Analysis of final affidavit-of-support rule and forms

[CutienPurg 0]

I thought this was a pretty clear explanation of rules regarding I-864 filing.http://www.nilc.org/immlawpolicy/aosupp/aosupp021.htm

By Charles Wheeler

Catholic Legal Immigration Network, Inc. (CLINIC)

After almost a decade of deliberation, internal debate, and extended delay, U.S. Citizenship and Immigration Services (USCIS) has published a final rule implementing the 1996 law that requires every family-based petitioner, as well as some employment-based petitioners, to submit a legally enforceable affidavit of support. The final rule alters the filing procedures in significant ways. The final rule took effect on July 21, 2006, and applies to adjustment applications pending on that date regardless of when they were filed. The new affidavit of support forms may be used immediately; the prior version of the affidavit of support and related forms may continue to be used up until Oct. 19, 2006, but practitioners are encouraged to start using the new forms as soon as possible. (See also "Final Rule Implements 1996 Requirement That Petitioners Submit Legally Enforceable Affidavits of Support; USCIS Also Issues Clarifying Memo," in this issue of Immigrants' Rights Update.)

In general, the final rule marks a major improvement over the interim one, and the various changes work to streamline and simplify the application process. Nevertheless, the final rule is much longer and detailed than the one it replaces, and very little of the latter remains intact.

The final rule formally incorporates many policy decisions that have taken place since the interim rule was first published eight and a half years ago. These relate to exemptions from the filing requirement based on qualifying quarters or the Child Citizenship Act of 2000, number and type of supporting documents that must accompany the affidavit, weight given to current income versus that reported on prior tax returns, and how domicile is defined. The final rule also makes some fundamental changes in the computation of household size and income, the number of allowable joint sponsors, and the formula for counting assets in lieu of income. USCIS has completely reworked Form I-864, Affidavit of Support Under Section 213A of the Act, and Form I-864A, Contract Between Sponsor and Household Member. In addition, it has created two new forms: Form I-864EZ, EZ Affidavit of Support Under Section 213A of the Act, and Form I-864W, Intending Immigrant's Affidavit of Support Exemption. This article will summarize all of these changes by comparing the final rule and new forms with their predecessors.

Exemptions

Old rule

On May 17, 2001, the Immigration and Naturalization Service (INS) issued two policy memos exempting intending immigrants from the affidavit of support requirements if the affidavit would terminate upon the non-U.S. citizen's obtaining lawful permanent resident (LPR) status. The U.S. Dept. of State (DOS) adopted those changes through parallel memos and new sections to the Foreign Affairs Manual (FAM). One of those situations is when the intending immigrant has earned or can be credited with 40 qualifying quarters of Social Security coverage. A worker may earn up to four quarters in covered employment each year, but can be credited with all the quarters of the spouse, earned during marriage. Similarly, if the intending immigrant is a child, he or she may be credited with all the quarters earned by either or both parents prior to the child's turning 18. For those reasons, many spouses and children did not have to file affidavits of support and accompanying tax forms. Instead, they could simply submit Social Security earnings records verifying 40 quarters of coverage and a statement indicating that the worker had not obtained a means-tested benefit program after Dec. 31, 1997, for a period when he or she was using qualifying quarters.

The other exemption relates to the Child Citizenship Act of 2000 (CCA), which provides that LPR children (other than stepchildren) under 18 derive U.S. citizenship automatically if they reside in the legal and physical custody of at least one U.S. citizen parent. Since the affidavit of support requirements terminate upon the non-U.S. citizen's becoming a U.S. citizen, and this happens in most cases simultaneously upon their obtaining LPR status, it is unnecessary for the intending immigrant to submit an affidavit of support. These children were allowed, at least in theory, to submit a statement from the citizen parent verifying eligibility for the exemption in lieu of an affidavit of support.

These policies, however, were never fully implemented, and the memos were largely ignored. The National Benefits Center (NBC) and the National Visa Center (NVC) routinely rejected Social Security earnings records submitted in lieu of affidavits of support, even when the applicant included a copy of the INS policy memo or FAM section specifically allowing such submission. The U.S. consulate in Ciudad Juarez even took the overly restrictive position that under the 40 quarters exemption, the petitioner still had to satisfy the 125 percent-of-poverty income requirements, as evidenced by tax submissions and employer letters, which obviated most of the benefit of submitting Social Security earnings records.

