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Tougher rules take effect for sponsoring immigrants
by Stephen Yale-Loehr

For over 100 years, prospective immigrants have had to show that they are not likely to become a "public charge." Unless they can establish that they are not about to go on the dole, they are inadmissible. But to some congressional critics, the public charge provisions didn't do the job. According to them, the standards were too flexible and too many immigrants ended up on welfare. Moreover, their sponsors were able to disclaim responsibility, as affidavits of support were held not to be legally binding. So, as part of the "get tough" immigration law passed in 1996, Congress expanded the public charge requirements. See sections 531 and 551 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Pub. L. No. 104-208, 110 Stat. 3009. To implement those provisions, the Immigration and Naturalization Service (INS) issued a new set of public charge rules that took effect December 19, 1997. The regulations impose tougher requirements on those who sponsor immigrants, making it harder for low-income people to bring their relatives.

Under sections 531 and 551 of the IIRIRA, anyone who petitions to bring a relative for permanent residence (the green card) must also file an affidavit of support (even if the prospective immigrant is financially well fixed). Not only is the affidavit now on a form that is legally binding, the sponsors must meet minimum income requirements. In most cases, they must now show that they have an annual income of at least 125 percent of the federal poverty income level. Finally, the sponsor must agree if necessary to support the sponsored immigrant(s) at a level of at least 125 percent of the federal poverty income level.

Immigrants' rights advocates charge that the new affidavit of support requirements are a back door way to limit immigration to the United States. About 565,000 family-sponsored immigrants a year will need to submit the new affidavits of support. The new rules are likely to hit Mexicans and Salvadorans particularly hard, because their incomes are generally lower than those of many other groups, according to INS research. The INS found that roughly half of Mexicans and Salvadorans may not meet the new requirements. Similarly, a study of 1993 Census Bureau data by the Urban Institute, a Washington, DC think tank, found that 40 percent of immigrant families and 25 percent of Americans born in the United States would not make enough money to sponsor an immigrant.

This article summarizes some of the key requirements for affidavits of support under the new law and regulations, and gives examples of people who may not be able to sponsor their loved ones to immigrate to this country any more.

Who is Affected

The statute requires almost all family-based immigrant visa applicants to file a new I-864 affidavit of support form to satisfy the public charge ground of inadmissibility. Applicants for immigrant visas based on an employment petition must also have an I-864 affidavit of support if a "relative" of the intending immigrant either filed the green card petition or has a "significant ownership interest" in the company. 8 C.F.R. 213a.2(a)(2)(i)(C). On one side, the INS' implementing regulations define "significant ownership interest" as just five percent or more. On the other hand, the regulations limit the definition of "relative" to those relationships that traditionally form the basis of immigration benefits, i.e., spouse, parent, child (including an adult child), and sibling. 8 C.F.R. 213a.1. So, if Uncle Louie owns a 10 percent interest in a pizzeria and the owner offers a job to Louie's nephew Alessio, Uncle Louie does not have to file an affidavit of support. Even though he has a significant ownership interest in the pizzeria, Uncle Louie is not a "relative" for this purpose.

The new affidavit of support requirement does not apply to nonimmigrant visa applications. Nor does it apply to all immigrants. Refugees, people granted asylum, certain widows and widowers, battered spouses and children, diversity visa lottery winners, persons granted suspension of deportation or cancellation of removal, and Cubans and Nicaraguans adjusting status under the new Nicaraguan Adjustment and Central American Relief Act are all exempt from the new affidavit of support requirements.

Sponsors' Eligibility Requirements

The IIRIRA limits who can be a sponsor for purposes of the affidavit of support rules. To qualify as a sponsor, a person must be: (1) a U.S. citizen, national or lawful permanent resident; (2) at least 18 years old; and (3) domiciled in the United States or any U.S. territory or possession. INA 213A(f)(1)(A)-(C), 8 U.S.C. 1183a(f)(1)(A)-(C); 8 C.F.R. 213a.2(c)(1). There are no exceptions.

The domicile requirement may cause a problem in some situations. For example, it could prevent some employment-based visa applicants from qualifying for a green card if the relative who owns a significant interest in the business lives outside the United States. It could also prevent some U.S. citizens or permanent residents residing outside the United States from sponsoring another family member.

Consider Connie from Cornell. She is a U.S. citizen. While attending Cornell she fell in love with Grigorio, a student from Greece. After the two graduated, they moved together to Athens where they married. Now, two years later, they want to return to the United States to live. Grigorio qualifies for a green card as Connie's spouse, but Connie cannot qualify as a sponsor under the affidavit of support rules because she is not domiciled in the United States.

In addition to the three requirements outlined above, the sponsor must normally show that he or she has a household income of at least 125 percent of the federal poverty guidelines, which are set annually by the Department of Health and Human Services. (For active-duty military personnel seeking to sponsor their spouse or children, the income requirement is 100 percent of the federal poverty level.) INA 213A(f), 8 U.S.C. 1183a(f); 8 C.F.R. 213a.2(c)(2).

