DOS on Affidavit of Support Public Charge
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BUJUMBURA
AMEMBASSY SARAJEVO
AMEMBASSY PARAMARIBO
UNCLAS STATE 228862
VISAS INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS, CMGT
Subject: I-864 Affidavit of Support Update No. One - Public Charge Issues
Ref: (a) State 211673 (b) State 7103
1. This is the second in a series of cables related to the new section 213a Affidavit of Support Form, I-864, and related regulations. REFTEL A, "Nuts and Bolts", was the first. This cable addresses public charge issues under the new regulations.
2. The Aug. 22, 1996 Welfare Reform Act (the Personal Responsibility and Work Opportunity Reconciliation Act -- "PRWORA"), P.L. 104-193, added a new section 213a to the Immigration and Nationality Act which provides for legally binding Affidavits of Support for purposes of meeting INA 212(a)(4)'s public charge requirement. On Sept. 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), P.L. 104-208, amended INA 212(a)(4) to require that a section 213a binding Affidavit of Support be submitted for all family-based immigrant visa applicants (other than self-petitioners) and certain employment based IV applicants. The Welfare Reform Act, amended by P.L. 105-33, restricted the public benefits available to most aliens in the United States. Both laws will affect how Consular Officers adjudicate public charges under the INA. The fundamental responsibility of a Consular Officer to verify that visa applicants have adequate financial resources so that they are not likely to become a public charge remains unchanged, however. This message addresses the effect the new laws will have on consular implementation of the public charge provisions of INA Section 212(a)(4) .
212(a)(4) - Changes Made by IIRAIRA and the Welfare Reform Act
3. 212(a)(4)(A) - This section 15 the old section 212(a)(4), with "inadmissible" substituted for "excludable". The following paragraphs summarize the new Provisions.
4. 212(a)(4)(b) - Factors To Be Taken Into Account. IIRAIRA first lists the factors Consular Officers have traditionally considered in making public charge determinations: age, health, family status, assets, resources and financial status, education and skills. In addition, however, it explicitly states that Consular Officers and the Attorney General (INS inspectors) may also consider any Affidavit of Support under INA section 213a the new contractual Affidavit of Support].
5. 212(a)(4)(c) - Family Sponsored Immigrants. Subsection (ii) of this section requires that the petitioner in all family-based immigrant visa cases file a contractual Affidavit of Support as described in section 213a. (Self-petitioning widow/ers and battered spouses and children are exempt from this requirement by subsection (i) of this section.)
6. 212(a)(4)(d) - Certain Employment-Based Immigrants. In employment-based cases where a relative is either the petitioner or has significant ownership interest (5 percent or more) in the petitioning entity, that relative must file an Affidavit of Support as described in section 213a.
Section 213a - Contractual Affidavit of Support
7. Applicants listed in Paras 5 and 6 above must submit a Section 213a Affidavit of Support. This is a legally enforceable agreement in which the sponsor agrees to provide support to maintain the sponsored alien(s) at an annual income that is not less than 125 percent of the federal poverty guideline for the indicated household size during the affidavit's period of enforceability. A sponsor on active duty in the U.S. Armed Forces, other than active duty for training, who is petitioning for his or her spouse or child must only demonstrate the means to maintain an income equal to at least 100 percent of the federal poverty guidelines. The contractual Affidavit of Support was explained in detail in REFTEL (A).
Means-Tested Public Benefits
8. P.L. 104-193 severely limits most aliens' eligibility for federal means-tested public benefits for at least the first 5 years after arrival in the U.S. individual states will determine whether aliens are qualified for most state benefits. Although an alien could access public benefits more freely thereafter, the section 213a Affidavit of Support may at that point permit public benefits programs to seek reimbursement from an alien's sponsor for certain means-tested benefits received by the sponsored alien(s) for the duration of the period that the affidavit is enforceable. The affidavit is enforceable until such time as the alien can be credited with 40 qualifying quarters; naturalizes; departs the U.S. and relinquishes LPR status; or dies.
9. Since it generally takes 10 years to accumulate 40 qualifying quarters, this means that in the case of many aliens, (1) no federal means-tested public benefits will be paid in their first five years in the U.S. and (2) any means-tested benefits paid in the next five years, or for the duration of the enforceability of the Affidavit of Support, may be recovered from the sponsor who submits the section 213a Affidavit of Support.
10. Eligibility for federal means-tested public benefits is generally determined on the basis of income, resources or financial need of the individual, household or family. Federal means-tested public benefits are to be identified by the administering agencies. To date, those agencies have identified and published the following benefits: Medicaid, Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF). (note: TANF has replaced aid for families with dependent children (AFDC).) There may be other federal means-tested public benefits (including, most likely, food stamps) designated in the future. States will individually identify means-tested state benefits for the purposes of this act.
