Origin & Evolution: Ten Years Of The Affidavit Of Support Under IIRIRA
One of the most common grounds of inadmissibility in permanent residence cases is public charge. Section 212(a)(4) of the Immigration and Nationality Act (INA) lists the factors that adjudicators consider before determining whether an applicant for adjustment of status is likely to become a public charge. Among these factors are the applicant's age, health, family status, assets, resources and financial status, education and skills. Even if these factors appear to be favorable, both the U.S. Citizenship and Immigration Services (USCIS) and consular officers have discretion to find an applicant may become financially dependent on the state. To counter such a potential finding, petition sponsors have generally been required to complete an affidavit of support that shows the financial resources that are readily available to prevent an applicant from becoming a public charge.But where did the affidavit of support come from? Historically, the affidavit of support has evolved from a relatively simple concept into a daunting document with binding contractual effect. On the eve of its tenth anniversary, this article will look back to the origin of the first affidavit of support (Form I-134) and trace its development and transformation into Form I-864 under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).1 The analysis will also follow the evolution of the new affidavit of support through a review of the laws and regulations that have been enacted and promulgated ever since, the case law that followed, and where the affidavit stands today. ORIGINS OF THE AFFIDAVIT OF SUPPORT The Immigration and Nationality Act (INA), enacted in 1950, provides for a ground of inadmissibility due to the likelihood that one would become a "public charge."2 At that time, this provision became the latest iteration of a long standing policy against the admission of paupers, vagrants, and those who would likely become a public charge.3 To overcome the ground of inadmissibility, it was common practice to execute an "affidavit of support" through Form I-134. Form I-134 does not contain the strict contractual language that Form I-864 does and merely states that the sponsor is "willing and able to receive, maintain and support the person(s) named" and that the sponsor is "ready and willing to deposit a bond, if necessary, to guarantee that such person(s) will not become a public charge during his or her stay in the United States, or to guarantee that the above named person(s) will maintain his or her nonimmigrant status, if admitted temporarily and will depart prior to the expiration of his or her authorized stay in the United States." This form, however, was found not to be a legally enforceable document that would allow any governmental agency to seek reimbursement from the sponsor in cases where the sponsored immigrant partook of means-tested public benefits. The court in San Diego County v. Viloria (276 Cal. App. 2d 350, 80 Cal. Rptr 869 (Cal. App. 1969)) specifically held:
The writing is entitled "Affidavit of Support" not a "Contract of Support" nor an "Agreement of Support"; is signed only by the affiant; does not recite or disclose a consideration; is a form supplied by an undisclosed source; in major part contains statements of an evidentiary nature, added to the form, respecting the affiant's citizenship, marital status, property ownership and income; and in only two lines sets forth the form language upon which plaintiff relies as the basis for a contractual obligation. The object of the sponsor's affidavit is to supply the consular officer with information from which he may conclude whether the applicant for a visa is likely to become a public charge. The purpose of the sponsor's affidavit, whether the parties contemplated a legal or moral obligation, was to assure the consular officer those incidents known to the consul indicating the alien was likely to become a public charge would not occur. It was not the purpose of the affidavit to create an obligation to reimburse a governmental agency for services rendered the alien when he became a public charge.San Diego County was the last of a line of state court decisions that held that the I-134 affidavit of support was not a legally enforceable contract.4 This lack of enforcement, in turn, had consequences for immigrants that sought public assistance. In a 1994 decision, Barannikova v. Town of Greenwich Et. Al.,5 the Supreme Court of Connecticut held that state laws requiring immigrant applicants for certain state benefits to include income information from their sponsors was unconstitutional. The plaintiff, who had emigrated from the former Soviet Union, had been sponsored by her ex-husband's sister. Following the divorce, the plaintiff received no support from either of the two. However, when she applied for state support, she was required to divulge income information for her sponsor on record. Her former sponsor refused to provide such information and the application for benefits was denied. The Court first noted that due to Form I-134's lack of enforceability, requiring immigrants to include sponsor information could create an unfair portrait of their financial need. Furthermore, since the laws were directed only at aliens, they created a presumptively invidious classification6 based on alienage and could only be justified if they were narrowly tailored to an important state interest. The Court held that the only compelling state interest, protecting the fiscal integrity of state programs, was poorly served by the distinction because of the equal rights and obligations of citizens and immigrants to work, pay taxes, and reside in the state for long periods of time. By denying the plaintiff's application for a lack of sponsor financial information, the Court held that Connecticut had violated the 14th Amendment's guarantee of equal protection of the laws. IIRIRA AND THE RISE OF FORM I-864 In 1996, amid a sea change in Congress that saw four decades of Democratic control overturned by a wave of Republican conservatism, Congress enacted Pub. L. 104-208, otherwise known as the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)." IIRIRA amended the Immigration and Nationality Act (INA) and added Section 213A, which contained the