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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Receipt Of Certain Public Benefits Will Not Render Alien A Public Charge: Part 2 of 2

by Weiqi Li and Mark E. Harrington

Before an alien can be denied admission to the US or denied adjustment of status to legal permanent resident based on public charge grounds, a number of factors must be considered by the Bureau of Citizenship and Immigration Services (BCIS) and the Department of State (DOS), including: the alien's age, health, family status, assets, resources, financial status, education and skills. No single factor -- other than the lack of an Affidavit of Support, if required -- will determine whether an alien is a public charge, including past or current receipt of public cash benefits for income maintenance.

Deportation

The BCIS can deport an alien on public charge grounds only if the alien has failed to meet the benefit-granting agency's demand for repayment of a cash benefit for income maintenance or for the costs of institutionalization for long-term care. The BCIS may initiate removal proceedings only if the benefit-granting agency has:

  1. The legal authority to demand repayment. In other words, the alien or designated relatives or friends must be legally obligated to repay the benefit;
  2. Chosen to seek repayment within five years of the alien's entry into the US;
  3. Obtained a final judgment;
  4. Taken all steps to collect on that judgment; and
  5. Been unsuccessful in those attempts.

Even if these conditions are met, the alien is not deportable on public charge grounds if the alien can show that he or she received public cash benefits for income maintenance or was institutionalized for long-term care for causes that arose after entry into the US.

Repayment of Public Benefits

The immigration laws does not request that aliens must repay benefits previously received as a condition of admission or adjustment, and they should not request proof of repayment as a condition for finding the alien admissible to the US. Repayment is relevant to the public charge inadmissibility determination only in the circumstance of deportation on public charge grounds (as described in the Deportation section above)

Receipt of Benefits by Children and other Family Members

As a general rule, the receipt of benefits by a member of the applicant's family is not attributable to the applicant for purposes of determining the likelihood that the applicant will become a public charge. If, however, the family is reliant on the benefits as its sole means of support, the applicant may be considered to have received public cash assistance. This determination is to be made on a case-by-case basis and upon consideration of the totality of the applicant's circumstances.

Other Public Charge Clarifications

There is no public charge test for naturalization.

Public charge is not a factor in whether a non-citizen can sponsor a relative to come to the US. If a non-citizen wishes to sponsor a relative to come to the US, the relative will need to locate a financially sound US Citizen or legal permanent resident to sign a Form I-864 or Form I-134 (Affidavit of Support) in order for the relative to enter the US. Refugees and asylees remain exempt from public charge determinations for purpose of admission and adjustment of status. Similarly, Amerasian, Cuban, Haitian, and Nicaraguan immigration may be exempt from public charge in accordance with the relevant immigration acts.

Most legal permanent residents who have been outside the US for 180 days or less are not applicants for admission and therefore are not subject to the ground of inadmissibility.

Affidavit of Support Forms

A. I-864 or I-134

In any Family-based Immigration case, a petitioner must complete and submit an Affidavit of Support, Form I-864. This means that the petitioners filed or are filing a Form I-130, Petition for Alien Relative or Form I-600, Petition to Classify Orphan as Immediate Relative. An I-864, Affidavit of Support, is also required in Employment-based Immigration only if the petitioner is a family member of the beneficiary and owns more than 5% of the business.

In other circumstances, when an Affidavit of Support is requested, a Form I-134 is applicable. This means, in most Employment-based Immigration cases, Form I-134, Affidavit of Support is acceptable.

B. I-864 and Benefits Counted

The I-864, Affidavit of Support, is a legally enforceable contract between the sponsor and the US government. The contract exists from the time the immigrant is granted Legal Permanent Resident status for up to ten years, or until the immigrant becomes a citizen, or the immigrant completes forty qualifying quarters, whichever period is shorter. If at any point during the enforceable period, however, the immigrant receives a means- tested public benefits, the sponsor can be sued by a Federal, State or local government agency for reimbursement. Comparatively, the I-134 is not a contract, and thus the sponsor bears no such obligation as those stated in the I-864.

In the I-864, the sponsor must be a US citizen or national or have legal permanent resident status. Also, the sponsor must be at least 18 years old, reside in the US or in a US territory.