Benefits Not Within the Provisions of INA 212(a)(4)
11. As noted in 9 FAM 40.41 n.9, certain programs which are funded with public funds for the general good should not be considered public charge. Such programs would include, but are not limited to: public education, child vaccination programs, social security payments, and other similar programs.
Benefits Exempted from the Means-Tested Restrictions:
12. The following benefits are specifically exempted from the prohibition of receipt by aliens in Para 423(d) of the Welfare Act: emergency medical assistance; short term, non-cash, in kind emergency disaster relief; assistance or benefits under the National School Lunch Act and similar state and local programs; assistance or benefits under the Child Nutrition Act of 1966 and similar state and local programs, including the Supplemental Nutrition Program for Women, Infants and Children (WIC) program; public assistance for immunizations and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease; payment for foster care and adoption assistance; programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General; programs for student assistance under Titles IV, V, IX and X of the Higher Education Assistance Act of 1965 and Titles II, VII, and VIII of the Public Health Service Act; benefits under the Head Start Act; means-tested programs under the Elementary and Secondary Education Act of 1965; and benefits under the Job Training Partnership Act.
13. In determining whether an alien is likely to become a public charge, the department's long-standing guidance will generally continue to be applicable in the same way as before Congress restricted the eligibility of certain aliens for most welfare programs. It thus is appropriate to consider whether the alien would likely need to rely on public assistance programs, even if the Welfare Act permits such assistance to be paid. The potential utilization by a visa applicant of means-tested programs such as SSI and TANF or non-basic assistance means-tested programs such as Medicaid for non-emergency medical care will continue to be indicators that the alien is likely to become a public charge.
Adjudication of Public Charge Provisions Under Section 213a
14. Although the new regulations require a petitioner or joint sponsor to demonstrate a sustainable income of 125 percent of the poverty guideline, the mere fact that the petitioner/sponsor has met the minimum requirement does not preclude a finding of ineligibility under public charge provisions of the Act. The act provides for and the INS regulations restate the discretion of consular and immigration officers to make public charge determinations based on a consideration of the individual circumstances of each case. The regulations clearly state that, even if the Affidavit meets the minimum requirement, an officer may require additional evidence of income or assets or may require a joint sponsor if the demonstrated resources do not appear adequate to prevent the applicant(s) from becoming a public charge.
Insufficient Affidavit of Support
15. In the IV-categories listed in Paras 5 and 6 above, the petitioner must submit an Affidavit of Support and demonstrate an income at a minimum of 125 percent of the poverty guideline for the indicated household size (100 percent for members of the armed services). As noted in Paras 20-23 of Ref(A), the petitioner may use the income and assets of qualified household members, who have signed Form I-864a, to meet the required income level. If the petitioner and qualified household members, cannot meet that income level, the affidavit is considered "insufficient."
16. If the petitioner's affidavit is insufficient, a joint sponsor who individually meets the 125 percent minimum income requirement may file an Affidavit of Support. The petitioner and joint sponsor(s) may not pool their resources to meet the minimum income. If the petitioner's Affidavit is insufficient and there is no/no joint sponsor, the applicant must be found ineligible for an immigrant visa under 212(a)(4).
Sufficient AOS and Public Charge Issues
17. In most cases, the public charge requirements will be satisfied by the submission of a verifiable Affidavit of Support that meets the 125 percent minimum income requirement. However, the fact that the minimum income level has been met does not preclude the Consular Officer from examining other public charge considerations. A finding of ineligibility in cases where the 125 percent minimum has been met must be well-documented and demonstrate a clear basis for the determination that the applicant is likely to become a public charge.
18. If the applicant and/or his/her spouse or dependents are in good health and appear to be employable, an Affidavit of Support that meets the minimum income level should generally be considered adequate.
19. If the applicant(s) suffer from poor health or serious physical impairment, are likely to need medical treatment, or are otherwise not likely to be able to support themselves, closer scrutiny of the sponsor's ability to provide the requisite level of support may be necessary. For example, a sponsor who is able to demonstrate an income that barely meets the minimum requirement, should have to demonstrate clearly that he/she has the resources to cover an applicant requiring extensive or long-term medical expenses. In such cases, a joint sponsor with substantial resources would have to provide an Affidavit of Support. (Note: Medical considerations should only be for conditions that exist at the time of the interview. A healthy elderly applicant, for example, should not be denied a visa simply because s/he might require medical care at some point in the future.)