requirement of a new and legally enforceable affidavit of support. Although some of the new provisions in IIRIRA would take immediate effect as of the date of enactment (September 30, 1996), others became effective on April 1, 1997. The new affidavit, on the other hand, would not be mandatory until implementing regulations introduced it. And it took over a year for this to happen, which caused apprehension to the public on the basis that the longer the regulations took, the worse off the new affidavit requirement would be. Finally, on October 20, 1997, Legacy INS published an interim rule, which introduced the new I-864 Affidavit of Support and its interim regulations. In compliance with IIRIRA, the new form and regulations would take effect within 90 days on December 19, 1997.7 The new affidavit of support became necessary in order "to establish that an alien is not excludable as a public charge under [INA] section 212(a)(4)."8 Thus, Form I-864 was made applicable for all immediate relative and family-based petitions,9 as well as for certain employment based petitions where the employer is a relative of the beneficiary or the business entity filing the petition is one in which the relative owns a significant ownership interest.10 Significant ownership interest was defined to be "an ownership interest of 5 percent or more in a for-profit entity."11 In order to qualify as a sponsor12 under the original IIRIRA regulations, one had to be a citizen, national, or lawful permanent resident of the United States at least 18 years of age, domiciled in the U.S. or its territories or possessions, and able to maintain the beneficiary at an income sufficient to keep him or her from becoming a public charge.13 For most sponsors, this meant demonstrating the means to maintain an annual income of at least 125% of the Federal poverty line14 as determined by the Director of the Office of Management and Budget and adjusted from year to year by the Secretary of Health and Human Services.15 The Federal poverty line varies in proportion to the number of family members in a household. For purposes of Form I-864, a household is considered to include the sponsor, his or her family members living in the same residence, dependents of the sponsor regardless of location, and any immigrants for whom the sponsor has signed a Form I-864.16 The sponsored immigrant's income could be used to establish the minimum household income only if and when he or she had been living in the sponsor's residence for the previous six months; and, for that income to count toward the spouse and children of the immigrant, the immigrant is required to sign Form I-864A, Contract Between Sponsor and Household Member.17 Also, INA §213A(f)(6)(A)(ii) allowed significant assets owned18 by the sponsor or sponsored alien to be counted toward the threshold income if they were available for the support of the sponsored alien and other sources were insufficient, but in that case, those assets would have to be worth five times the current poverty level.19 Failure to demonstrate sufficient means to maintain an income of at least 125% of the Federal poverty line under the above guidelines would result in the intending immigrant's inadmissibility under INA §212(a)(4) unless a co-sponsor filed a separate I-864, establishing joint and several liability with the petitioning sponsor under §212(a)(5).20 Furthermore, to highlight the importance that legislators placed on holding the sponsor accountable in cases where a sponsored immigrant has received means-tested benefits, the sponsor is required to inform the government of any address changes while the obligation to support the sponsored immigrant is in effect.21 Failure to provide information regarding the change of address, which is performed by filing Form I-865, may result in a civil penalty ranging from $250 to $2,000, or from $2,000 to $5,000 when the sponsor has knowledge that the sponsored immigrant has actually received any means-tested benefits.22 Fear of Enforcement The regulations did not stray too far from what legislators intended for the new Affidavit of Support. Thus, prior public confusion from the uncertainty created by IIRIRA turned into apprehension with the publication of the interim regulation. Under INA § 213A(a)(1), the effect of filing Form I-864 was the creation of a contract between the government and sponsor that was legally enforceable against the sponsor by the immigrant beneficiary, any Federal, state, or local government agency, or any other entity that provided means-tested public benefits to the sponsored immigrant.23 Thus, IIRIRA introduced a complete departure from its predecessor, Form I-134, by creating a palpable potential for sponsor liability that was previously absent. Wide concern arose from the uncertainty of how the government would use this new enforcement tool. Magnifying this unease was the continued binding authority of the affidavit against the sponsor, which continued until either the immigrant naturalized or completed 40 qualifying quarters (up to 10 years) of work.24 Clearly, sponsorship became was no small or whimsical obligation. The process was further confused by the continued existence of the old Form I-134, which remained unenforceable. The first case that sought enforcement of the affidavit of support in the post IIRIRA era was Tornheim v. Kohn.25 In this case, plaintiff, an Israeli immigrant, sued his sponsor for maintenance per the terms of his affidavit of support and INA §213A(a)(1). The defendant had signed the affidavit on June 19, 1998, nearly two years after the IIRIRA and more than a year after the INS Interim Rule on Affidavit of Support.26 Nonetheless, the judge noted that the plaintiff's affidavit had been signed on Form I-134 and held that the affidavit was therefore unenforceable, since the IIRIRA amendments to the INA were made conditional on the publication of a new form by the Attorney General.27 It must be noted that the regulations have always stated that although Form I-134 may continue to be used in situations not contemplated by INA §213A, the form does not legally bind the person who executes the I-134.28 The same statement also applies for the Form I-361, which is an affidavit of support filed in conjunction with Form I-360, Petition to classify an Amerasian child, son, or