Tag Archive for: Affidavit of Support

David Isaacson

My Comment on Proposed Affidavit of Support Revisions – Do You Have One Too?

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USCIS has recently proposed changes to the Form I-864, Affidavit of Support Under Section 213A of the Act, which is used by petitioners in family-based immigration cases and certain employment-based immigration cases to promise to provide required support to an immigrant as required under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Similar changes are also proposed to the related Form I-864EZ, a simplified version of the affidavit of support for certain sponsors with straightforward tax situations, and Form I-864A Contract Between Sponsor and Household Member, used when the income of a household member other than the sponsored immigrant is to be counted towards meeting the minimum income requirement.

To summarize, in addition to changing language throughout the form and instructions in what USCIS claims is an effort “to better inform sponsors and household members of their support obligations”, USCIS has proposed substantive changes to the way in which the forms must be executed and the information that will need to be provided in them. USCIS has proposed to add the requirement that the forms be executed before a notary public, and that bank account information be collected from the sponsor or household member. There will also be an option for the sponsor or household member to submit a credit report.

Public comments on the proposed changes, according to USCIS, “are encouraged and will be accepted until May 11, 2020.” Comments can be submitted online at regulations.gov with reference to OMB Control Number 1615-0075, agency name/Docket ID USCIS- 2007-0029.

I have submitted a comment, which seemed worth reproducing here even though in principle it is available to the public already on regulations.gov. I would encourage readers who have their own concerns about the proposed revisions to submit comments as well. (A note, however, for anyone who agrees with my comment and was thinking of resubmitting it verbatim: identical comments are likely to be ignored, so it is better if you add or alter something to express your own views and not just mine.) My comment was as follows:

I write to comment regarding OMB Control Number 1615-0075, agency name/Docket ID USCIS- 2007-0029.

The proposed requirement that an I-864, I-864EZ or I-864A be notarized by a notary public would be in violation of federal statute, specifically section 1746 of Title 28, United States Code. That section provides:

“Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).

(Signature)”.
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

(Signature)”.”

Congress has determined that in matters subject to federal law and regulation, any affidavit which would ordinarily be required to be taken before a notary public may instead be substituted “with like force and effect” by an unsworn declaration under penalty of perjury including the appropriate language. USCIS has no authority to override this statute through a change in form instructions, If the instructions are not altered to allow for the possibility of an unsworn declaration under penalty of perjury pursuant to 28 USC 1746, rather than a notarization, they will be in violation of the law.

USCIS is well aware of how to offer the option of a statement under penalty of perjury pursuant to 28 USC 1746 instead of a notarized signature. Page 4, Part 4 of the Form G-639, Freedom of Information/Privacy Act Request, contains precisely this option. If USCIS insists on adding notarization or the equivalent to Forms I-864, I-864A, and I-864EZ, then it must provide the same option as on the G-639.

The proposed requirement to provide bank account information is also in severe tension with the statute. 8 USC 1183a(g)(6) clearly provides that certified copies of tax returns, accompanied by a written statement under oath or under penalty of perjury under section 1746 of title 28 regarding such copies, are the primary means of demonstrating means to maintain the required level of income, and that the possibility of proving assets is an additional form of “flexibility” offered where necessary:

“(6) Demonstration of means to maintain income
(A) In general
(i) Method of demonstration

For purposes of this section, a demonstration of the means to maintain income shall include provision of a certified copy of the individual’s Federal income tax return for the individual’s 3 most recent taxable years and a written statement, executed under oath or as permitted under penalty of perjury under section 1746 of title 28, that the copies are certified copies of such returns.

(ii) Flexibility

For purposes of this section, aliens may demonstrate the means to maintain income through demonstration of significant assets of the sponsored alien or of the sponsor, if such assets are available for the support of the sponsored alien.”

It does not demonstrate “flexibility” to require sponsors, or sponsored aliens, to prove their assets or related information in circumstances where the certified copies of the sponsor’s tax returns provided under 8 USC 1183a(g)(6) already establish ability to maintain sufficient income. Doing so is therefore inconsistent with the statutory structure.