New rule

The final rule incorporates these policy changes and creates a special form for claiming the exemptions. It is now even more official that an affidavit of support is not required if the intending immigrant satisfies either the 40 quarters or CCA exemption requirements; the applicant instead submits Form I-864W, Intending Immigrant's Affidavit of Support Exemption. This should make it much easier for applicants to claim one of the exemptions, given that the NBC, NVC, and the consulates will now be required to accept the new form.

If the applicant is claiming the Social Security earnings exemption, he or she completes the I-864W and checks the first box. The applicant must still attach relevant Social Security earnings statements. But this marks an improvement from having to submit "certified" earnings records. By signing the form, the applicant authorizes the Social Security Administration to release any information concerning the applicant to USCIS or DOS. If the applicant is claiming the exemption based on the CCA, check the second box on the I-864W. There is no requirement to submit documentary poof of eligibility under the CCA. Orphans whose adoptions will not be legally finalized until after admission to the U.S. do not qualify for this exemption.

Widows/widowers and battered spouses/children filing as self-petitioners under the Violence Against Women Act (VAWA) are also exempt from the affidavit of support rules. Under prior practice, these persons simply didn't include an affidavit of support when applying for adjustment of status or consular processing based on an approved Form I-360. Now they must submit a Form I‑864W and check either the third box (widow/widower) or the fourth one (VAWA self-petitioner).

Household Size

Old rule

In determining household size, the sponsor was required to count the following persons, in addition to him/herself: the intending immigrant; all derivatives of the intending immigrant who are obtaining LPR status at the same time or within six months; all dependents claimed on the sponsor's most recent tax return, regardless of where they reside; all noncitizens on whose behalf the sponsor had previously filed a Form I-864; and "all persons living at the same residence with the sponsor who are related to the sponsor by birth, marriage, or adoption." This last category was defined broadly to include all extended family members, regardless of how distant the relationship and how self-sufficient they were.

New rule

USCIS has eliminated the old definition of "household size" and replaced it with one that provides more flexibility and clarity. The sponsor must now include, in addition to him/herself, only the following persons, regardless of where they reside: the sponsor's spouse; the sponsor's children under the age of 21, provided they are not emancipated; the intending immigrant; all derivatives of the intending immigrant who are obtaining LPR status at the same time or within six months; all dependents claimed on the sponsor's most recent tax return; and all noncitizens on whose behalf the sponsor has previously filed an I‑864. Do not include the intending immigrant's spouse or child when calculating household size if they have already obtained LPR or citizenship status, unless they are also dependents of the sponsor. In addition, the sponsor may include other "relatives" residing with the sponsor if it is advantageous to include their income, as explained below. The term "relative" is still defined to include only the sponsor's spouse, child, adult son/daughter, parent, or sibling.

The effect of this regulatory change will be to reduce the household size — and thus the amount of necessary household income — for sponsors living with extended family members. Sponsors will no longer be required to count, for example, their parents, grandparents, siblings, aunts and uncles, nephews and nieces, or in-laws. The rule specifies exactly who must be counted and clarifies that no household member should be counted more than once.

Household Income

Old rule.

In calculating the total household income, sponsors were able to include their income, the income of any dependents claimed on the last tax return, and the income of any person related by birth, marriage, or adoption, provided the person had been residing with the sponsor for the last six months. This could include the income of the intending immigrant.

New rule

Based on the change in how household size is determined, sponsors may now include, in addition to their income, the income of the following persons: their spouse; their children; the intending immigrant; and any dependents claimed on the last tax return. The sponsor may also include the income of any "relative" included in the household size determination.

In order to count their income, the sponsor's parent, sibling, or child/son/daughter must currently be residing with the sponsor. The sponsor's spouse must also be residing with the sponsor, unless the spouse is an intending immigrant. However, none of these household members need to have been residing with the sponsor for the last six months. It is enough if their principal residence is currently the same as the sponsor's.

In order to count the income of any of these household members, the person must be at least 18 years old and, except for the intending immigrant, execute a Form I-864A, Contract Between Sponsor and Household Member. If the household member is not the intending immigrant but is the sponsor's parent, sibling or son/daughter (other than a claimed dependent), he or she must submit proof of that relationship and current residence with the sponsor. The sponsor's spouse and claimed dependents do not need to submit proof of residence or relationship.

These household members do not have to be U.S. citizens, nationals, or LPRs. Nor is there any specific requirement that they be residing in the U.S. with lawful immigration status, even though USCIS may impose such a requirement. The I-864A only requires that the household member provide a Social Security number if he or she has one. They must, however, provide the prior year's tax return.

