The Department of Homeland Security (hereafter “DHS” or its agency “USCIS”) proposes significant revisions to the regulations governing the Affidavit of Support (I-864). These proposed revisions published on October 1, 2020, are set to take effect within 30 to 60 days from their publication.
What is the Affidavit of Support?
The affidavit of support, Form I-864, Affidavit of Support under Section 213A of the INA, is a contract an individual (the sponsor) signs agreeing to use their financial resources to support the intending immigrant named on the affidavit. The sponsor is usually the petitioner who filed an immigrant petition on behalf of the intending immigrant. USCIS uses Form I-864 to assess whether the sponsor has sufficient income to support the intending immigrant.
The Sufficiency Test for Sponsorship
At stake is whether a given Affidavit or Contract is determined to be insufficient. But an insufficient Affidavit or Contract does not automatically result in public charge inadmissibility. Rather, a negative determination with respect to an Affidavit or Contract means that the applicant needs to find a joint sponsor. Without underestimating the very real difficulty that may present in many cases, addressing an insufficient form I-864 is less onerous than overcoming public charge inadmissibility. The public charge inadmissibility ground is assessed through the new USCIS Form I-944.
Under the current regulations, an assessment of whether the sponsor’s income is at or above 125% of the poverty guideline meets the sufficiency test for sponsorship. If the sponsor is below this threshold, a joint sponsor is required. USCIS currently accepts evidence such as the most recent IRS Form 1040 or transcript.
Under the proposed rule, however, income at or above 125% of the poverty guideline for the current year will not per se be sufficient. USCIS will also consider some discretionary factors that can lead to negative sufficiency finding. For example, an Affidavit of Support will automatically be found insufficient if the sponsor has received means-tested public benefits in the 36-month window before filing the Affidavit. In addition, under the proposed rule, a negative finding on an Affidavit is required if a judgment has been entered against the sponsor for “failing to meet the support or reimbursement obligations under an existing Affidavit of Support.” While these judgments are currently uncommon, there might be more enforcement judgments in the future as the proposed rule intends to make the I-864 enforcement easier.
Under the proposed rule, an adjudicator may consider facts, “that suggests that the sponsor cannot maintain income at the income threshold for the sponsor’s household size.” These facts include: (1) a “material change” in employment or income history; (2) the number of Form I-864 or I864A beneficiaries for whom the support obligation has not yet commenced; and (3) “[a]ny other relevant facts.”
USCIS will require additional evidence to support the affidavit of support. The following evidence might be required under the proposed rule: (1) Three years of certified returns or transcripts; (2) credit report; and (3) bank account information.
Enforcement of Form I-864
The Form I-864 is a contract that the sponsor (and joint sponsor, when applicable) signs with the government. Under the existing rule, in order to enforce Form I-864 a judicial subpoena is generally required to release the sponsor and (joint sponsor) information. With the proposed rule, the government will only need to file Form G-1563 for the release of Form I-864, last address and social security number.
If you are planning of filing an immigration petition that requires sponsorship through Form I-864, contact the attorneys at Patel Law Group for a legal consultation: mmutombo@patellegal.com or cprescott@patellegal.com