DHS Proposes Major Changes to the Affidavit of Support in Green Card Cases
On October 2nd the Department of Homeland Security published a notice of proposed rulemaking seeking to implement major changes to the affidavit of support in green card cases. If finalized, this rule will impose significant burdens on family petitioners in adjustment of status cases, such as marriage based green card situations.
SUMMARY OF CURRENT RULES FOR THE AFFIDAVIT OF SUPPORT IN GREEN CARD CASES
In most family-based adjustment of status green card cases, the USCIS requires the petitioner (normally the US citizen) to file an affidavit of support with the I-130 Petition. In some employment-based green card cases, an affidavit of support is required as well. The affidavit of support requirement ensures that the Petitioner has the financial means to support the beneficiary and that the beneficiary will not become a “public charge”. Likewise, if the beneficiary does require means-tested benefits, the Affidavit of Support creates a contract by which the Petitioner agrees to reimburse the government for the costs of providing the means-tested benefits to the beneficiary. This contractual agreement very often survives divorce or separation.
A petitioner is required to submit their most recent tax return, as well as proof of current employment and income. Under current rules, there is a relatively light documentary burden, as the USCIS assigns heavy weight to the Petitioner’s current financial situation. In some cases, the USCIS requests previous years’ tax returns or further proof of income. However, even in these more complex cases, the Petitioner is often still able to easily navigate income documentation requirements. Required income levels based on household size are published every year in a document referred to as the I-864P Poverty Guidelines.
In cases where the Petitioner has insufficient current income to sponsor the Beneficiary alone, the Petitioner is allowed to obtain a joint sponsor who meets income requirements. That joint sponsor becomes contractually obligated with the primary petitioner to ensure that the beneficiary does not become a public charge. Documentation requirements for joint sponsors are also relatively straightforward and simple in most cases.
PROPOSED CHANGES TO THE AFFIDAVIT OF SUPPORT IN GREEN CARD CASES
Similar to the rationale behind the recent I-944 financial self-sufficiency requirements for beneficiaries, the DHS wants to probe a Petitioner’s finances much more deeply to assess his or her ability to be a viable sponsor. The DHS claims in its NOPR that current documentation requirements are not sufficient to determine a Petitioner’s financial history and health. Similarly, the DHS argues that existing rules do not adequately prevent green card beneficiaries from becoming public charges. Of course these claims are likely to be challenged in eventual litigation. However, for now, these are the proposed significant changes to the affidavit of support in green card cases:
A Joint Sponsor Will Be Required When the Petitioner Has Received Means Tested Benefits Within Past 3 Years
Under current rules the I-944 Self Sufficiency Declaration allows the USCIS to take a close look at whether the Beneficiary has received recent public benefits. Depending upon the type of benefit and circumstances, this can be a huge “strike” against a Beneficiary’s adjustment of status case. A proposed change to the affidavit of support would allow the USCIS to conduct a similar inquiry into the Petitioner’s history. When a Petitioner has received public assistance in the previous 36 months a joint sponsor will be required. The DHS concedes that a Petitioner’s financial circumstances can change over time, and that current income may not be reflective of a Petitioner’s situation 3 years prior. Nevertheless, the DHS believes that a 3 year look back period for public assistance is more probative of future financial reliability, and that receipt of public assistance even at the beginning of that period equates to unreliability.
One key exception is made for petitioners who are on active duty in the US military and seeking green cards for their spouses or children. The DHS notes the sacrifice these individuals already make in service to the USA and their low salaries. This exception does not apply to active duty purely for the purposes of training.
Definition of Household Income Will Be Restricted and Definition of Household Size Expanded
At present income of all household members residing in the same residence can be considered in affidavit of support household income calculations if those household members execute I-864A Contracts. The DHS argues that the current rule ignores the possibility that income from household members may not actually be available for support of the green card applicant. Thus, household income would be restricted to lawfully derived income received by the Petitioner, the Petitioner’s spouse if residing in the same household, and in some cases the intending immigrant. Likewise, under the related definition of “household size”, any immigrants for whom the sponsor has previously executed an I-864A Contract With Household Member in another case, must be included in the computation.
Evidentiary Requirements for Petitioners of Financial Stability Will be Significantly Increased
One of the most significant proposed changes to the affidavit of support in green card cases concerns a Petitioner’s documentation requirements. For example, a Petitioner’s credit score and credit report will need to be submitted and the USCIS adjudicating officer will take a Petitioner’s credit history into account. Likewise, credit scores and reports will be required of any household member executing an I-864A. Finally, joint sponsors will also need to submit their credit history and score. Evidence of bankruptcies, substantial indebtedness, or other negative credit factors may disqualify a sponsor from being able to prove they can sufficiently support a green card applicant.
The DHS will also require all sponsors to submit certified IRS tax return transcripts for the previous 3 years. Current rules only require a sponsor to submit the most recent tax return, and a photocopy is often accepted. Under the new rule, all sponsors including a Petitioner, joint sponsor and household members will be required to obtain and submit official IRS transcripts for the prior 3 filing years.
Finally, bank account statements for the Petitioner and any other sponsoring individuals will also be required. To date, bank statements are only required if a Petitioner or sponsor is relying in part on assets to meet affidavit of support requirements. Under the new proposed affidavit of support rule, bank statements will be mandatory.
Miscellaneous Changes to the Affidavit of Support in Green Card Cases
The proposed rule also seeks to change a variety of other provisions. For example, all sponsors including household members will be required to notify the USCIS of a change of address within 30 days. The rule also clarifies which child beneficiaries require affidavits of support to be filed for them and which do not.
EFFECT OF PROPOSED CHANGES ON FAMILY-BASED GREEN CARD CASES
There is no doubt that these proposed affidavit of support rule changes will have a dramatic impact on many petitioners and their family members. In my view, the families most impacted will be young and middle class families. I have filed many spousal petitions for recent college graduates who have stable post-graduation income but no financial history as a student. Likewise, many middle class families have been severely impacted by COVID’s economic effects and may not have a stellar credit history while shifting financial priorities to family necessities. I cannot recall a single case in my 25 years of practice where I have seen immigrants in these situations become a public charge. Quite the contrary, I have seen them all become productive members of US society when given the chance to obtain their green card and partake of the American dream.
WILL THESE CHANGES TO THE AFFIDAVIT OF SUPPORT IN GREEN CARD CASES ACTUALLY TAKE EFFECT
As with everything the DHS promulgates these days, litigation is all but certain if the DHS implements these affidavit of support changes in green card cases. The DHS / USCIS has had mixed results with recent rulemaking efforts. While the I-944 Self Sufficiency rule for beneficiaries has passed muster (for now) in the courts after various preliminary injunctions were lifted, the USCIS’ recent attempt to raise filing fees has been currently enjoined. Thus, it remains to be seen the path these proposed affidavit of support changes will take when legally challenged. Much may ultimately depend upon which candidate wins the upcoming election and the makeup of the US Supreme Court.
In the meantime, those pondering a green card process may wish to move forward sooner rather than later in the event these changes do become law. Likewise, those considering filing a green card petition for a family member in the future should make a dedicated effort to maintain healthy finances, including favorable credit scores and history.
ABOUT THE AUTHOR
Attorney Richard Ruth is a US immigration attorney in Gainesville Florida with over 25 years of experience in US immigration matters. He also offers personal US Immigration consultations in Oslo, Norway and Prague, Czech Republic during portions of the year when he is present in those cities. He represents clients throughout the United States and world with US employment and family immigration matters or US citizenship applications. For assistance with your US immigration law questions or issues you can e-mail Attorney Richard Ruth at [email protected].