20. Conversely, a sponsor who meets the income requirement may have financial obligations that severely reduce the amount of support s/he could realistically provide to the applicant. Interviewing officers may request additional information regarding the petitioner's financial situation as needed. Such requests should not be routinely made of all applicants/petitioners, but should be limited to those cases where the additional information is essential to adjudication.
Joint Sponsors
21. If the petitioner cannot meet the minimum income requirement, one or more joint sponsors may file separate Affidavits of Support. Each joint sponsor will be jointly and severally liable for reimbursement payments and, therefore, must independently meet the income requirement. They may not combine their resources to meet that requirement. There is no limitation on who may submit a joint Affidavit of Support as long as each sponsor meets the requirements for a sponsor listed in the Act (see REFTEL A, Paras 11 & 12). Officers should accept and consider any joint affidavit submitted regardless of the relationship of the Affiant to the applicant. Given the contractual nature of the Affidavit, a certain weight must be given to all verifiable Affidavits of Support, but the affiantt must still demonstrate the wherewithal to provide the level of support required by the Act. While it is not a requirement for an affiant to be a relative by blood or marriage to an applicant, it would seem logical that a relative or friend of the family would be more strongly motivated to fulfill the obligations of the I-864 than an individual who is unknown the petitioner or the beneficiary. Any questions regarding this issue should be addressed to VO/L/A.
22. If the petitioner/sponsor meets the minimum income requirement, a joint sponsor is generally not authorized. A Consular Officer may request an Affidavit of Support from a joint sponsor if the petitioner's/sponsor's resources do not appear adequate to meet the applicants' needs. Previous receipt of public benefits by the sponsor.
23. Part 4(b) of the I-864 asks for information regarding receipt of means-tested public benefits by the petitioner/sponsor and household members during the prior three years. Despite the prohibition of the extension of such benefits to aliens under the welfare reform laws, there is no ground of ineligibility based solely on the prior receipt of such benefits. However, the regulation provides that an Affidavit of Support may be found insufficient notwithstanding the apparent sufficiency of current income, assets, or a joint sponsor's income, if the officer determines, based on the sponsor's employment situation, income for the prior three years, assets, or receipt of welfare benefits, "that the sponsor or joint sponsor cannot maintain his or her income at the required level."
24. The past or current receipt of public benefits by the petitioner thus raises public charge questions, but does not in itself constitute a ground of ineligibility. Often in such cases, the petitioner will not be able to demonstrate the minimum income requirement and a joint sponsor will be necessary. If there is a sufficient Affidavit of Support and the applicant appears to be able to support him/herself and dependents, a public charge finding may not be appropriate notwithstanding the petitioner's reliance on public assistance.
25. If, on the other hand, the applicant is unlikely to be able to support him/herself, there will be a greater burden on the sponsor(s) to overcome public charge considerations. If, for example, the petitioner lives with or is dependent upon the joint sponsor (who is often a son or daughter), the issue of why the joint sponsor has not provided adequate support to the petitioner should be a consideration.
Receipt of Public Benefits by Applicants
26. Different questions arise when the applicant has traveled previously to the United States and accessed public benefit programs. It is important to note that public charge provisions are generally forward looking and findings of ineligibility should be based on the likelihood of the applicant becoming a public charge. There is no ground of ineligibility based solely on the prior receipt of public benefits. However, under limited circumstances, a federal, state, or local agency which administers public benefits may determine that a benefit was unlawfully obtained or that an overpayment has occurred and will demand repayment of the benefit from the beneficiary. If a state has made such demand for payment and the applicant has not made reimbursement, a public charge finding would be appropriate. Generally, however, unless fraud can be clearly demonstrated, administering agencies will lack legal authority to make a demand for repayment of received benefits. Thus in most cases, prior receipt of benefits, by itself, should not lead to an automatic finding of ineligibility. Prior receipt of public benefits is a factor which may be considered in making public charge determinations, along with evidence of the applicant's current financial situation and of the sponsor's ability to provide support.
27. Under no circumstances should an officer instruct or request an applicant to repay previously received benefits. This is a matter the applicant should address directly to the state. If asked, the officer should advise the applicant that while repayment can be considered in any reevaluation, it will not guarantee the issuance of a visa.
28. Additional guidance regarding receipt of public benefits and public charge considerations will be addressed SEPTEL.
Public Charge and All Other Applicants
29. Only those applicants noted in Paras 5 and 6 above are required to submit a contractual Affidavit of Support. Any other immigrant or non- immigrant applicants who may need an Affidavit of Support to overcome the public charge provisions of the Act should use the I-134 currently in use. There will be little change in the adjudication of Public charge provisions in cases not covered by the contractual Affidavit of Support. Consular officers should continue to apply existing guidelines for making public charge determinations in those cases.
30. Minimize considered
Strobe Talbott