DOS Cable Provides Guidance on 40 Quarters SSA in Lieu of I-864
R 220118Z FEB 02
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR
POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BELGRADE
AMEMBASSY
DUSHANBE
AMEMBASSY KABUL
UNCLAS STATE 034687
VISAS, INFORM
CONSULS
E.O. 12958: N/A
TAGS: CVIS, CMGT
SUBJECT: IMMIGRANT VISA
PETITIONS: 40 QUARTERS SSA IN LIEU OF I-864
1. ON MAY 17, 2001,
INS ISSUED A MEMO TO THE OFFICE OF
FIELD OPERATIONS ADDRESSING THE 40
QUARTERS QUESTION, E.G. THE SUBSTITUTION OF SSA COVERAGE FOR THE I-864 AFFADAVIT
OF SUPPORT. THE FOLLOWING IS INTENDED TO SERVE AS GUIDANCE TO POSTS BASED ON THE
INS MEMO.
2. THE MEMO APPLIES TO ALIENS SEEKING PERMANENT
RESIDENCE AS IMMEDIATE RELATIVES OR AS FAMILY PREFERENCE IMMIGRANTS AS WELL AS
TO EMPLOYMENT-BASED IMMIGRANTS WHERE A RELATIVE EITHER FILED THE FORM I-140 OR
HAS A SIGNIFICANT OWNERSHIP INTEREST IN THE FIRM THAT DID FILE THE FORM
I-140.
3. THE INS MEMO NOTES THAT, UNDER INA SECTION
213(A)(A)(3)(A), THE REQUIREMENT FOR VISA PETITIONERS TO
PROVIDE THE I-864
AFFIDAVIT OF SUPPORT TERMINATES ONCE THE SPONSORED ALIEN HAS WORKED, OR CAN BE
CREDITED WITH, 40 QUALIFYING QUARTERS OF COVERAGE UNDER TITLE II OF THE SOCIAL
SECURITY ACT. THIS SECTION CORRESPONDS TO 8 CFR PART 213(A)(2)(E)(1)(I)(B),
WHICH STATES THAT [THE SPONSORS SUPPORT OBLIGATION WITH RESPECT TO A SPONSORED
IMMIGRANT TERMINATES BY OPERATION OF LAW WHEN THE SPONSORED IMMIGRANT] HAS
WORKED, OR CAN BE CREDITED WITH, 40 QUALIFYING QUARTERS OF WORK; PROVIDED, THAT
THE SPONSORED
IMMIGRANT IS NOT CREDITED WITH ANY QUARTER BEGINNING AFTER
DECEMBER 31, 1996, DURING WHICH THE SPONSORED IMMIGRANT RECEIVES ANY FEDERAL
MEANS-TESTED PUBLIC BENEFIT.
4. INS THEN ADDRESSES THE ISSUE OF
WHETHER THE I-864 IS
STILL REQUIRED IF THE SPONSORED ALIEN HAS ALREADY
WORKED, OR CAN BE CREDITED WITH, THE 40 QUALIFYING QUARTERS OF COVERAGE. THE INS
CONCLUSION, AS STATED IN THE MEMO, IS THAT THE I-864 IS NOT REPEAT NOT REQUIRED
IN SUCH CASES.
5. INA SECTION 213 (A)(A)(3)(B) NOTES THAT,
IN DETERMINING THE NUMBER OF QUARTERS, THE ALIEN SHALL BE CREDITED WITH
(I) ALL OF THE QUALIFYING QUARTERS OF COVERAGE AS DEFINED UNDER TITLE II OF THE
SOCIAL SECURITY ACT WORKED BY A PARENT OF SUCH ALIEN WHILE THE ALIEN WAS UNDER
AGE 18, AND (II) ALL OF THE QUALIFYING QUARTERS WORKED BY A SPOUSE OF
SUCH
ALIEN DURING THEIR MARRIAGE AND THE ALIEN REMAINS MARRIED TO SUCH SPOUSE OR SUCH
SPOUSE IS DECEASED. (NOTE: TITLE II OF THE SOCIAL SECURITY ACT REFERS TO FEDERAL
OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE BENEFITS.)
