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DHS Proposes New Changes to the Affidavit of Support

Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a new proposed rule published in the federal register that will soon change the regulations governing Form I-864 Affidavit of Support.

Want to know more? Keep on watching for more information.


Overview

On October 2, 2020, the Department of Homeland Security published a new proposed rule in the federal register that seeks to (1) strictly enforce the obligations of sponsors of the affidavit of support (2) tighten the types of documentation required by sponsors to demonstrate sufficient income (3) modify regulations regarding when an applicant is required to submit an affidavit of support from a joint sponsor and (4) enhance interagency reporting and information sharing among various government agencies.


What is the Affidavit of Support?

The affidavit of support is required for most family-based immigrants and some employment-based intending immigrants to show that the foreign national has adequate means of financial support and is not likely to become a public charge while in the United States.

The affidavit of support is essentially a contract between a sponsor and the U.S. government in which a sponsor must demonstrate that he or she has enough income and/or assets to support the intending immigrant. In most circumstances, the sponsor’s income must be at least 125 percent of the Federal Poverty Guidelines according to the size of the household.


What does the proposed rule say?

First, the proposed rule would require sponsors and household members who sign an affidavit of support to provide Federal income tax returns for 3 years, credit reports, credit scores, and bank account information.

Currently, sponsors are only required to provide the most recent Federal income tax return, W2s or 1099s, employment letters, and recent pay stubs.

The new change would increase the burden of proof and narrow sponsors who may be eligible to assist a foreign national.

Second, the proposed rule would disqualify a person from being eligible to be a sponsor if the sponsor previously received any means-tested benefit and failed to meet support obligations on another affidavit of support they signed, or where the household member failed to meet their obligations on a previously signed affidavit of support.

Such factors would have a negative impact on the determination of whether the sponsor has the means to maintain the required income threshold to support the immigrant.

According to the proposed rule, the receipt of means-tested 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 for individuals on active duty in the Armed Forces.

Third, the new 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 the 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.

Fourth, regarding household members who sign the affidavit of support, the new rule would only allow 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.

Finally, the new rule would facilitate interagency communication between means-tested public benefit granting agencies and USCIS by removing the subpoena requirement when agencies request certified copies of a sponsor’s affidavit of support.


When will this rule become effective?

The government will review public comments on this new proposed rule in early November and publish a final rule in the federal register. Once the final rule is published it will become effective 60 days from the date of publication.

Want to know more?


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