benefits. If the sponsor dies, the immigrant loses the right to receive support from the sponsor or the sponsor's estate.
The sponsor is required to submit a copy of his federal income tax returns for the three most recent years. If income from other household members is included to meet the 125 percent requirement, then that person's tax returns are also needed.
If the sponsor was not legally obligated to submit a tax return in any of those three years, some further explanation regarding the exemption must be provided.
In case there are problems in showing income at 125 percent of poverty line, the sponsor can satisfy the requirement by submitting proof of assets. The assets must be available for the support of the sponsored alien. Examples of such assets include savings in bank, stocks, bonds, certificates of deposit, life insurance policies, real estate and other personal property.
The sponsor has to submit the proof of ownership in the form of bank statements, stock certificates, deeds, titles to vehicles or other such proof.
Document Checklist for Principal Beneficiary
- Petitioner's original, signed, notarized I-864.
- Copies of petitioner's tax returns from previous three years.
- Evidence of petitioner's employment.
- Evidence of petitioner's assets (if applicable).
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The old Form I-134 is used for other applications such as:
- diversity visa lottery applicants;
- applicants of an employment-based visa where a relative does not have a significant interest in the business;
- nonimmigrants (including K-1 fiance(e) applicants who will subsequently use I-864 for adjustment of status);
- aliens seeking parole into the U.S.;
- aliens seeking release from INS detention;
- returning legal permanent residents subject to public charge requirements.
For in-depth information, contact Capriotti & Associates to schedule a consultation appointment.
CAPRIOTTI & Associates International Law
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