Moreover, there are good practical reasons for sponsors not to want to provide information regarding their bank accounts unnecessarily. In the event of lost or misdirected mail, for example, such information could facilitate the theft of funds from the sponsor by anyone who were to inappropriately come into possession of the I-864, I-864A or I-864EZ. USCIS has no statutory basis to impose this risk on those who can demonstrate sufficient income through their tax returns.

These proposed changes appear to represent an inappropriate effort by USCIS to hinder family-based immigration authorized by Congress, without statutory authority to do so. They should be rejected.

Cyrus Mehta

State Department’s Change To Public Charge Guidance In Foreign Affairs Manual Will Result in Many More Visa Refusals

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The Trump Administration has opened another front in its war on legal immigration to the United States, which is to broaden the definition of who is likely to become a public charge.  One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of status to permanent residence within the United States.  This proposal is still in draft format and has not yet become a rule. However, if and when it does become a rule, foreign nationals who rely on government benefits will be more at risk of being found inadmissible under the public charge ground. Current policy allows officials to consider only two types of public benefits that would result in a negative public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense.

While the Trump administration’s proposed regulatory change is winding its way through bureaucratic channels, the State Department’s Foreign Affairs Manual (FAM), which is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad, has already made it easier to find visa applicants inadmissible under the public charge ground. The State Department can freely change the FAM at its choosing without even providing notice to the public or an opportunity to comment.

Under INA 212(a)(4), a foreign national seeking to be admitted to the United States as either a nonimmigrant or an immigrant will be found inadmissible if he or she is likely to become a public charge at any time. The law allows officials to look at a foreign national’s age, health, family status, assets, resources and financial status; and education and skills.

Pursuant to INA 213A, a properly executed affidavit of support by a US sponsor, Form I-864, may overcome a public charge determination in all family immigration and in some employment-based cases. An I-864 clearly constitutes a contract between the sponsor and the government. See INA 213A(a)(1)(B).

The State Department at 9 FAM 302.8-2 (amended on 1/3/2018) broadened the ability of a consular officer to make a public charge determination, rendering it easier to refuse an immigrant visa. Specifically, new 9 FAM 3012.8-2(B)(2) provides:

  1. In General:
    1. In making a determination whether an applicant is inadmissible under INA 212(a)(4)(B), in every case you must consider at a minimum the applicant’s:
      1. Age;
      2. Health;
      3. Family status;
      4. Assets, resources, and financial status; and
      5. Education and skills.
    2. These factors, and any other reasonable factors considered relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.
    3. Value of the Affidavit of Support: A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the “totality of circumstances” analysis, which requires the consideration of the factors listed in paragraph (1) above.

Under the new FAM guidance, a properly executed Form I-864 will only be considered “a positive factor in the totality of circumstances” even though it is a binding enforceable contract that allows the government agency to claim reimbursement of the cost of the benefit that was provided to the foreign national. Compare the new language with the January 19, 2017 version of the public charge definition in the FAM,  available at https://web.archive.org/web/20170119231252/https://fam.state.gov/FAM/09FAM/09FAM030208.html, which was just before the start of the Trump administration

The old 9 FAM 302.8-2(B)(3)(a.)(2) stated:

2. These factors, and any other factors thought relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.  As noted in 9 FAM 302.8-2(B)(2), a properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis.  Nevertheless, the factors cited above could be given consideration in an unusual case in which a Form I-864 has been submitted and should be considered in cases where Form I-864 is not required.

See also the old 9 FAM 302.8-2(B)(2)(c):

 Effect of Form I-864 on Public Charge Determinations:  A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to overcome the INA 212(a)(4) requirements.  In determining whether the INA 213A requirements creating a legally binding affidavit have been met, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor – the affidavit is enforceable regardless of the sponsor’s actual intent and should not be considered by you, unless there are significant public charge concerns relating to the specific case, such as if the applicant is of advanced age or has a serious medical condition.  If you have concerns about whether a particular Form I-864 may be “fraudulent”, you should contact CA/FPP for guidance.