daughter.29 In the years that followed, enforcement suits have continued to be brought by sponsored immigrants rather than by the government as initially feared. In Cheshire v. Cheshire,30 the suit involved a couple that had divorced after the execution of the I-864. The plaintiff subsequently sued to hold the defendant liable for support based on the terms of the I-864. The defendant argued that the I-864 was an unconscionable or illusory contract and that it was akin to the previous Form I-134, making it unenforceable. The court held that "the very terms of Form I-864 bind defendant to provide plaintiff with the requisite amount of support."31 In Stump v. Stump, the US District Court for the Northern District of Indiana addressed the proper measure of damages in affidavit enforcement proceedings.32 In that case, one of first impression for the court, the plaintiff was awarded 125% of the Federal poverty line for a household of one person that corresponded to each year she was owed maintenance, less the income she received during that time. The court imposed no duty to mitigate, though such was considered to be "a basic tenant of contract law"33 by the court's own admission, and instead held that the sponsored immigrant's failure to "attain employment or otherwise [seek] to support herself" had no effect on her ability to enforce the affidavit of support.34 It is noteworthy that for I-864 purposes, a sponsor must demonstrate that he or she can sustain a household at 125% of the Federal poverty line, not each individual within the household. By treating the sponsored immigrant as a household of one and imposing no duty to seek to support his or herself, a sponsor could ultimately be required to pay out significantly more than his or her affidavit reflects. Recall also that the sponsor's obligations continue until the sponsored immigrant accrues 40 quarters of qualifying employment or naturalizes. Since naturalization is optional, a sponsor could be made to maintain a sponsored beneficiary that declined to work at 125% of the Federal poverty line indefinitely. These cases are notable for their consistent interpretation of the I-864's contractual nature and the relative nonexistence of affirmative defenses to a suit to enforce compliance. The cases also illustrate the unexpected twist in the story of the new affidavit of support in terms of who became the principal actor in the enforcement of the contract: the sponsored immigrant instead of the government. Enforcement actions for reimbursement by the government have been almost non-existent in large part due to political reasons. Case in point: Almost ten years after the I-864 appeared, on March 1, 2007, the Hartford Courant reported that the Department of Social Services (DSS) in Connecticut had begun to sue approximately 300 individuals who were I-864 sponsors where the beneficiaries had received public benefits.35 Until this date, this had been the only large scale government action to seek enforcement of the new affidavit of support. Fortunately, Connecticut's Attorney General requested DSS to halt its efforts to collect based on the I-864 due to "significant constitutional and legal issues, as well as policy questions." Other states, the article noted, have tended not to sue for enforcement for other reasons; "most states have chosen not to collect from sponsors, finding the process administratively burdensome and politically charged."36 Evolution of Form I-864 Ad Hoc Documentation Requirements In the early years after the I-864 appeared on the immigration landscape, application of the accompanying regulations shifted from lenient to strict adjudications. It was not uncommon for Legacy INS (and soon after USCIS) to initially accept I-864's with regular photocopies of the income tax returns from the last three taxable years, provided that W-2's or 1099's for the relevant years were attached. Issues emerged in local district offices pertaining to how many copies of the supporting financial documentation was needed. While some officers demanded a set of all documentation for each adjustment applicant in a family group, others were satisfied with one set for the main applicant. On May 18, 1998, Legacy INS issues guidance to avoid the unnecessary increase in the amount of paperwork required to be processed by the applicants and the adjudicators and thus minimized the requirement to one set.37 On occasion, the agency would issue Requests for Evidence (RFE) that asked for official transcripts generated by the Internal Revenue Service. This initial practice became standard policy across the agency soon after. And what resulted were unexpected and unfair delays in the processing of otherwise plain vanilla immediate relative cases. Legacy INS and USCIS also required, as initial evidence, the sponsor's pay stubs covering the six months prior to the execution of the I-864 and a letter from the sponsor's employer verifying the sponsor's continuing employment with the company. On the other hand, the U.S. Department of State (DOS), through the National Visa Center (NVC), exacted somewhat draconian measures to enforce INA §213A. Not only did NVC require either official transcripts of IRS Form 1040 from the last three taxable years (or photocopies of 1040's with W-2's or 1090's from the relevant years), they also imposed a USD$70 fee to process I-864's. In addition, the sponsor's previous 6 months' pay stubs and original employment verification letter were also required. Both Legacy INS, USCIS and DOS required, by virtue of Form I-864 itself, that the affidavit of support be acknowledged in the presence of an officer authorized to administer oaths or acknowledgments. Amid the chaos of uncertainty on the adjudications front, lost in the haze was INA Section 213A(f)(6)(B), which gave discretion to Legacy INS, USCIS and DOS to accept documentation from only the most recent taxable year.38 Similarly, the system lost sight of the fact that an individual, by virtue of executing Form I-864, made sworn attestations that the copies provided to support the submission of the I-864 were certified copies of the actual income tax returns. This would seem to obviate the need for the additional authentication most officers demanded.39 Nowhere in the law was it specified that the "certified copies" were required to