[Federal Register Volume 62, Number 202 (Monday, October 20, 1997)]
[Rules and Regulations]
[Pages 54346-54356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27605]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 213a and 299
[INS No. 1807-96]
RIN 1115-AE58
Affidavits of Support on Behalf of Immigrants
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations by establishing that an individual (the sponsor)
who files an affidavit of support under section 213A of the Immigration
and Nationality Act (the Act) on behalf of an intending immigrant
incurs an obligation that may be enforced by a civil action. This rule
also specifies the procedures that Federal, State, or local agencies or
private entities must follow to seek reimbursement from the sponsor for
provision of means-tested public benefits, and provides procedures of
imposing the civil penalty provided for under section 213A of the Act,
if the sponsor fails to give notice of any change of address. This rule
is necessary to ensure that sponsors of aliens meet their obligations
under section 213A of the Act.
DATES: Effective Date: This interim rule is effective on December 19,
1997.
Comment Date: Written comments must be submitted on or before
February 17, 1998.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1807-96 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: Miriam J. Hetfield, Office of
Adjudications, Immigration and Naturalization Service, 425 I Street
NW., Room 3214, Washington, DC 20536; telephone (202) 514-5014; or Lisa
S. Roney, Office of Policy and Planning, 425 I Street NW., Room 6052,
Washington, DC 20536; telephone (202) 514-3242.
SUPPLEMENTARY INFORMATION: On September 30, 1996, the President
approved enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Public Law 104-208. Section 531(a)
of IIRIRA amends section 212(a)(4) of the Act to provide that an alien
is inadmissible as an alien likely to become a public charge if the
alien is seeking an immigrant visa, admission as an immigrant, or
adjustment of status as: (a) An immediate relative, (b) a family-based
immigrant, or (c) an employment-based immigrant, of a relative if the
alien is the petitioning employer or owns a significant ownership
interest in the entity that is the petitioning employer. To overcome
this ground of inadmissibility, the alien must be the beneficiary of an
affidavit of support filed under the new section 213A of the Act.
Section 213A of the Act specifies the conditions that must be met in
order for an affidavit of support to be sufficient to overcome the
public charge inadmissibility ground.
Under 531(b) of IIRIRA, the new affidavit of support will be
required for all applications for immigrant visas or for adjustment of
status filed on or after December 19, 1997. Section 531(b) of IIRIRA
excuses an applicant for admission from the affidavit of support
requirement if the applicant had ``an official interview with an
immigration officer'' before December 19, 1997. Because of the massive
administrative burden that would result from requiring aliens who
obtain immigrant visas before December 19, 1997, but do not apply for
admission until on or after December 19, 1997, this interim rule
designates Consular Officers as Immigration Officers, solely for
purposes of section 531 of IIRIRA and this new part 213a. Thus, an
alien who is issued an immigrant visa before December 19, 1997 will not
be required to present an affidavit of support that complies with the
requirements of section 213A of the Act, even if the alien does not
apply for admission until December 19, 1997, or later.
Under section 213A of the Act, Form I-864, Affidavit of Support
Under Section 213A of the Act, is a legally enforceable contract
between the sponsor and the Federal Government, for the benefit of the
sponsored immigrant and of any Federal, State, or local government
agency or private entity that provides the sponsored immigrant with any
means-tested public benefit. The sponsor must sign the Form I-864
before a notary public or a United States Immigration Officer or
Consular Officer. By executing Form I-864, the sponsor agrees to
provide the financial support necessary to maintain the sponsored
immigrant at an income that is at least 125 percent of the Federal
poverty line, unless the obligation has terminated. The sponsor also
agrees to reimburse any agencies which provide means-tested public
benefits to a sponsored immigrant. The sponsor must, under civil
penalty, notify the Service and the State(s) in which the sponsored
immigrant(s) reside of any change in the sponsor's address. Should the
sponsored immigrant obtain any means-tested public benefit, with
certain exceptions, the agency that provides the means-tested public
benefit may, after first making a written request for reimbursement,
sue the sponsor in Federal or State court to recover the unreimbursed
costs of the means-tested public benefit, including costs of collection
and legal fees. This interim rule implements section 213A of the Act by
adding a new 8 CFR part 213a. Intending immigrants who require an
affidavit of support under section 213A of the Act
Under section 212(a)(4)(C) of the Act, all family-sponsored
immigrants, including immediate relatives, are inadmissible unless the
petitioner has executed an affidavit of support under section 213A of
the Act. Aliens who immigrate under the classification for battered
spouses and children and widow/widowers (see sections 204(a)(1)(A)
(ii), (iii), or (iv) and 204(a)(1)(B) (ii) or (iii) of the Act) do not
require a Form I-864 to overcome the public charge ground of
inadmissibility.