6. THE INS
MEMO CLARIFIES THAT THE STATUTE DOES NOT REQUIRE THE PARENT-CHILD RELATIONSHIP
TO HAVE EXISTED WHEN THE PARENT WORKED THE 40 QUARTERS. FOR EXAMPLE, AN ALIEN
CAN CLAIM EVEN THOSE QUARTERS THAT THE PARENT WORKED PRIOR TO THE ALIENS BIRTH
OR ADOPTION. IN THE CASE WHERE THE ALIEN
CLAIMS QUARTERS WORKED BY A SPOUSE,
HOWEVER, THE ALIEN MAY ONLY BE CREDITED FOR THOSE HOURS WORKED DURING THE
MARRIAGE.
7. ACCORDINGLY, CONSULAR POSTS ABROAD PROCESSING
PETITIONS FOR ALIENS SEEKING PERMANENT RESIDENCE SHOULD WAIVE THE I-864
REQUIREMENT IF THE ALIEN CAN DEMONSTRATE 40 QUARTERS OF WORK UNDER THE SOCIAL
SECURITY ACT AS DESCRIBED IN THIS CABLE.
8. THE TERM QUARTER MEANS
THE THREE-CALENDAR-MONTH PERIOD ENDING ON MARCH 31, JUNE 30, SEPTEMBER 30, OR
DECEMBER 31 OF ANY YEAR. QUARTERS OF COVERAGE ARE OBTAINED BY WORKING AT A JOB
OR AS A SELF-EMPLOYED INDIVIDUAL, EARNINGA SPECIFIED MINIMUM INCOME, AND MAKING
SOCIAL SECURITY
PAYMENTS ON IT. QUARTERS ARE CALCULATED BASED ON THE AMOUNT
OF INCOME EARNED DURING THE COURSE OF THE YEAR, RATHER THAN ACTUAL NUMBER OF
DAYS WORKED WITHIN A GIVEN QUARTER. FOR EXAMPLE, THE REQUISITE MINIMUM INCOME
FOR 2001 IS USD 830 PER QUARTER. THUS ANY INDIVIDUAL EARNING THREE TIMES THIS
AMOUNT DURING THE CALENDAR YEAR WOULD BE
CREDITED WITH THREE QUARTERS OF
COVERAGE, EVEN IF THE INDIVIDUAL ACTUALLY WORKED FOR ONLY ONE
MONTH.
9. ANY INDIVIDUAL SEEKING TO DEMONSTRATE THE AMOUNT OF
QUARTERS OF COVERAGE HE OR SHE EARNED MAY REQUEST AT ANY SSA OFFICE A CERTIFIED
EARNINGS RECORD, WHICH SHOWS THE AMOUNT OF QUALIFYING QUARTERS HE OR SHE HAS
ACCRUED.
10. IN PROCESSING AN IMMIGRANT VISA FOR A BENEFICIARY
SEEKING TO BENEFIT FROM SSA QUARTERS, CONSULAR POSTS SHOULD REQUEST A COPY OF
THE CERTIFIED EARNINGS STATEMENT, AS WELL AS A SIGNED STATEMENT FROM THE PERSON
WHO EARNED THE
QUARTERS CONTAINING THE FOLLOWING LANGUAGE I [NAME] CERTIFY
UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES THAT I DID NOT
RECEIVE ANY FEDERAL MEANS-TESTED BENEFIT, SUCH AS TEMPORARY ASSISTANCE FOR NEEDY
FAMILIES, FOOD STAMPS, MEDICAID, SOCIAL SECURITY INSURANCE, OR STATE CHILD
INSURANCE, DURING ANY OF THE QUARTERS I AM USING TO QUALIFY THAT WERE EARNED
AFTER DECEMBER 31, 1996.
(NOTE: IF THE QUARTERS BEING USED OCCURRED PRIOR
TO
DECEMBER 31, 1996, CONSULAR POSTS DO NOT NEED TO REQUIRE THIS SIGNED
STATEMENT.)
11. CONSULAR POSTS SHOULD INCLUDE COPIES OF THESE
DOCUMENTS IN THE BENEFICIARIES IMMIGRANT VISA PACKAGES. ALTERNATELY, POSTS MAY
DOCUMENT THE I-864 EXEMPTION BY INCLUDING AN OFFICIAL STATEMENT IN THE PACKAGE
TO THE EFFECT THAT NO I-864 IS REQUIRED, AS 40 QUARTERS OF SSA COVERAGE HAVE
BEEN ESTABLISHED, PURSUANT TO THE MAY 17, 2001 INS MEMORANDUM FROM MICHAEL
CRONIN, ACTING EAC HQPGM.