be obtained from an official government agency, or that an official transcript of IRS Form 1040 was required. Public Charge Guidance Following Form I-864's creation and the first interim rule, the affidavit evolved in a piecemeal fashion. Bits and pieces were added or taken out of the form to satisfy adjudicatory requirements, which were based on anecdotes from both INS adjudicators and DOS consular officers. In 1999, Legacy INS released a Fact Sheet that touched upon technical aspects of the Form's required documentation and threshold standards for "public charge."40 The Fact Sheet was released in conjunction with proposed rules that sought to define what "public charge" was and included a listing what benefits would be considered to be means-tested. The Fact Sheet and the proposed rules were released due to public confusion over what benefits could sponsored immigrants partake of while not being labeled a public charge. The confusion stemmed from both IIRIRA and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The PRWORA, passed under the Clinton administration, reformed welfare law and imposed restrictions on the eligibility of immigrants, whether legal or illegal, for Federal, State, and local public benefits. The legislation was passed at a time when Congress was, for the first time in four decades, controlled by a conservative Republican base. Unfortunately, as a result of the legislation, many legal immigrants chose not to apply for benefits for which they were qualified, such as Medicaid, Food Stamps, and immunizations, because they were afraid of being labeled as public charges. While the regulation was never published in final form, the Fact Sheet remains a valuable source of information to determine whether a specific public benefit is means-tested or not. Death of a Sponsor Due to the length of processing times and the retrogression of visa numbers, it was not (and remains so) uncommon to find situations where the original petitioner died after the petition had been approved but prior to the grant of permanent residence either through Adjustment of Status or immigrant visa processing at a US Embassy/Consulate and subsequent entry into the country as a legal permanent resident. The issue also arises in follow-to-join cases where the petitioner dies after the intending immigrant's entry in legal permanent residence status but before the dependents' entry. Historically, the death of sponsor terminated the intending immigrant's application, and he or she would have to start anew with a new sponsor. This was (and remains) true if the sponsor's death occurred prior to the approval of the I-130.41 But if the sponsor's death occurred after the petition had been approved, INA Section 205 and its previous implementing regulations provided that a family-based petition could be reinstated if "humanitarian reasons" existed.42 If this "absolute" reinstatement was granted, automatic revocation of the family-based petition will not take place.43 Although humanitarian reinstatement was available, it was based solely on the Attorney General's absolute discretion, which made it extremely difficult to obtain. With the enactment of IIRIRA, absolute humanitarian reinstatement became useless once the I-864 requirement was created because there would be no one available to sign the I-864. To correct the inequity, Congress enacted the Family Sponsor Immigration Act of 2002,44 which maintained the "humanitarian reinstatement" element but, if satisfied, allowed the substitution of I-864 sponsors.45 Form I-864 substitution was permitted only if the new sponsor assumed the same contractual liability as the original sponsor. In a welcome provision, the statue permitted a new sponsor to be one of the following relatives of the beneficiary: 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.46 From a practice perspective, the new law posed limited benefits for Immediate Relatives who concurrently filed Form I-130 and I-485 with the I-864 at local district offices. These cases resulted in scheduled interviews and Form I-130 was never independently approved or released to the petitioner or the attorney of record. Thus, it remains better practice that where a sponsor's health is questionable in an Immediate Relative context, that only an I-130 be filed with the appropriate Service Center to ensure approval and possible I-864 substitution if the original sponsor dies subsequent to such approval. The Final Rule - Alternatives & Exceptions Death of a Sponsor - Revisited Prior to the enactment of the final rule, the issue of the sponsor's death and the impact on a filed but unapproved petition was revisited by the U.S. Court of Appeals for the 9th Circuit. In Freeman v. Gonzalez,47 a young woman's ability to remain in the U.S. was jeopardized by the sudden death of her new husband in a car accident. The deceased spouse had concurrently filed Forms I-130 and I-485 on the wife's behalf but remained unadjudicated at the time of his death. USCIS denied the petition on the basis that the death of the spouse automatically striped the wife of "married" status and was thus ineligible to proceed with the petition. The court found that:
"[T]he language, structure, purpose and application of the statute, that Congress clearly intended an alien widow whose citizen spouse has filed the necessary forms to be and to remain an immediate relative (spouse) for purposes of Section 1151(b)(2)(A)(i), even if the citizen spouse dies within two years of the marriage. As such, the widowed spouse remains entitled to the process that flows from a properly filed adjustment of status application."48The decision in Freeman overruled, at least for the 9th Circuit, the long line of cases that held that the death of a spouse prior to petition adjudication had to be denied.49 The 9th Circuit did not touch the law pertaining to approved petition and the subsequent death of the sponsor. However, the Final Rule50 was published two months after Freeman and almost ten years after the interim rule. Also, in a policy memorandum, USCIS limited Freeman's applicability to the 9th Circuit and the facts of the case.51 The final rule tackles many of the complaints that the public had regarding the adjudicative enforcement of INA §213A and provides guidance to both USCIS and DOS regarding the kind of