The key to satisfying the household income rule is knowing which household members or dependents must be counted in determining the size of the family unit, and what can be included as household income. On the first point, the INS' new rule defines household size to include: (1) the sponsor; (2) all persons living in the same residence who are related to the sponsor by birth, marriage or adoption; (3) persons whom the sponsor has claimed as a dependent on the most recent federal income tax return, regardless of their residence; (4) the intending immigrant and all accompanying family members; and (5) other immigrants on whose behalf the sponsor has filed prior I-864 affidavits of support, assuming those contractual obligations have not terminated. 8 C.F.R. 213a.1. If Julio, for example, a lawful permanent resident with a spouse and two children, wants to sponsor Maria, his sister from Mexico, who is married and also has two children, the total household size for purposes of the affidavit of support requirements is eight. Julio must show a household income of at least $33,662.50 to meet 125 percent of the 1997 federal poverty level for that size family unit. Many immigrants will be unable to meet these financial requirements.

To alleviate this burden somewhat, the INS rule allows income from other people besides the principal sponsor to be included in the overall household income. Specifically, the INS defines household income to include money from three sources: (1) the sponsor; (2) other individuals related to the sponsor by birth, marriage or adoption, as long as they have been living in the sponsor's residence for at least the last six months; and (3) persons listed as dependents on the sponsor's federal income tax return for the most recent year. 8 C.F.R. 213a.1.

The six-month residency requirement could pose a problem in some situations, especially for couples where the sponsored immigrant is the family bread winner and the two did not reside together before they got married. In these cases, the immigrating spouse will have to wait six months after the marriage before filing for a green card. The residency requirement may pose a complete barrier to low-income persons seeking to sponsor family members living abroad, even if those family members have a job offer in the United States. It creates a classic "Catch 22," since those aliens may not be able to have their income counted toward the overall household income until they have been living and working in the sponsor's residence for six months, which is not legally possible until they immigrate.

The sponsor who cannot show an income of at least 125 percent of the federal poverty level, can satisfy the financial means requirement by submitting proof of significant assets. 8 C.F.R. 213a.2(c)(2)(iv)(A). These assets can be owned by the sponsor, other household members, or the intending immigrant. According to the INS' rule, the value of the assets must be at least five times the difference between the sponsor's total household income and the appropriate federal poverty level. Take Julio, the U.S. sponsor with a family of eight and an annual household income of $20,000. He needs to show another $13,662.50 to make up the difference between his income and the $33,662.50 necessary to sponsor his sister Maria and her family. If he owns a house with a net worth (after paying off the mortgage) of at least $68,312.50 (five times $13,662.50), that will be enough in assets to sponsor Maria and her family.

A principal sponsor who is unable to meet the financial means test may find a joint sponsor; but that joint sponsor must independently satisfy the age, U.S. domicile and income/asset requirements. 8 C.F.R. 213a.2(c)(2)(iv)(B). This means, among other things, that the sponsor and joint sponsor cannot add their income together to arrive at a total that satisfies the 125 percent of poverty requirement. The joint sponsor must execute a separate affidavit of support and agree to be jointly and severally liable for the full amount of financial support, as well as for reimbursement of any government agency that provides means-tested benefits to the sponsored immigrant.

Notification Requirements

The new rules require sponsors to notify the INS within 30 days if they move. Sponsors who fail to send in a change of address form (Form I-865) can be fined $250 to $2,000, or up to $5,000 if they know that the sponsored immigrant has received welfare benefits. INA 213A(d), 8 U.S.C. 1183a(d); 8 C.F.R. 213a.3.

Enforceability of Affidavits

Under the 1996 law, the I-864 affidavit of support is a legally enforceable contract between the sponsor and the federal government. The intended beneficiaries are the sponsored immigrant and any federal, state or local government agency or private entity that provides a means-tested benefit to the immigrant. Any of the intended beneficiaries can sue the sponsor. Sponsored immigrants can sue to force the sponsor to maintain them at least at 125 percent of the federal poverty level. Moreover, should the immigrant ever obtain a means-tested benefit, the agency or entity that provided that benefit can sue the sponsor for reimbursement. INA 213A(e), 8 U.S.C. 1183a(e); 8 C.F.R. 213a.2(d).

For example, if the sponsored immigrant has received Supplemental Security Income (SSI) benefits based on age or disability, the federal government can ask the sponsor to reimburse the full amount of the monthly benefit. Or if Medicaid covered a sponsored immigrant's hospital bill, both the state and federal governments can sue to collect reimbursement of their respective share of the costs. Faced with the prospect of such costs, a lot of otherwise faithful relatives may balk at signing the new affidavit of support form.

Under the new law, sponsors have to commit to supporting the sponsored immigrant until the immigrant has: (1) become a naturalized U.S. citizen; (2) worked at least 10 years in this country; (3) left the United States permanently; or (4) died. INA 213A(a)(2), (3), 8 U.S.C. 1183a(a)(2), (3); 8 C.F.R. 213a.2(e). A divorce does not nullify the sponsorship agreement. Thus, a spouse who sponsors an immigrant remains liable to support his or her spouse at 125 percent of the federal poverty level even if they get divorced, until one of the four conditions listed above occurs.


Under the new law and regulations, it will be harder than ever for low-income people to sponsor immigrants to this country. The new law also adds a new level of complexity to an already complicated area of law. Now, in addition to understanding the nuances of immigration law, many immigrants must also learn the art of a financial spreadsheet.

Stephen Yale-Loehr is the author (with Stanley Mailman) of Immigration Law and Procedure, published by Matthew Bender and Company, Inc

Mr. Yale-Loehr ( is of counsel at True, Walsh & Miller in Ithaca, New York, and teaches immigration law at Cornell Law School.

A prior version of this article appeared in the New York Law Journal, which is on the Internet at The author thanks the Journal for granting permission to reprint and revise that article..