The Affidavit of Support form, Form I-864, asks whether the sponsor or a member of the sponsor's household has received means-tested benefits within the past 3 years. The purpose of this question is not to determine whether the sponsor is or is likely to become a public charge, but to ensure that the adjudicating officer has access to all facts that may be relevant in determining whether the 125-percent annual income test is met.

Any cash benefits received by the sponsor cannot be counted toward meeting the 125-percent income threshold, which are traditionally Federal means-tested public benefits including Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits.

But receipt of other means-tested benefits, including Emergency Medicaid, short-term, non-cash emergency relief; services provided under the National School Lunch and Child Nutrition Acts; immunizations and testing and treatment for communicable diseases; student assistance under the Higher Education Act and the Public Health Service Act; certain forms of foster-care or adoption assistance under the Social Security Act; Head Start programs; means-tested programs under the Elementary and Secondary Education Act; and Job Training Partnership Act programs is not disqualifying for sponsorship purposes. Public benefit programs are increasingly available to families with incomes above 125 percent of the poverty line.

C. 125-percent Income Threshold

To be qualified as a sponsor of I-864, the sponsor must show that his/her household income is equal to or higher than 125 percent of the U.S. poverty level for your household size. The household size includes the sponsor himself/herself, the dependents, any relatives living with him/her, and the immigrants he/she is sponsoring.

For example:

If the sponsor has spouse and two children, and he wants to sponsor his brother and sister-in-law. The total household is six. According to the 2002 U.S. Poverty Guidelines, the sponsor's total household income must be equal or higher than $30,325. The sponsor must also include in his household size any immigrants he has previously sponsored. In the above example, if the sponsor had previously sponsored his parents, his household size would be eight persons and he would need a household income of $38,025.

If the sponsor is on active duty in the Armed Forces of the US, and the immigrant he/she is sponsoring is his/her spouse or child, the sponsor's income only needs to equal 100 percent of the U.S. poverty level for his/her family size.

If the sponsors cannot meet the minimum income requirements using their earned income, they may have various options:

1. Cash Value of the Sponsor's Assets

Cash Value of the sponsor's assets, such as money in savings accounts, stocks, bonds, and property, can be added to meet the requirements. To determine the amount of assets required to qualify, subtract the sponsor's household income from the 125% of the poverty level for his/her family size. The cash value of his/her assets must be worth five times this difference.

For example:

John wishes to sponsor his parents' immigration. John and his wife's total household income in 2002 was $18,000. They have no other dependants. The total household is four, including John, his wife, John's father and mother. According to the 2002 U.S. Poverty Guidelines, John's total household income must be equal or higher than $22,625. Thus, the difference is $4,625. $4,625 times 5 is equal to $23,125. If John has $23,125 or more cash value in his assets, he is qualified to sponsor his parents.

2. Count the income and assets of members of the household who are related by birth, marriage, or adoption

To use the relative's income, the sponsors must have listed them as dependents on their most recent federal tax return or they must have lived with you for the last 6 months. The sponsors and the joint sponsors must also complete a Form I-864A, Contract between Sponsor and Household Member. In the above example, if John's personal income was $18,000; and his wife's income is $6,000. Their total household income was $24,000, which meets the 125% of the poverty level for his family size of four, that is, $23,125.

3. Count the assets of the relatives the sponsors are sponsoring

The sponsors may also include the value of the sponsored relatives' income and assets. The immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

In the above example, if John and his wife's household income was $18,000. John's parents' income was $6,000. Their total household income should be $24,000, which meets the 125% of the poverty level for his family size of four, that is, $23,125.

D. Totality Test in Reviewing I-864

The immigration law requests a totality test in reviewing I-864, although the I-864 form only requests information regarding the sponsor's income and assets. According to the immigration law, factors such as age, health, family status, assets, resources and financial status, education and skills must be examined.

For example:

In an I-130 immigration petition, where the husband, a US citizen, is sponsoring his alien wife. Both husband and wife are attending medical school and their current combined income is barely sufficient to meet the Federal Poverty Lines for their household of two. Factors such as employability after their graduation, and education, skills, or age are essential in the totality test of immigration officer in order to make a determination on the likelihood that the alien wife will become a public charge.


About The Author

Weiqi Li and Mark E. Harrington are immigration attorneys with the law firm, Zhang & Associates, P.C. in Houston, Texas. Li can be reached at wli@hooyou.com; and Harrington can be reached at mharrington@hooyou.com. Visit the firm website at www.hooyou.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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