documentation needed to show that an intending immigrant is nor likely to become a public charge. Widows & Widowers Although the court in Freeman acknowledged the separate rights to widows and widowers and the two-year marriage requirement,52 the final rule maintains its departure from Freeman. It relieves an intending immigrant of the I-864 requirement when the alien was the spouse of a US citizen, an immigrant petition was filed on behalf of the alien before the US citizen died and the marriage had lasted at least two years at the time of the petitioning sponsor's death. The final rule recognizes that a qualifying I-130 filed prior to the petitioner's death will be automatically converted to Form I-360,53 thus obviating the need for an I-864.54 Alternatives Along with the incorporation of many of the comments made during the "comment period", the final rule created 2 new forms, namely, Forms I-864EZ and I-864W. A sponsor may use Form I-864EZ if: (1) the sponsor is the I-130 petitioner,
(2) there is no joint sponsor,
(3) the affidavit of support is filed on behalf of only one intending immigrant,
(4) the sponsor qualifies based on his or her own income alone (assets not included), and
(5) all of the sponsor's income is reflected on the sponsor's W-2's.55 On the other hand, an intending immigrant may use I-864W to establish that the intending immigrant is not required to submit an I-864 because: 1) He or she has, or can be credited with, 40 quarters of coverage under the Social Security Act,
2) He or she is the child of a US citizen and will acquire US citizenship if the application for admission or adjustment of status is approved, or
3) Is the widow/widower of a US citizen or the battered spouse of child of a US citizen or legal permanent resident alien.56 It must be noted, however, that in cases where the intending immigrant is a child who will be adopted by US citizens after the child is admitted into the US or whose adoption occurred abroad, and the US citizen parents have not yet seen the child, an I-864 will still be required.57 Domicile As a general matter, only those sponsors who are domiciled in the US may file an affidavit of support. This was the rule under IIRIRA and remains the rule today.58 However, the final rule includes an exception that states that if a sponsor can prove "by a preponderance of the evidence, that the sponsor will establish a domicile on or before the date of the principal intending immigrant's admission or adjustment of status," said sponsor can sign and file an I-864.59 Thus, this modification softens the original rule. Multiple Sponsors The final rule also clarified the issue with respect to multiple sponsors.60 As a general rule, there can be no more than one joint sponsor. However, if the joint sponsor specifies precisely for whom he or she is sponsoring, a second joint sponsor can file an I-864 for the remaining family members. There can be no more than two joint sponsors per family group. As an illustration, consider this scenario: The intending immigrant, his spouse, son, and daughter need to be sponsored. Unfortunately, the petitioner cannot sponsor the entire family and seeks the help of Joint Sponsor A. Joint Sponsor A is financially able to sponsor only the intending immigrant and one dependent. Joint Sponsor A indicates specifically on the I-864 that she is sponsoring the intending immigrant and daughter. At this point, the petitioner seeks the help of Joint Sponsor B who is financially capable of sponsoring the spouse and son, and so indicates specifically on the I-864. Household Size Some of the difficulty with the previous I-864 was the determination of "household" size. The previous rule had an overly broad definition of "household" such that any one who was living at the same address as the sponsor was considered a member of the sponsor's household, when in fact, there were actually separate economic "households" living under the same roof that did not depend on each other for support.61 The final rule states that the household size shall include the sponsor, the sponsor's spouse, all of the sponsor's unmarried children below the age of 21 (except step-children who are not part of the sponsor's household, are not claimed as dependents by the sponsor for tax purposes, and are not seeking to immigrate based on the step-parent relationship), and all other persons claimed as dependents on the sponsor's income tax returns.62 Moreover, if the sponsor so chooses, relatives who reside in the same primary residence of the sponsor may be counted as part of the household if the sponsor intends to qualify by utilizing the income of these additional relatives.63 These additional relatives must then file Form I-864A, Contract Between Sponsor and Household Member. Lastly, the interim rule's requirement that the household member must have resided in the sponsor's household for at least six months prior to the sponsorship has been eliminated. Intending Immigrant's Income Another interesting change pertains to the use of the intending immigrant's income. Prior to the final rule, an intending immigrant whose income was included as part of the sponsor's household income in order to meet the minimum income levels under the Poverty Guidelines had to submit Form I-864A. Under the final rule, if the intending immigrant is either the spouse of the sponsor, or provides evidence that he or she will reside with the sponsor, and evidence is submitted that the intending immigrant's income will continue from the current source, the intending immigrant does not need to submit an I-864A. This exception does not apply if the intending immigrant has an accompanying spouse or children.64 The Controlling Year The final rule also clarifies that generally, the income noted on Form I-864 will be sufficient if it was sufficient to qualify under the Poverty Guidelines during the year in which the intending immigrant filed his or her immigrant visa or adjustment application.65 However, an exception is triggered if more than one year has elapsed since the filing of the I-864. In this instance, the government has discretion to require additional evidence if necessary to determine the continuing sufficiency of the sponsor's income.66 The same applies to the requirement regarding which version of the Poverty Guidelines is to be