The Act also provides that certain employment-based immigrants
under section 203(b) of the Act are
[[Page 54347]]
inadmissible unless an affidavit of support has been executed on their
behalf. Sections 212(a)(4(D) and 213A(f)(4)(A) of the Act state that an
employment-based immigrant requires an affidavit of support if a
relative of the immigrant, or an entity in which a relative of the
immigrant has a significant ownership interest, filed the employment-
based immigrant petition. This interim rule defines a relative for
purposes of this section as a spouse, parent, child, adult son or
daughter, or sibling, which are relationships recognized in the Act as
according immigration benefits. Neither the statute nor the legislative
history defines the term ``significant ownership interest.'' The
Service examined the use of the term in other statutes and regulations.
Several statutes and regulations defined ``significant ownership
interest'' as a 5 percent ownership interest in a for-profit entity.
See 26 U.S.C. 613A(d)(3) and 26 CFR 1.613A-7 (for determining
relationship between entities for purposes of determining limits on oil
and natural gas depletion allowances); 42 CFR 424.22(d)(1) (physician's
interest in a home health agency); 45 CFR 94.3 and 42 CFR 50.603 (for
determining researcher's interest in an entity receiving research
grants); 48 CFR 952.204-73(c) (for questions relating to foreign
ownership of certain Department of Energy contractors). In only one
situation was ``significant ownership interest'' defined to mean more
than a 5 percent interest; 17 CFR 104.735-2 (for limiting investments
of members of the Commodity Futures Trading Commission). And, in that
case, it is a 10 percent ownership interest that is deemed significant.
Accordingly, this interim regulation defines the term ``significant
ownership interest'' as a 5 percent or greater ownership interest in a
for-profit entity.
Aliens who are ``accompanying or following to join'' the
beneficiary of a petition pursuant to section 203(d) of the Act are
seeking an immigrant visa or adjustment of status under the same
immigrant visa category as the beneficiary of the immigrant visa
petition. See section 203(d) of the Act. This interim regulation,
therefore, provides that a Form I-864 must be executed on behalf of any
accompanying or following to join spouse or child under section 203(d)
of the Act, if they are filing applications for immigrant visas or
adjustment of status after December 19, 1997 in a classification for
which an affidavit of support is required.
Affidavit of Support Sponsors Under Section 213A of the Act
Section 212(a)(4)(C)(ii) of the Act states that the person
petitioning for the alien's admission on an immigrant relative visa
petition must execute an affidavit of support in order for the alien to
overcome the ground of inadmissibility. United States citizens who
petition for an orphan under 8 CFR 204.3 must also execute a Form I-
864. Similarly, under section 212(a)(4)(D) of the Act, the relative who
filed an employment-based petition on behalf of the immigrant or a
relative who has a significant ownership interest in the entity which
filed an employment-based petition on behalf of the immigrant must also
execute an affidavit of support. The petitioner must also sign and
submit a separate Form I-864 on behalf of any spouse or children who
accompany or follow to join the principal beneficiary of the immigrant
visa petition. This interim rule uses the term ``sponsor'' to define
the individual who executes an affidavit of support. A sponsor must be
a natural person and cannot be a corporation or other entity.
If there is a spouse or any children immigrating with a sponsored
immigrant, the sponsor may complete the Form I-864 for the principal
immigrant and sign and submit photocopies of the completed form and all
accompanying documentation for each spouse and/or child listed in part
3 of the Form I-864. The sponsor must sign each photocopy of the form
I-864 with an original signature before a notary public or an
Immigration or Consular Officer. If a spouse or child files an
application for an immigrant visa or adjustment of status 6 months or
more after the sponsor originally signed the affidavit of support, the
sponsor must execute a new Form I-864 on his or her behalf.
Sponsorship Requirements
Section 213A(f)(1) of the Act sets forth the requirements to be a
sponsor. The individual executing the Form I-864 must be a citizen or
national of the United States or a lawful permanent resident of the
United States, be at least 18 years of age, be domiciled in the United
States or any of its territories or possessions, and demonstrate the
means to maintain an income of at lease 125 percent of the Federal
poverty guideline (100 percent of the poverty guideline for sponsors on
active duty in the Armed Forces of the United States who are
petitioning for their spouse or child).
