An Applicant/Beneficiary for an immigrant visa or for adjustment of status must demonstrate that he or she is not inadmissible due to his or her likelihood to become a public charge. This requirement is based upon the U.S. government’s concern that Applicants/Beneficiaries will become lawful permanent residents and then become reliant on public benefits such as the Supplemental Nutrition Assistance Program (SNAP or “food stamps”) or Temporary Assistance for Needy Families (TANF) for financial support.
In order to address this concern, the Petitioner sponsoring the Applicant/Beneficiary (often their U.S. citizen or Lawful Permanent Resident spouse, child or parent) must show that they have sufficient income to support the Applicant/Beneficiary of the petition.
Petitioners provide evidence of their income by filing Form I-864, Affidavit of Support, along with proof of their income. If the Petitioner’s income is insufficient, a Joint Sponsor may complete and sign a second Form I-864, Affidavit of Support, to help the Petitioner meet the income requirements.
When Petitioners and Joint Sponsors sign an Affidavit of Support, they enter a contract with the U.S. government. Under this contract, the sponsor is required to provide the immigrant with any support necessary to maintain them at an income of at least 125 percent of the Federal Poverty Guidelines.
If the Applicant/Beneficiary obtains a public benefit from a federal, state, or local agency, that agency can request reimbursement from the Petitioner/Joint Sponsor for the amount of the benefits provided. If the sponsor fails to reimburse the agency, the agency can sue the Petitioner/Joint Sponsor for reimbursement. If the court enters a judgment against the Petitioner/Joint Sponsor, he or she can be held responsible for the amount to be reimbursed to the agency, plus any costs of collection, including attorney fees.
A sponsor’s obligations under Form I-864 do not end until the Applicant/ Beneficiary either: 1) becomes a U.S. citizen, 2) has worked, or can receive credit for, 40 quarters of coverage under the Social Security Act, 3) no longer has lawful permanent resident status and has departed the U.S., 4) is subject to removal but is granted adjustment of status based on a new affidavit of support, or 5) dies.
On May 23, 2019, President Trump issued a Presidential Memorandum ordering the Secretaries of Agriculture and Health and Human Services to take steps to enforce sponsors’ obligations based on their Affidavits of Support within 90 days.
Although agency power to seek reimbursement for public benefits provided to beneficiaries of immigrant visas existed previously, the Presidential Memorandum signals the beginning of an era of increased enforcement of a Petitioner or Joint Sponsor’s financial obligations under Form I-864, Affidavit of Support.
Petitioners and Joint Sponsors should ensure that they understand their legal obligations prior to signing an Affidavit of Support, and should consult with independent legal counsel regarding these obligations prior to signing the Form I-864.
For more information on Affidavits of Support, immigrant visa processing and adjustment of status please contact Kolko & Casey, P.C.