used.67 The final rule's Supplementary Notes indicate the basis for this exception is rooted in the Department of Homeland Security's (DHS) intent that a one-year delay between filing and adjudication of the immigrant visa or adjustment application will not routinely lead an RFE.68 The interim rule initially provided that the government could find an affidavit of support to be insufficient if the examining officer finds that there will be a likelihood that the sponsor would be unable to maintain his or her current income.69 The final rule, on the other hand, states that if the projected income for the year in which the intending immigrant filed the immigrant visa or adjustment application meets the applicable income threshold, the I-864 should be sufficient unless it is reasonable to infer that the sponsor will not be able to maintain his or her income at a level sufficient to meet the support obligations.70 Whether the slight change in wording of the rule will result in more acceptances of I-864's as filed or will continue the common practice of "discretion" being exercised to request more evidence to prove continuing income remains to be seen. Today, the only documentary requirements regarding the sponsor's income that need to be fulfilled through an I-864 is either an official transcript from the IRS or a photocopy of the 1040 along with copies of the W-2 and 1099 from the last taxable year. Gone are the days of the harsh ad hoc requirements that the sponsor submit pay stubs from the last six months and an original employment letter from the sponsor's employer. However, the instructions mention that if a sponsor wishes to submit additional documentation that tends to show how the public charge ground is overcome, sponsors are free to do so. Notarizations Due to the fact that the affidavit of support specifically states that the sponsor certifies, under penalty of perjury, that certain facts stated in the I-864 are true, and that the Federal income tax returns submitted are true copies, the final rule removed the requirement that the I-864 be notarized or acknowledged by an officer authorized to administer oaths or take acknowledgments.71 Significant Assets The final rule still allows sponsors to make use of "significant assets" in order to qualify. However, the major difference between the final rule and the interim rule is that now, in cases where the intending immigrant is the spouse or child of a US citizen, the significant assets requirement will be satisfied if the assets equal three times the difference between the applicable income threshold and the sponsor's actual income.72 All other cases that require an I-864 will retain the "five times the difference" rule.73 In cases where the intending immigrant is a child who will be adopted by US citizens after the child is admitted into the US or whose adoption occurred abroad, and the US citizen parents have not yet seen the child, an I-864 will still be required; however, if the sponsors do not meet the threshold based on their income alone, they may make use of significant assets that equal the difference between the applicable income level and their actual income.74 The final rule recognizes the differences in the length of obligations that sponsors will have to undertake in each of these cases. As the supplementary notes state:
In most cases, an alien is not eligible for naturalization until he or she has been a permanent resident for at least 5 years. It is likely, therefore, that the sponsor's obligation will last at least that long. One commenter did point out that the spouse of a citizen can naturalize after 3 years. Thus, the final rule modifies the "significant assets" requirement slightly.75Binding Contractual Timeline In contrast to the interim rule which did not specify when the obligation to support the intending immigrant starts, the final rule states that the obligation begins when the intending immigrant becomes a legal permanent resident based on an immigrant petition that included an I-864.76 The final rules, like the interim rules, state that the obligation ends when the sponsored immigrant becomes a US citizen,77 has worked or can be credited with 40 qualifying quarters of coverage under the Social Security Act,78 abandons or ceases to hold his or her status as a legal permanent resident,79 or dies.80 Unlike the interim rule, the final rule recognizes the situation where permanent residents are put in removal proceedings and qualify to adjust under some other family based petition. Thus, one more recognized method of terminating the obligations under an I-864 is when the alien obtains a new grant of adjustment of status in a removal proceeding and a new petition was filed on his or her behalf with a new I-864 81 Employment Sponsored Immigrants Finally, there is a slight modification of the I-864 requirement for those employment-based beneficiaries that own at least 5% of the business. The new rule favorably limits the instances where an affidavit would be necessary. For purposes of the affidavit of support, the final rule dictates that only where there is a "relative," which includes only those who can file an immigrant petition (U.S. citizens and green card holders) will an affidavit be required. But if the relative is in neither of these statuses, no I-864 will be required.82 CONCLUSION The trajectory of the affidavit of support from its harmless origins to its radical turn into a legally enforceable contract instilled the public with heightened fear and uncertainty. The evolution of the affidavit through interim rulemaking and policy guidance stirred it in an unexpected direction away from strict enforcement. It broadened the rules to allow substitution of sponsors and modified the documentation requirement. Reimbursement actions by the government also never really materialized, as originally feared. Instead, intending immigrants became the enforcement seekers in court. With the final rule, USCIS incorporated many of the public concerns voiced during the comment period. By understanding the experience of almost ten years of practice and listening to the public, USCIS was able to implement many welcomed changes in the final rule that will further simplify the use of the once ominous I-864 and help to enforce Section 213A of INA in a humane and fair manner.