The term ``domicile'' is defined in accordance with the generally
accepted definition of the term. A lawful permanent resident who is
living abroad is considered to have a domicile in the United States if
he or she has applied for and obtained preservation of residence
benefit under section 316(a) or 317 of the Act. A U.S. citizen living
abroad whose employment meets the requirements of section 319(b)(1) of
the Act will be considered to have a domicile in the United States.
Sections 213A(f)(1)(E) and 213A(f)(5) of the Act state that a
sponsor, including a joint sponsor, must demonstrate the means to
maintain an annual income equal to at least 125 percent of the Federal
poverty line. Section 213A(f)(3) of the Act reduces the income
requirements to 100 percent of the Federal poverty line for persons on
active duty (other than active duty for training) in the Armed Forces
of the Untied States who are filing petitions on behalf of their spouse
or child. Under section 213A(h) of the Act, the ``Federal poverty
line'' means the level of income equal to the official poverty line, as
defined by the Director of the Office of Management and budget and
revised annually by the Secretary of Health and Human Services, that is
applicable to the size of the sponsor's household. For purposes of the
Form I-864, the Service and Consular Posts will use the most recent
income-poverty guidelines published in the Federal Register by the
Department of Health and Human Services. These guidelines are updated
annually, and the Service and Consular Posts will begin to use updated
guidelines on the first day of the second month after the date the
guidelines are published in the Federal Register.
Section 213A(f)(6)(A)(iii) of the Act defines the size of the
sponsor's household for purposes of determining ability to maintain
income. The sponsor's household size includes the sponsor, all persons
who are related to the sponsor by birth, marriage, or adoption and who
live at the same residence as the sponsor, including the sponsor's
spouse, and any other dependents whom the sponsor has lawfully claimed
on the sponsor's personal Federal income tax return (even if those
dependents do no live with the sponsor), plus all aliens included in
the current affidavit of support, and any immigrants who have been
previously sponsored under section 213A of the Act, unless the
obligation has terminated.
By signing the new affidavit of support under section 213A of the
Act, the sponsor agrees to provide support to maintain the sponsored
immigrant(s) at or above 125 percent of the Federal poverty line. See
section 213A(a)(1)(A) of the Act. Because the sponsor has an
[[Page 54348]]
obligation to support the sponsored immigrant(s) at or above 125
percent of the poverty line, for purposes of the Form I-864, the
sponsor's household size is increased by the number of immigrants
sponsored in the affidavit of support. This applies to all affidavits
of support under section 213A of the Act, regardless of whether the
sponsored immigrant(s) will be living in the same residence as the
sponsor. Therefore, under this interim rule, the sponsor's ability to
maintain income is measured against the number of family members
residing with the sponsor and other dependents, plus any persons for
whom the sponsor has previously executed a Form I-864 for whom the
support obligation has not terminated, and the number of immigrants
sponsored in the current affidavit of support.
Section 213A(f)(6)(A)(i) of the Act provides that a sponsor must
provide a copy of the sponsor's individual Federal income tax return
for each of the 3 most recent tax years, and that the sponsor must
certify under penalty of perjury that the copies are true and correct
copies of the returns as filed with the Internal Revenue Service (IRS).
The new Form I-864 includes a certification that any attached tax
returns are true and correct copies. Accordingly, this interim rule
requires the sponsor to attach his or her Federal income tax returns as
filed with the IRS for each of the 3 most recent tax years. If the
sponsor has not filed tax returns for any of the 3 most recent tax
years, he or she must explain his or her failure to file. For purposes
of demonstrating means to maintain income, the total income, before
deductions, in the sponsor's tax return for the most recent taxable
year will be generally determinative. See section 213A(f)(6)(B) of the
Act. If the sponsor can establish that he or she was not legally
obligated to file a Federal income tax return for any of the 3 most
recent tax years, other evidence of annual income may be considered.