Under the new FAM guidance, a non-fraudulent I-864 will no longer be considered sufficient to overcome the public charge requirements under INA 212(a)(4). Pursuant to the old FAM guidance, the credibility of an offer of support from a person who met the definition of a sponsor and who had verifiable resources was not a factor. A DOS official at the Federal Bar Association’s Immigration Conference on May 18 and 19, 2018 in Memphis, TN confirmed that the I-864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors. DOS will look behind the affidavit of support if the consular officer believes that the sponsor is not likely to comply with his or her obligations. By way of an example, according to the DOS official, if a co-sponsor has already executed other I-864s in the past, then that will be viewed as an adverse factor. (See Lily Axelrod’s excellent summary of the proceedings of the FBA immigration conference on the Cool Immigration Lawyers page on Facebook).

The I-864 has always been thought of as a binding contract between the sponsor and the government, and thus discrediting an I-864 that is otherwise non-fraudulent seems to undermine the contractual nature of the I-864. Even if a sponsor has executed other I-864s in the past, that should not result in an adverse credibility determination if the sponsor has sufficient documented income to meet 125% of the federal poverty guidelines based on his or her household size. Under the new FAM provisions, deeming a properly executed I-864 as overcoming public charge will no longer be the case.

Indeed, the change to the public charge definition in the FAM is causing additional havoc to otherwise eligible applicants for immigrant visas. Those who already got approved I-601A provisional waivers to overcome the 3 or 10 year bars under INA 212(a)(9)(B)(i) and have proceeded overseas to process their immigrant visas are now finding themselves being found inadmissible for likely becoming a public charge under INA 212(a)(4). If the visa applicant is found inadmissible for another ground other than under INA 212(a)(9)(B)(i), the I-601A waiver is revoked and the applicant has to file a new I-601 to again overcome the 3 or 10 year inadmissibility bars under INA 212(a)(9)(B)(i) even if the applicant is able to overcome the public charge ground by providing additional evidence. This can cause a delay of at least a year and result in uncertainty until the new I-601 is approved. One suggested way to ameliorate this unnecessary hardship is to issue an INA 221(g) letter requesting evidence to overcome the public charge ground rather than a flat out refusal under INA 212(a)(4).

The new FAM assessment of public charge also appears to run contrary to 8 CFR 213a.2(c)(2)(iv), which provides:

Remaining inadmissibility on public charge grounds. Notwithstanding the filing of a sufficient affidavit of support under section 213A of the Act and this section, an alien may be found to be inadmissible under section 212(a)(4) of the Act if the alien’s case includes evidence of specific facts that, when considered in light of section 212(a)(4)(B) of the Act, support a reasonable inference that the alien is likely at any time to become a public charge.

While it may be permissible under 8 CFR 213a.2(c)(2)(iv), to find public charge inadmissibility despite a proper affidavit of support, it has to be based on “evidence of specific facts” that “support a reasonable inference that the alien is likely . . . to become a public charge.” The new FAM guidance on the other hand considers a non-fraudulent I-864 only as a positive factor in the totality of circumstances, which includes the foreign national’s age, health, family status, assets, resources and financial status and education and skills.

Applicants should no longer assume when they process an immigrant visa at a US consulate that an I-864 will be deemed to overcome a public charge finding. The visa applicant must also demonstrate his or her own history of employment, or ability to obtain employment, along with prior tax filings. The visa applicant must also be ready to demonstrate a meaningful relationship with a co-sponsor, if there is one.  Finally, the I-864 must be accompanied by the required corroborating documentation pertaining to the sponsor such as tax returns, employment documents and evidence of assets, if applicable. Nothing should be taken for granted under the Trump administration, whose avowed objective is to restrict legal immigration to the United States. Until the administration can get its way in Congress by restricting immigration to only a select few under a Merits-Based immigration system, it will try every other way to restrict immigration, including expanding the definition of public charge.