DHS Publishes Proposed Changes to I-864 Affidavit of Support in Federal Register

In this post we discuss a new proposed rule published by the Department of Homeland Security (DHS) that seeks to amend regulations governing Form, I-864 Affidavit of Support. The I-864 Affidavit of Support is a required form that must be completed by the person petitioning the foreign national, in order for their relative to immigrate to the United States. The petitioner must attest that they meet the income requirement based on their household size to sponsor the foreign national. Petitioners who are unable to meet the income requirement, must obtain a joint sponsor who does meet this requirement.

Essentially, when the petitioner or joint sponsor signs the affidavit of support, he or she is entering into an enforceable contract with the U.S. government, in which they agree to use their financial resources to support the beneficiary named in the affidavit of support. Where the beneficiary seeks public benefits from a government agency, the petitioner or sponsor can be held legally responsible for repaying those costs to the government agency.

The rules and regulations governing the affidavit of support have recently come under fire during the Trump administration. The President has consistently pushed for stricter enforcement of a sponsor’s obligations, requiring government agencies to hold sponsors liable for any benefits paid out to beneficiaries of an affidavit of support.

What is the New Rule About?

On October 2, 2020 DHS announced a proposed rule that (1) clarifies how a sponsor must demonstrate that he or she has the means to maintain income (2) revises documentation that sponsors and household members must meet as evidence of their income (3) modifies when an applicant is required to submit an Affidavit from a joint sponsor and (4) updates reporting and information sharing between government agencies.

Changes to Documentation Required of Sponsors

The proposed rule updates the evidentiary requirements for sponsors submitting an Affidavit, to “better enable immigration officers and immigration judges to determine whether the sponsor has the means to maintain an annual income at or above the applicable threshold, and whether the sponsor can, in fact, provide such support to the intending immigrant and meet all support obligations during the period the Affidavit is in effect.”

Specifically, this proposed rule would require sponsors and household members who execute an Affidavit or Contract to provide Federal income tax returns for 3 years, credit reports, credit scores, and bank account information.

Receipt of Means-Tested Benefits May Disqualify Sponsor

The proposed rule also seeks to change the regulations to specify that a sponsor’s prior receipt of any means-tested public benefits and a sponsor’s failure to meet support obligations on another executed Affidavit, or household member obligations on a previously executed Affidavit of Support, will impact the determination as to whether the sponsor has the means to maintain the required income threshold to support the immigrant.

The new rule provides that the receipt of means-tested public benefits by a sponsor may indicate that the sponsor does not have the financial means to maintain an annual income equal to at least 125 percent of the Federal poverty line, or 100 percent of the Federal poverty line for an individual who is on active duty (other than active duty for training) in the Armed Forces of the United States and who is petitioning for his or her spouse or child, etc.

Additionally, whether a sponsor has previously failed to fulfill his or her support obligations will be relevant to determining whether the sponsor will meet future support obligations.

Applicants submitting an application for an immigrant visa or adjustment of status on or after the effective date of the proposed rule would be required to submit a Form I-864 executed by a joint sponsor if a petitioning sponsor or substitute sponsor received any means-tested public benefits on or after the effective date of this rule and within the 36-month period prior to executing the Affidavit, or if the petitioning sponsor or substitute sponsor had a judgment entered against him or her at any time for failing to meet any prior sponsorship or household member obligation.

New Rules for Joint Sponsors

Furthermore, this proposed rule would only allow an individual to be a joint sponsor if he or she has neither received means-tested public benefits on or after the effective date of this rule and within the 36 month period prior to executing the Affidavit, nor had a judgment entered against him or her at any time for failing to meet a prior sponsorship or household member obligation.

New Rules for Household Members

The rule also seeks to revise the current regulatory requirements concerning who can qualify as a household member for purposes of submitting and executing a Form I-864A.

Currently, there is no limitation on the number of household members who may execute a Form I-864A.

DHS intends to permit only a sponsor’s spouse or an intending immigrant with the same principal residence (same principal residence upon immigrating, in the case of an intending immigrant consular processing) as the sponsor to execute Form I-864A.

Communication Between Agencies

The rule would also update and improve how means-tested public benefit-granting agencies obtain information from USCIS and how they can provide information to USCIS.

The current regulations require a duly issued subpoena before USCIS can provide a certified copy of the Form I-864 or Form I-864EZ for use in any action to enforce the support obligation.

The new rule would eliminate the subpoena requirement and instead allow requesting parties to submit a formal request for an Affidavit or a Contract to USCIS using a new form created by DHS, called “G-1563, Request for Certified Copy of Affidavit of Support Under Section 213A of the INA or Contract Between Sponsor and Household Member.”

DHS also proposes to revise the process for informing USCIS about judgments obtained against sponsors and indigency determinations to give USCIS flexibility to determine a more efficient mechanism for information reporting.

The current regulations require that copies of judgments and indigency determinations must be mailed to a specific USCIS office in Washington, DC. The new rule would remove this requirement and permit USCIS to provide a different mechanism for submitting copies of judgments and indigency determinations.

Why was this rule passed?

According to DHS the purpose of the proposed rule is to better ensure that all sponsors, as well as household members, who execute the Affidavit of Support have the means to maintain income at the applicable income threshold and are capable of meeting their support obligations.

By requiring sponsors and/or household members to submit additional documentation immigration will have, “a more complete picture of the sponsor’s and household member’s financial situation would help immigration officers and immigration judges determine whether the sponsor can meet the requirements.”

Furthermore, DHS seeks to allow public government agencies to more easily obtain information from USCIS in order to enforce the obligations of a joint sponsor and seek reimbursement where the sponsored immigrant has received means-tested public benefits.

Where can I submit a public comment?

The government is accepting public comments on this proposed rule until November 2, 2020.

You may submit comments on the proposed rule, identified by DHS Docket No. USCIS-2019-0023, through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the website instructions for submitting comments.

What happens next?

After the comment period has closed on November 2, 2020, the government will review and take public comments into consideration while drafting the final rule. Once a final rule is published in the federal register it will become effective 60 days after its publication.

Once the final rule is released, we will provide further updates on our blog.

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