In order to meet the income threshold, the sponsor may rely on his
or her own income, the income of his or her spouse, and the income of
any other individuals who are related to the sponsor by birth,
marriage, or adoption, and have been living in the sponsor's residence
for the previous 6 months or who are listed as dependents on the
sponsor's most recent income tax return. In order to rely on the income
of these other persons, however, the sponsor must include with the
affidavit of support a written contract on Form I-864A, Contract
Between Sponsor and Household Member, between the sponsor and each
person whose income the sponsor will rely on to meet the income
threshold. This written contract will provide that each person whose
income the sponsor will rely on has agreed, in consideration of the
sponsor's signing of the Form I-864, to assist the sponsor in
supporting the sponsored immigrant(s), to be held jointly and severally
liable for payment of any reimbursement obligation that the sponsor may
incur, and to submit to the personal jurisdiction of any competent
court.
If the sponsor will rely on the income of a member of the sponsor's
household who is also the immigrant who is sponsored in the affidavit
of support being filed, the sponsored immigrant need not sign a Form I-
864A, unless the sponsored immigrant's income will be used to determine
the sponsor's ability to support a spouse or any children listed in
Part 3 of Form I-864 who are immigrating with the sponsored immigrant.
If there is no spouse or child immigrating with the sponsored
immigrant, then there will be no need for the sponsored immigrant to
sign a Form I-864A. If, however, the sponsor seeks to rely on a
sponsored immigrant's income to establish the sponsor's ability to
support the sponsored immigrant's spouse and/or children, then the
sponsored immigrant whose income is to be relied on must sign the Form
I-864A, agreeing to make his or her income available to support the
other sponsored immigrants. Either the sponsor, as a party to the
contract, or the sponsored immigrant(s) and any Federal, State, local,
or private agency, as third party beneficiaries, will be able to bring
a civil action to enforce the written contract.
Federal individual income tax returns for the 3 most recent tax
years must be attached to the Form I-864 for each individual whose
income is used to qualify. These individuals must certify on Form I-
864A, under penalty of perjury, that any attached tax returns are true
and correct copies of the returns as submitted to the IRS. If any of
these individuals has no legal obligation to file a Federal income tax
return for any of the 3 most recent tax years, he or she must explain
his or her failure to file and provide other evidence of annual income.
The sponsor and any other individual whose income is used to a qualify
must also submit current evidence of employment or self-employment (if
any).
After calculating household income, the sponsor must determine
whether his or her total income level meets or exceeds the poverty
guidelines, based on the applicable household size, including family
members residing with the sponsor, dependents, and any immigrants
sponsored in the Form I-864 being filed or in a previous Form I-864
where the obliagion has not terminated. There may be instances in which
an Immigration or Consular Officer may question the sponsor's ability
to maintain income based on the sponsor's current employment situation,
on the Federal income tax returns for the 3 most recent tax years, or
on receipt of welfare benefits.
If the petitioner is unable to demonstrate the means to maintain
income equal to at least 125 percent of the poverty line, the intending
immigrant is inadmissible under section 212(a)(4) of the Act, unless
the petitioner and/or the sponsored immigrant(s) demonstrate
significant assets which are available for the support of the sponsored
immigrant(s) or a joint sponsor also executes a Form I-864. In order to
be a joint sponsor, the individual must execute a separate Form I-864
and must accept joint legal responsibility with the petitioning sponsor
and have an income and/or assets, based on his or her household size,
including dependents and the number of persons previously and currently
sponsored on Form I-864, which meets or exceeds 125 percent of the
Federal poverty line. See section 213A(f)(5) of the Act.
Under section 213A(f)(6)(A)(ii) of the Act, a sponsor may
demonstrate the means to maintain income through demonstration of
significant assets of the sponsor and/or the sponsored immigrant(s), if
such assets are available for the support of the sponsored
immigrant(s). This section allows either the sponsor or the sponsored
immigrant(s) to demonstrate that he or she owns significant assets
which enable the sponsor to demonstrate that sufficient resources exist
to support the sponsored immigrant(s), even if the sponsor's household
income is below the Federal poverty line. The sponsor may also rely on
the assets of any individuals who are listed as dependents on the
sponsor's tax return for the most recent tax year or any individuals
who are related to the sponsor by birth, marriage, or adoption and have
been living in the sponsor's residence for the previous 6 months,
provided that such individuals execute a contract on Form I-864A.
Because section 213A(f)(6)(A)(ii) of the Act specifically permits the
sponsor to rely on the assets of the immigrant sponsored in the
affidavit of support being filed, the sponsored immigrant is not
required to sign Form I-864A in order for the Consular Officer or
Immigration Officer to consider the sponsored immigrant's assets. To
[[Page 54349]]
reiterate, a sponsored immigrant who is a member of the sponsor's
household is required to sign a Form I-864A only if the sponsor will
rely on that sponsored immigrant's income to show the sponsor's ability
to support a spouse or child immigrating with the sponsored immigrant.