The final regulation clarifies that the intending immigrant does not need to execute an I-864A unless he or she has a derivative spouse or child who will be immigrating "with the intending immigrant." In that situation, the intending immigrant needs to execute an I-864A to ensure that his or her income may be relied upon to support the derivative family member(s). Any intending immigrant, other than the sponsor's spouse or claimed dependent, who executes an I-864A must submit proof of residence with the sponsor. If the intending immigrant is the sponsor's spouse, he or she does not need to be residing with the sponsor, regardless of whether he or she executed an I-864A.

To count the intending immigrant's income, he or she must either be residing with the sponsor or be the sponsor's spouse or claimed dependent. But in all situations the intending immigrant's income must be derived from "lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status." If you were hoping the agency would define the term "lawful employment" narrowly so that it merely excluded "unlawful" acts — such as theft, gambling, or drug trafficking — then think again. The latest USCIS memo clarifies that it means "authorized employment," or employment performed while the worker had an employment authorization document.

This means that most intending immigrants who are residing abroad will be precluded from counting their income as part of the sponsor's total household income, since they will likely be changing employment once they immigrate. The final regulation specifies that offers of employment will not be sufficient to meet the intending immigrant's burden of showing continuing employment. This is perhaps the most controversial provision in the final regulations.

Proof of Income

Old rule

The sponsor must satisfy the income requirement (either 100 or 125 percent of poverty) through income reported on the last tax return. In a 1998 policy memo, the DOS stated that if the prior year's income as reported on the tax return was too low, the sponsor could satisfy the income requirements with current income, provided it was sustainable and would meet or exceed the minimum income level. In that case, the sponsor could list current income in Part 4C of the old I-864, but the person had to alter the form by creating a separate column. Most applicants and practitioners — as well as most adjudicators — were unaware that this tactic could be used.

New rule

One of the most significant changes with the final rule is the emphasis now placed on current income versus that reported on prior tax returns. The step-by-step instructions to the I-864 explain that the sponsor is to enter his or her "current individual earned or retirement annual income." In most cases, this will be "expected income for the current year." If the sponsor will be relying on the income of the intending immigrant or other household members, it is their current income that will be listed on the I-864 and I-864A. The final rule stresses that it is this "reasonably expected household income" that shall be given the "greatest evidentiary weight." Tax returns or other documentation will serve merely to evidence the likelihood that the sponsor will be able to maintain this income in the future.

The sponsor does not have to be employed. The I-864 requires the sponsor to state whether he or she is employed, self-employed, retired, or unemployed. Income could come from any source, including pensions, interest income and dividends, alimony, or child support.

Question 25 on the I-864 requires the sponsor to check a box indicating that he or she has either (1) filed a tax return for each of the three most recent tax years and is attaching a photocopy or transcript of the most recent return, or (2) is voluntarily attaching photocopies of the tax returns for the second and third most recent tax years. This now reflects the latest policy memos from USCIS and DOS that reduced the proof of tax filings to the most recent year rather than the last three years. Regrettably, there is no comparable box to check if the sponsor did not have a tax liability for any of those three years. If the reason is due to insufficient income, the instructions tell the sponsor to "attach a written explanation," so presumably he or she would still qualify to check the first box.

If the sponsor is exempt from tax filing due to some other reason, he or she must "attach a written explanation including evidence of the exemption and how [he or she is] subject to it." The sponsor in that case may still submit other evidence of annual income. The sponsor or household member must establish by a preponderance of the evidence that he or she had no duty to file the tax return. Being exempt from the income tax filing requirement does not exempt the sponsor from the affidavit of support filing requirement.

The sponsor must list on the I-864 the total income for the last three tax years as reported on those tax returns, since they will be used as an indication of the sponsor's ability to maintain that income over time. If estimated current annual income appears significantly higher than past reported income, or if the income varies widely from year to year, it will likely raise suspicions with an adjudicator. In those cases, expect the USCIS or consular official to request additional proof, such as pay stubs or an employer's letter. Otherwise, those employment records are no longer required to be submitted with the affidavit of support.

The instructions also specify which line from the tax return should be used when reporting "total" income — either gross or adjusted gross — and explain that it is only the federal tax return that must be submitted. The sponsor or household member should not submit a state or foreign income tax return unless the person had no federal tax liability and wants to use the return to verify current income. The sponsor may submit either a plain (uncertified) IRS transcript or a photocopy of the tax return from his or her own records. Include the W-2, Form 1099, and all other attachments and schedules that were submitted with the federal return.

