New Affidavit Of Support

In enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Congress amended the “public charge” ground of exclusion. The effect of this amendment will be to place a substantial burden on all family-based immigrant visa petition sponsors. The amendment will preclude prospective immigrants who stand no real likelihood of becoming a “public charge” from immigrating through sponsorship by their family members.

The “public charge” ground of inadmissibility provides that immigrants must show that they are not likely to become a “public charge” and rely on the taxpayers of the United States for their financial support. Under the new amendment to this provision, all persons who wish to sponsor a family member for immigration to the United States must execute an affidavit of support on the family member’s behalf. The affidavit of support will be required with all applications for immigrant visas or adjustment of status filed on or after December 19, 1997. Applicants who fail to present an affidavit of support on their behalf will be found inadmissible on “public charge” grounds and their applications for adjustment denied, regardless of the applicant’s own personal income or financial assets.

The affidavit of support is a legally-binding contract between the petitioning relative (“sponsor”), the sponsored immigrant, and any government agencies that are involved in granting public assistance. The petitioning relative must agree to be bound to provide the sponsored immigrant with an income of at least 125 percent of the federal poverty line, which is determined annually by the Department of Health and Human Services.

The sponsor can be either a spouse, parent, child or sibling. However, in order to submit an affidavit of support and obtain immigration benefits for a relative, the sponsor must be at least 18 years of age, have his or her principal place of residence in the United States and have the intent to continue living here. The sponsor must prove his or her ability to support the sponsored immigrants through copies of the sponsor’s federal income tax returns for the three most recent taxable years.

The sponsor’s ability to provide support is determined by calculating the household income and the household size. The sponsored immigrant meets the income requirement if the household income is greater than 125 percent of the poverty level for the household size. The household size includes the sponsor, the sponsor’s spouse and children, the persons claimed as dependents on the sponsor’s income tax return, previously sponsored immigrants and the immigrants to be presently sponsored. The household income includes the sponsor’s income and the income of his or her spouse or child who have either been living in the sponsor’s residence for the past six month or are the sponsor’s lawful dependents.

The sponsored immigrant’s income may be used to calculate the household income but only if she or he meets either the six months or dependent test. This provision places a severe burden on sponsored immigrants because it requires six months joint residence even in situations where the sponsored immigrant is the primary income-earner in the family. Additionally, this requirement makes it impossible for sponsored immigrants living outside the country but with employment offers in the United States to use the income available from present employment to satisfy the household income requirement. Finally, household members whose income will be relied upon to meet the income requirement have to agree to assist the sponsor to the extent necessary to maintain the sponsored immigrant at the required income level. These individuals will be liable alone or liable along with the sponsor for the amount of support and the amount of any reimbursement of public benefits which the sponsor may have to pay.

The amendment to the “public charge” provision places tough, unnecessary penalties on the sponsors. If the sponsor fails to file a change of address within the required period of time, the sponsor is liable for fines of at least $250 and as much as $2000. Alternatively, if the sponsor’s failure to notify INS of the change of address occurs with the sponsor’s knowledge that a sponsored immigrant has received public assistance, the penalty is $2,000 to $5,000.