The Service has determined that assets must be sufficient to
support the intending immigrant(s) for at least 5 years, if necessary.
Under section 403(a) of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, Public Law 104-194, any alien
(with certain exceptions) who obtains lawful permanent resident status
after enactment is ineligible for any Federal means-tested public
benefit for a period of 5 years. In addition, 5 years is the general
residency requirement to qualify for naturalization. See section 316(a)
of the Act. This interim rule, therefore, provides that significant
assets must total at least five times the difference between the
Federal poverty line and the sponsor's household income.
Effect of Affidavit of Support
Under section 213A(a)(1) of the Act, the execution of an affidavit
of support under section 213A of the Act, coupled with the sponsored
immigrant's acquisition of permanent residence, creates a contract
between the sponsor and the U.S. Government which is legally
enforceable against the sponsor by the sponsored immigrant, any
Federal, State, or local governmental agency, or by any other entity
which provides any means-tested public benefits to the sponsored
immigrant. The sponsor is obligated to reimburse government agencies
and private entities which provide means-tested public benefits to the
sponsored alien. Section 423(d) of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 specifically exempts some
benefits from the reimbursement requirement. This interim rule defines
``means-tested public benefit'' as both a ``Federal means-tested public
benefit'' and a ``State means-tested public benefit.'' The former is
defined as any public benefit funded in whole or in part by funds
provided by the Federal Government that the Federal agency
administering the Federal funds defines as a ``Federal means-tested
public benefit.'' As of the date of the publication of this interim
rule, two Federal agencies had published notices stating which of the
programs they administer are considered ``Federal means-tested public
benefits.'' The Department of Health and Human Services has determined
that payments under the Medicaid and Temporary Assistance to Needy
Families (TANF) programs are the only ``Federal means-tested public
benefits'' paid by that agency which are not otherwise exempted from
reimbursement and relevant provisions of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996. See 62 FR 45256
(August 26, 1997). The Social Security Administration has determined
that the only ``Federal means-tested public benefits'' paid by that
agency which are not otherwise exempted from reimbursement and relevant
provisions of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 are Supplemental Security Income (SSI)
payments made under Title XVI of the Social Security Act. See 62 FR
45284 (August 26, 1997).
``State means-tested public benefit'' is defined as any public
benefit for which no Federal funds are provided that a State, State
agency, or political subdivision of a State defines as a ``means-tested
public benefit.'' This interim rule also indicates that Federal
agencies and States should issue determinations of which benefits are
considered ``means-tested public benefits'' before the effective date
of this rule or as soon as possible thereafter. In addition, no benefit
is considered to be a means-tested public benefit if it is a benefit
described in sections 401(b), 411(b), 422(b), or 423(d) of Public Law
104-193. Means-tested benefits may be determined on such bases as
income, resources, or the financial need of an individual, household,
or unit.
Under section 213A(a)(2) of the Act, the sponsor's obligation
terminates upon the sponsored immigrant's naturalization or when the
sponsored immigrant has worked or can be credited with 40 qualifying
quarters of work. This interim rule also provides that the sponsor's
obligation terminates if the sponsor or the sponsored immigrant dies,
or if the sponsored immigrant ceases to hold permanent resident status
and has departed the United States. Termination of the support
obligation does not relieve the sponsor, or the sponsor's estate, of
any liability for reimbursement that accrued before the termination of
the support obligation. If the sponsor can establish that the
obligation to support an immigrant under a previous Form I-864 no
longer exists, that immigrant will not be considered as part of the
sponsor's household size for purposes of determining the sponsor's
income requirement when executing a new affidavit of support on behalf
of another alien.