The sponsor may not count any means-tested benefits (food stamps, Supplementary Security Income, Medicaid, Temporary Assistance to Needy Families, or State Child Health Insurance Program) as income, but he or she may include retirement benefits, unemployment compensation, workman's compensation, or other similar benefits. Earlier policy memos explained that sponsors are able to include both taxable and nontaxable income, such as disability and child support payments, as part of the total household income. Until USCIS or DOS issues further guidance, proceed as if those interpretations are still in effect.

Every sponsor who executes an I-864 and every household member who executes an I-864A must submit a copy of their most recent tax return. Many intending immigrants, however, do not need to submit an I-864A. It does not appear that the sponsor has to submit the tax return of the intending immigrant if his or her income is being included and he or she did not execute an I-864A. In those cases, the sponsor simply includes the intending immigrant's income in section 24b of the I-864 as part of total household income. But given that the intending immigrant must either be the sponsor's spouse or be residing with the sponsor, in most situations the intending immigrant either will have filed a joint tax return or be listed as a dependent on the sponsor's return. Bear in mind that the intending immigrant must still submit proof that the "lawful" employment will continue from the same source after he or she obtains LPR status.

What happens when the affidavit of support isn't examined for sufficiency until months or even years after it was submitted? The new rule clarifies that the adjudicating official must consider the sufficiency of the affidavit of support based on the income reported for the year the I-864 or I-864A was submitted, not on the sponsor's income on the date the application for adjustment of status or an immigrant visa is adjudicated. Similarly, adjudicators must use the federal poverty income guidelines in effect at the time the affidavit of support is submitted, not at the time it is considered for sufficiency. For that reason, all sponsors must submit Form I-864P, Poverty Guidelines, with the affidavit of support. In the event that more than one year has passed from the date of submission to the date of adjudication, USCIS or DOS officials may, in the exercise of discretion, request additional evidence, such as income tax returns for the most recent tax year. In those cases, it will be the sponsor's income and poverty income guidelines in effect for the year the adjustment or immigrant visa application is adjudicated that will control, not for the year the affidavit of support was originally submitted.

The INS stated in a 2000 policy memo that the affidavit of support must be legally sufficient at the time the adjustment of status application was approved, not at the time the affidavit was filed. That policy allowed adjustment applicants to submit an affidavit of support showing income below the required level, provided they supplemented it at the adjustment interview showing proof of sufficient income. USCIS has recently reversed its position on this issue and has now determined that the affidavit must be sufficient both at the time of filing and at the time the adjustment application is adjudicated. The NBC already has been following that procedure when it vets the affidavit of support as part of the process of preparing the adjustment application for adjudication. Beginning Nov. 23, 2005, all adjustment applications have to be filed centrally and must include the I-864.

Joint Sponsors

Old rule

If the sponsor's income is too low to satisfy the financial requirements, he or she may obtain the assistance of a joint sponsor who does have sufficient income. The joint sponsor must count as part of his or her household the intending immigrant and all accompanying derivatives. Under the old rule, multiple joint sponsors were allowed in theory, but they served little purpose, since they could not pool their income; each joint sponsor would be severally and jointly liable for maintaining the sponsored immigrant and each accompanying derivative. Multiple joint sponsors were usually used only if the petitioner had submitted a separate Form I-130, Petition for Alien Relative Petition, for each family member (e.g., petitioner's mother and father), or if the derivatives were to follow to join the principal beneficiary (i.e., immigrate or adjust more than six months later).

New rule

Each intending immigrant — whether a principal beneficiary or derivative — may have only one joint sponsor. But in family-based preference category cases comprised of a principal beneficiary and at least one accompanying derivative, the sponsor may use up to two joint sponsors. The sponsor may apportion the financial burden between the two joint sponsors, so that, for example, one joint sponsor bears responsibility for the principal beneficiary and the second joint sponsor bears responsibility for the derivative. In that situation, the first joint sponsor would include the principal beneficiary as a household member and would bear the financial responsibility for that person, while the second joint sponsor would include the derivative. Each joint sponsor would identify on the I-864 the intending immigrant(s) that he or she is sponsoring.

Assets

Old rule

If the sponsor's income is too low to satisfy the financial requirements, he or she may count any assets that can be converted into cash within one year. The value of these assets must be at least five times the shortfall between the sponsor's income and required amount.