End Notes1P.L. 104-208 (Sept. 30, 1996). 2INA §212 (a)(4) 3Beginning with Act of Aug. 3, 1882, 22 Stat. 214, through Immigration Act of March 3, 1891 (26 Statutes-at-Large 1084), Act of March 3, 1893 (27 Statutes-at-Large 570), Immigration Act of March 3, 1903 (32 Statutes-at-Large 1213), and the Immigration Act of February 20, 1907 (34 Statutes-at-Large 898). 4See also Michigan ex rel. Attorney General v. Binder, 356 Mich. 73, 96 N.W. 2d 140 (Mich. 1959); Dept. Manual Hygiene v. Renel, 10 Misc. 2d 402, 173 N.Y.S. 2d 231 (N.Y. App. Div. 1958) 5Barannikova v. Town of Greenwich, Et. Al., 299 Conn. 664 (1994) 6Though the US Constitution provides in the 14th Amendment that "no state shall… deny to any person within its jurisdiction the equal protection of the laws," it is recognized that sometimes, states may make classifications or distinguish between classes. There are three types of classes or classifications that the US Supreme Court has identified, namely, a) suspect classes, b) quasi-suspect, and c) all other classes that are not suspect or quasi-suspect. When a state makes distinctions within these classes, the courts will review these distinctions under different levels of scrutiny. In suspect classes, such as those based on race, alienage, or national origin, the strict scrutiny standard places the burden on the government to prove that the measure being challenged is necessary to achieve a compelling government interest [McLaughlin v. Florida, 379 U.S. 184 (1964)]. In quasi-suspect classes, such as those based on gender or illegitimacy, the intermediate scrutiny standard places the burden on government to prove that the measure is substantially related to an important government interest [Craig v. Boren, 429 U.S. 190 (1976)]. Lastly, in all other cases that do not deal with suspect or quasi-suspect classifications, such as age, poverty, or wealth, the rational basis scrutiny standard places the burden on the private individual to show that the measure is not rationally related to any legitimate government interest [Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)]. In cases where the charge is that the state has made a suspect classification, such as one based on alienage, the state is often in a losing battle since the strict scrutiny standard is seldom overcome by the government. 762 Fed. Reg. 54346; See also IIRIRA, Pub. L. No. 104-208, sec. 551(c)(1)-(2). 8INA § 213A(a)(1) 9INA § 212(a)(4)(C) 10INA § 212(a)(4)(D) 118 CFR § 213a.1 12INA § 213A(f)(1)(D). 13Unless sponsoring jointly, see INA § 213A(f)(2) 14INA § 213A(f)(1); individuals serving in active duty in the Armed Forces were only required to demonstrate means to maintain an annual income at 100% of the Federal poverty line if petitioning for their spouse or children. 15See INS Interim Rule on Affidavit of Support, 62 Fed. Reg. 54346, 54347, October 20, 1997. 16Id at 54348. 17Id. Additionally, the sponsor's income could be supplemented by the income of his or her spouse without filing Form I-864A, or by the income of other individuals related to the sponsor by birth, marriage, or adoption that had lived in the sponsor's residence for the 6 previous months, or who were listed on the sponsor's most recent income tax return, if they signed an I-864A. Id. 18There is no statutory or regulatory requirement regarding liquidity, but the instructions of Form I-864 specifically note that "only assets that can be converted to cash within one year and without considerable hardship or financial loss to the owner may be included." Clearly, the purpose for including such a requirement is to ensure that assets declared can actually be used to support the intending immigrant. It is unclear, however, whether a court would uphold a decision by an adjudicator to deny permanent residency based on a subjective notion of whether a particular asset that brings the sponsor over the 125% poverty line can be converted into cash within a year. 19INS Interim Rule on Affidavit of Support, supra at 54349. This would ensure that the immigrant could be maintained until his or her length of residency allowed him or her to naturalize, and it also coincided with the five year term during which immigrants were no longer eligible for any Federal means-tested public benefits under section 403(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-109. 20INS Interim Rule on Affidavit of Support, supra at 54348. 21INA §213A(d)(1) 22INA §213A(d)(2) 23INS Interim Rule on Affidavit of Support, supra at 54349. 24INA § 213A(a)(2) and (3). 25Tornheim v. Kohn, 2002 U.S. Dist. LEXIS 27914 (USDC EDNY, 2002). 26INS Interim Rule on Affidavit of Support, supra. 272002 U.S. Dist. LEXIS 27914 at 7-11. 288 CFR § 213a.5 29Id. 30Cheshire v. Cheshire, 2006 U.S. Dist. LEXIS 26602 (M.D. Fla. 2006). 