Sponsor's Change of Address Obligations
Under section 213A(d) of the Act, the sponsor must notify the
Attorney General and the State in which each sponsored immigrant is
currently a resident of the sponsor's new address within 30 days of any
change of address. If the sponsor fails to do so, the sponsor may be
subject to a civil penalty. The sponsor meets the obligation of
reporting a change of address by completing Form I-865, Sponsor's
Notice of Change of Address, and filing the completed Form I-865 with
the Service. Any agency which provides means-tested public benefits may
obtain information on the sponsor's current address through the
Service's established system for verifying alien status. Since this
information will be available to an agency through this verification
procedure, the Service will consider the sponsor's filing of Form I-865
with the Service as sufficient for complete compliance with
requirements of section 213A(d)(1) of the Act. This is, a sponsor will
be considered to have given notice to both the Service and the State
where the sponsored immigrant resides, and so will avoid a civil
penalty under section 213A(d)(2) of the Act, if the sponsor files a
properly completed Form I-865 with the Service in accordance with new 8
CFR 213a.3. The States do not have independent authority to impose a
civil penalty under section 213A(d) of the Act; section 213A(d)(2)
expressly gives enforcement authority to the Attorney General. This
rule is not intended to preempt a State from requiring a sponsor to
file a change of address with the State, as well as with the Service.
But failure to comply with a State's requirement, if any, will not
subject the sponsor to a civil penalty under section 213A(d) of the
Act, if the sponsor filed the Form I-865 with the Service.
The Service will adjudicate cases involving imposition of the civil
penalty for failure to comply with the section 213A(d) change of
address requirement under the previously established procedures for
cases involving civil penalties under the Act. These procedures are
codified at 8 CFR part 280. If the sponsor is a lawful permanent
resident, the sponsor must also comply with the change of address
requirement imposed by 8 CFR 265.1, in addition to the change of
address requirement of section 213A(d) of the Act.
Actions for Reimbursement
This interim rule implements section 213A(b) of the Act by
specifying the
[[Page 54350]]
manner in which an agency or entity requesting reimbursement must
notify the sponsor of his or her obligations and how a Federal, State,
or local agency or private entity may take judicial action to obtain
reimbursement. Requests for reimbursement must be served by personal
service, as defined by 8 CFR 103.5a(a)(2). The request for
reimbursement shall specify the date the sponsor's affidavit of support
was received by the Service or Consular office, the sponsored
immigrant's name, alien registration number, address, and date of
birth, as well as the type(s) of means-tested public benefit that the
sponsored immigrant received, the dates the sponsored immigrant
received the means-tested public benefit(s), and the total amount of
the means-tested public benefit(s) received. It is not necessary to
make a separate request for each type of means-tested public benefit,
nor for each separate payment. The agency may instead aggregate in a
single request all benefit payments the agency has made as of the date
of the request. The request for reimbursement shall also notify the
sponsor that the sponsor must, within 45 days of the date of service,
respond to the request for reimbursement either by paying the
reimbursement or by arranging to commence payments pursuant to a
payment schedule that is agreeable to the program official. If the
sponsor fails to respond to a formal request for reimbursement issued
by a nongovernmental entity or a government agency within 45 days by
indicating a willingness to commence payment, the agency or entity may
sue the sponsor in State or Federal court. Section 213A(b)(2) of the
Act sets forth the procedures to compel reimbursement. Section
213A(b)(2)(C) fixes a 10-year statute of limitations on suits to
collect reimbursement.
Reports to Congress
Section 213A(i)(3) of the Act and section 565 of IIRIRA require the
Attorney General to make periodic reports to Congress. This interim
rule incorporates these reporting requirements into 8 CFR 213a.4(b).
Under section 421 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, an agency that provides means-tested public
benefits may deem the income and resources of an immigrant to include
the income of any sponsor (including the income of the sponsor's
spouse) who has executed an affidavit of support on behalf of the
immigrant. However, if an agency determines that without its assistance
the immigrant would be unable to obtain food and shelter, the amount of
income that may be attributed to the immigrant is limited to the
support the sponsor and spouse actually provide to the sponsored
immigrant. If the agency makes this determination, section 421(e)(2)
requires the agency to notify the Attorney General of information that
the Attorney General would need to make the report required under
section 565 of IIRIRA.
Notice and Comment Requirements
Sections 531(b) and 551(c) of the IIRIRA, Public Law 104-208, make
the new affidavit of support requirement effective as of the date that
is 60 days after promulgation of the new affidavit of support form. The
Service is promulgating the new affidavit of support form
simultaneously with the publication of this interim rule. To begin
using the new affidavit of support form without this accompanying rule
would cause widespread confusion about these new requirements. Only by
having this rule in effect on the date that aliens must begin
submitting the new affidavit of support can this confusion be
mitigated. For this reason, the Commissioner finds that good cause
exists to make this rule effective without observing the provisions of
5 U.S.C. 553 for prior notice and comment. The Commissioner
nevertheless invites written comments on this interim rule and, in
formulating the final rule, will consider any written comments that are
received timely.