New rule

If the sponsor is a U.S. citizen and the intending immigrant is the sponsor's spouse or child over 18, the value of these assets must be at least three times the shortfall between the sponsor's income and required amount. If the intending immigrant is an orphan to be formally adopted in the U.S., the value of the assets must equal only the shortfall between the sponsor's income and required amount. In all other situations, the assets must still be at least five times the shortfall.

New Forms

Forms I-864 and I-864A have had an almost total makeover and as a result are more user-friendly. The instructions have been moved to the beginning of the forms and are far more detailed. The Form I-864 has nearly doubled from 10 to 19 pages, with more than half of them devoted to instructions and explanations. The sponsor or household member filling out the new forms will be less likely to err, since most of the questions require the person simply to check appropriate boxes and fill in basic information.

Form I-864EZ is to be used by I-130 petitioners who are sponsoring only one beneficiary and whose income alone is adequate to satisfy the financial requirements. It is not to be used by relatives in employment-based cases, by joint sponsors, or by a sponsor who will rely on assets or income from other household members. The form is shorter because it excludes sections of the I‑864 that relate to household members' income and assets. As explained above, Form I-864W is to be used whenever a sponsor is claiming an exemption (e.g., 40 quarters or CCA) from the filing requirements.

Other Changes

In addition to the above, the final rule incorporates other recent policy memos or implements the following changes:

• The I-864, I-864EZ, and I-864A do not have to be signed in front of a notary or consular official. The sponsor or household member merely swears under penalty of perjury that the information provided is correct.

• The sponsor's or household member's contractual obligations under the affidavit of support do not begin until and unless the intending immigrant obtains LPR status. It is not binding upon execution and submission. Therefore, the sponsor or household member may withdraw the affidavit at any point up to the time the intending immigrant is granted LPR status based on the submission of the affidavit of support.

• Domicile is defined as the sponsor's "principal" residence. LPRs residing abroad temporarily are considered domiciled in the U.S. if they meet the requirements of INA sections 316(B) and 317 and file Form N-470 to preserve their residence. U.S. citizens residing abroad temporarily are considered domiciled in the U.S. if their employment abroad meets the requirements of INA section 319(B)(1). Sponsors who are domiciled abroad may nevertheless submit an affidavit of support if they convince the USCIS or consular official that they will reestablish domicile in the U.S. on or before the date the intending immigrant obtains LPR status. Sponsors who are U.S. citizens and who are accompanying the intending immigrant to the port of entry will be deemed to have established domicile in the U.S.; sponsors who are LPRs will similarly be deemed, unless the LPR is denied admission to the country.

• All derivative beneficiaries who will accompany the principal beneficiary (i.e., immigrate at the same time or within six months) must be included on the I‑864. Each principal and derivative beneficiary must have a separate affidavit of support filed in his or her case, but accompanying derivatives may submit a photocopy of the one submitted for the principal. They do not need to submit a photocopy of the supporting documentation. The photocopy of the I-864 does not need to contain an original signature. Each principal beneficiary (e.g., petitioner's mother and father) must submit a separate affidavit of support bearing an original signature.

• Affidavits of support are also required when a relative of the intending immigrant filed an employment-based immigrant petition, or the relative has a significant ownership interest (defined as five percent) in the entity that filed the petition. But this only applies if the relative is a U.S. citizen or LPR. Furthermore, if the relative is an LPR and a sibling of the intending immigrant, he or she is not required to submit an affidavit of support.

• Children born after an intending immigrant is granted an immigrant visa but before the noncitizen parent is admitted to the U.S., and who accompany that parent to the U.S., may be admitted without having a separate immigrant visa. The same is true for children born abroad during the temporary visit of an LPR mother under certain circumstances. These children do not need to have an affidavit of support submitted on their behalf.

• Consular and USCIS officials may still reject an affidavit of support whose projected income meets the financial requirements, but only if, based on specific facts, it is "reasonable to infer that the sponsor will not be able to maintain his or her household income" at the necessary level. In addition, even when the affidavit of support is found to be sufficient, the intending immigrant may be found inadmissible under INA § 212(a)(4) as likely to become a public charge if "specific facts" support such a "reasonable inference."

• Immigration judges have the formal authority to determine the legal sufficiency of the affidavit of support when adjudicating adjustment of status applications.

[dougyceci 0]

Great info. thanks.

[aussiewench 9]

Nice find

For the USCIS release of the Final Rule and Questions & Answers see...

http://www.visajourney.com/forums/index.php?s=&showtopic=4054&view=findpost&p=292751

Edited December 3, 2006 by aussiewench

[Jersey Girl 2]

Good information on new rules (and surprisingly readable). Thank you.