12. THE NATIONAL VISA CENTER (NVC)
PERFORMS A CLERICAL REVIEW OF DOCUMENTS, INCLUDING AFFIDAVITS OF SUPPORT, FOR
CERTAIN CONSULAR POSTS. IN THOSE INSTANCES WHERE THE PETITIONER OR SPONSOR
NOTIFIES THE NVC THAT THEY WISH TO USE THE SSA QUARTERS PROVISION, THE NVC WILL
REQUIRE SUBMISSION OF THE CERTIFIED EARNINGS RECORD AND THE SIGNED STATEMENT
DESCRIBED IN PARAGRAPH 10 BEFORE QUALIFYING THE CASE FOR FORWARDING TO POST. IF
THE PETITIONER AND SPONSOR DO NOT INDICATE THEY INTEND TO USE THE SSA QUARTERS
PROVISION, NVC WILL CONTINUE TO REQUIRE
THE I-864 AND SUPPORTING DOCUMENTS,
INCLUDING THREE YEARS TAX RETURNS AND W-2S, AND PROOF OF
EMPLOYMENT.
13. THE FOLLOWING ARE EXAMPLES OF SPONSORED ALIENS WHO
WOULD BENEFIT FROM THE 40 QUARTERS POLICY:
-- AN ALIEN WHO CAME TO THE
UNITED STATES AS A STUDENT ON AN F-1 VISA AND, WHILE WORKING LEGALLY, ACQUIRED
16 QUARTERS OF SSA COVERAGE, FOLLOWED BY 20 QUARTERS OF SSA COVERAGE WHILE
WORKING ON AN H-1B VISA (ALIEN IN SPECIALTY OCCUPATION PROFESSION), EVENTUALLY
FOLLOWED BY 4 QUARTERS COVERAGE WHILE WORKING AS AN INTRACOMPANY TRANSFERREE ON
AN
L-1 VISA.
-- AN ALIEN WHO ENTERED THE UNITED STATES ON AN 0-1 VISA
(ALIEN WITH EXTRAORDINARY ABILITY IN SCIENCES, ARTS, EDUCATION, BUSINESS, OR
ATHLETICS), ALONG WITH A SPOUSE WHO ALSO HELD AN 0-1 VISA, BOTH OF WHOM WORKED
FOR FIVE YEARS, EARNING A TOTAL OF 40 QUARTERS SSA COVERAGE BETWEEN
THEM.
-- AN ALIEN WHO ENTERED THE UNITED STATES ON AN H-2A
TEMPORARY
AGRICULTURAL WORKER VISA AND WORKED LEGALLY FOR FIVE YEARS, FOLLOWED BY TWO
YEARS WORK OUT-OF-STATUS, FOLLOWED BY ONE YEAR OF LEGAL WORK UNDER TEMPORARY
PROTECTED STATUS, FOLLOWED BY TWO MORE YEARS WORK OUT-OF-STATUS, MAKING REGULAR
SOCIAL SECURITY PAYMENTS EVEN DURING
THOSE PERIODS OF UNAUTHORIZED
WORK.
-- A FOUR-YEAR OLD ALIEN JUST ADOPTED BY A U.S. CITIZEN
PARENT
WHO HAS WORKED AND MADE SOCIAL SECURITY PAYMENTS FOR TEN OR MORE YEARS IN THE
U.S.
14. CA/VO REMINDS INTERVIEWING OFFICERS THAT 9 FAM 40.41
DIRECTS THEM TO CONSIDER THE TOTALITY OF THE ALIEN'S CIRCUMSTANCES IN
DETERMINING WHETHER AN IMMIGRANT VISA APPLICANT IS LIKELY TO BECOME A PUBLIC
CHARGE. THUS, EVEN IF AN APPLICANT HAS A VALID I-864 OR PROOF OF THE 40 QUARTERS
OF SSA COVERAGE, THE INTERVIEWING OFICER SHOULD BEAR IN MIND THE BIG PICTURE AND
CONSIDER ANY OTHER RELEVANT FACTS THAT WOULD INDICATE THE APPLICANTS LIKELIHOOD
OF BECOMING DEPENDENT ON THE U.S. GOVERNMENT FOR
SUBSISTENCE.
15.
THE FULL TEXT OF THE INS MEMO MAY BE FOUND AT THE FOLLOWING WEBSITE: WWW.IMMIGRATION.GOV/GRAPHICS/LAWSREGS/
HANDBOOK/AFDSUPTCCA.PDF.
POWELL