31Id. at 9. See also, Schwartz v. Schwartz, 2005 U.S. Dist. LEXIS 43936 (USDC, WD Wyoming, May 10, 2005), where the court held that the literal wording of the INA, departmental regulations, and Form I-864 itself demonstrate enforceability, and that neither divorce nor non-receipt of means-tested public benefits is a bar to relief under INA § 213A. 32Stump v. Stump, 2005 U.S. Dist. LEXIS 26022 (N. Dist. Ind. 2005). 33Id. at 20. 34Id. at 19. 35See Anne Marie Soma, State Suing Immigrants' Sponsors: Controversy Centers on Public Assistance, Hartford Currant (Mar. 01, 2007), available at http://pqasb.pqarchiver.com/courant/access/1225313941.html?dids=1225313941:1225313941&FMT=ABS&FMTS=ABS:FT&type=current&date=Mar+1%2C+2007&author=ANN+MARIE+SOMMA&pub=Hartford+Courant&edition=&startpage=A.1&desc=STATE+SUING+IMMIGRANTS%27+SPONSORS+ 36 Id. 37See 63 FR 27193 (May 18, 1998). 38INA § 213A(f)(6)(B). 39INA § 213A(f)(6)(A)(i). 40See USCIS "Fact Sheet," May 25, 1999, available at http://www.uscis.gov/files/article/public_cfs.pdf A discussion on how this position evolved appears in the section analyzing the 2006 final rule below. 41Neither Legacy INS or USCIS have authority to grant a petition where the sponsor died prior to adjudication. Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993); See also Matter of Sano, 19 I & N Dec. 299 (BIA 1985), and Matter of Varela, 13 I & N Dec. 453 (BIA 1970). 42See previous version of 8 C.F.R. §205.1(a)(3)(i)(C), which stated that revocation was automatic "Upon the death of a petitioner, unless the Attorney General in his or her discretion determines that for humanitarian reasons revocation would be inappropriate." 43Id. 44P.L. 107-150. 45INA 213A(f)(5)(B)(i); 8 C.F.R. §213a.2(c)(2)(iii)(D). See also "INS Memorandum: Policy Change -Public Law 107-150, the Family Sponsor Immigration Act of 2002: Use of Substitute Sponsor if Visa Petitioner Has Died," Johnny N. Williams, Executive Associate Commissioner, Office of Field Operations, HQADJ 70/21.1.13 (June 15, 2002). 46INA § 213A(f)(5). 47444 F.3rd 1031 (9th Cir, 2006). Freeman also dealt with whether the Visa Waiver Program, in which she entered the U.S., prevented her to challenging the government's action by virtue of her 'waiver' of rights by using the program. This issue is beyond the scope of this article and the discussion above omits it. 48Id. 49See Dodig v. INS, 9 F.3rd 1418 (9th Cir. 1993); Matter of Sano, 19 I & N Dec. 299 (BIA 1975); Matter of Varela, 13 I & N Dec. 453 (BIA 1970). 5071 FR 35732. The US Department of State implemented the final rule through Cable notification No. 2006-State-051172. See, 83 Interpreter Releases 654 (April 10, 2006). 51USCIS Memorandum by Michael Aytes, "Effect of Form I-130 Petitioner's Death on Authority to Approve the Form I-130." HQDOMO 130/1.3 (November 8, 2007). 52Freeman supra. 538 CFR 204.2(i)(1)(iv); Form I-360 is the form used by a self-petitioning Amerasian, widow(er) of a US citizen, or Special Immigrant 54See Aytes memo, supra. 558 CFR 213a.2 (a)(1)(i)(A) and instructions for Form I-864EZ 568 CFR 213a.2 (a)(1)(i)(B) 578 CFR 213a.2 (a)(2)(ii)(E) 588 CFR 213a.2 (c)(1)(i)(B) 598 CFR 213a.2 (c)(1)(ii)(B) 608 CFR 213a.2 (c)(2)(iii)(C) 6171 FR 35736 628 CFR 213a.1 638 CFR 213a.1 648 CFR 213a.2 (c)(2)(i)(C)(1) and (3) 658 CFR 213a.2 (a)(1)(v)(A) 668 CFR 213a.2 (a)(1)(v)(B) 678 CFR 213a.2 (a)(1)(v)(A) and 8 CFR 213a.2 (a)(1)(v)(B) 6871 FR 35737 698 CFR 213a.2 (c)(2)(v) of the interim rul 708 CFR 213a.2 (c)(2)(ii)(C) 71The new Form I-864 has deleted the notary's jurat block 728 CFR 213a.2 (c)(2)(iii)(B)(1) 738 CFR 213a.2 (c)(2)(iii)(B)(3) 748 CFR 213a.2 (c)(2)(iii)(B)(2) 7571 FR 35739 768 CFR 213a.2 (e)(1) 778 CFR 213a.2 (e)(2)(i)(A) 788 CFR 213a.2 (e)(2)(i)(B) 798 CFR 213a.2 (e)(2)(i)(C) 808 CFR 213a.2 (e)(2)(i)(E) 818 CFR 213a.2 (e)(2)(i)(D) 828 CFR 213a.2 (a)(2)(i)(C) © 2007 by Rómulo E. Guevara and Frederick F. Calope. Reprinted with permission. This version has been slightly modified from the initial version published at 84 Interpreter Releases 2849 (December 10, 2007).
Editor's Note: The last name of Mr. Guevara was misspelled due to an production error and was corrected on July 17, 2008.
Romulo E. Guevara is an associate attorney with Fragomen, Del Rey, Bernsen & Loewy, LLP in Phoenix, Arizona. Rómulo is a frequent contributor of articles to a variety of immigration law journals, and speaks at immigration conferences for the immigration bar and private organizations. He is a graduate of Hofstra University School of Law in New York and has been practicing immigration law since 1997. Rómulo is originally from El Salvador.Frederick F. Calope is an associate attorney with Fragomen, Del Rey Bernsen & Loewy, LLP in Phoenix, Arizona. Fred is a 2001 graduate of the Ateneo de Manila University Law School in the Philippines. As a lawyer in the Philippines he practiced labor & employment law and immigration law. Fred is admitted to the Ohio Bar and the Philippine Bar. The authors would like to thank Craig Waugh, law graduate from Georgetown University Law School, for his invaluable assistance during the preparation of this article.
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