Regulatory Flexibility Act
The Commissioner has determined, in accordance with 5 U.S.C.
605(b), that this rule will not have a significant economic impact on a
substantial number of small entities. The factual basis for this
determination is that this rule applies to the individual sponsor and
the sponsored immigrant, who are not within the definition of small
entities established by 5 U.S.C. 601(6). In this regard, it is
important to note that it is the immigrant's relative in that
relative's individual capacity, and not the firm, that incurs the
obligation to support an employment-based immigrant who is subject to
the affidavit of support requirement. Since the duties imposed on the
sponsor arise from the sponsor's participation in a voluntary Federal
program, this rule is not a Federal private sector mandate, as defined
by 2 U.S.C. 658(7)(A)(ii). The rule implements statutory requirements
placed on Federal, State, and local government agencies related to
seeking reimbursement of benefits from a sponsor under an affidavit of
support. Agencies must also make certain reports to the Service. Under
2 U.S.C. 1531, however, no Federal Intergovernmental Mandate Assessment
is required because this rule ``incorporate[s] requirements
specifically set forth in law.''
Executive Order 12866
The Commissioner considers this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, because, over time, it will have a
significant economic impact on the Federal Government in excess of $100
million.
Under provisions included in the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, most immigrants are barred from
receiving SSI benefits and food stamps until they become U.S. citizens
or can be credited with 40 quarters of work. This restriction applies
to most newly arriving immigrants, and to any aliens who were already
admitted as immigrants, but whose eligibility for benefits was not
preserved under the Balanced Budget Act of 1997, Public Law 105-33.
Most immigrants are also barred from most other Federal means-tested
public benefits for their first 5 years in the United States. Veterans
and persons on active duty in the U.S. military, their spouses and
dependent children and their unremarried surviving spouses are exempt
from the 5-year ban. Refugees, asylees, aliens whose deportation or
removal is being withheld, immigrants who are Cuban-Haitian entrants
and certain Amerasian immigrants are also exempt. American Indians born
in Canada referred to in section 289 of the Act are exempt from the 5-
year ban with respect to SSI and Medicaid benefits only. The number of
newly admitted permanent residents in these categories who are subject
to the affidavit of support requirement in section 213A of the Act is
small.
This regulation implements provisions of the Personal
Responsibility Act and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 which require that all family-based and
certain employment-based immigrants be sponsored through legally
enforceable affidavits of support. If a sponsored immigrant applies for
Federal means-tested public benefits, all of the income and resources
of the sponsor and the sponsor's spouse will be deemed to be available
to the sponsored immigrant in determining eligibility for the benefit.
In most cases this would make the sponsored immigrant ineligible for
the benefit sought. Affidavits of support will be enforceable against
sponsors by any agency providing Federal, State, or local means-tested
benefits, with certain
[[Page 54351]]
exceptions (notably emergency medical care, disaster relief, school
lunches, foster care, student loans, and Head Start benefits) to
sponsored immigrants until the sponsored immigrants become U.S.
citizens or can be credited with 40 quarters of work.
Significant savings due to deeming of the income and resources of
sponsors and their spouses to sponsored immigrants will accrue only
after the fifth anniversary of welfare and illegal immigration reform
implementation. Before that time, savings would be minimal since very
few new immigrants would be exempt from the bar to receiving benefits,
and only a small fraction of that group would be expected to apply for
Federal means-tested benefits, resulting in the deeming of sponsors'
income and resources.
Estimates of cost savings due to the deeming of sponsors' incomes
to immigrants who seek benefits made in early 1996 during consideration
of illegal immigration reform legislation are not applicable because
they could not take into account the enactment of welfare reform in
August 1996 which preempted the impacts of sponsor deeming by making
most permanent resident aliens, with or without sponsors, ineligible
for Federal means-tested public benefits for 5 years, and potentially
longer for SSI and food stamps.
Because of the 5-year ban on immigrant access to means-tested
public benefits, the Congressional Budget Office has projected that
savings due to the deeming of sponsor's income will not begin to be
realized until the first immigrants who arrived after the enactment of
welfare reform are no longer subject to the 5-year ban. According to
the Congressional Budget Office, the greatest savings to the Federal
Government will be realized in the Medicaid program since most
permanent residents will remain ineligible for SSI and food stamp
benefits until they become U.S. citizens, at which time sponsor deeming
will no longer apply. Therefore, savings in the Medicaid program due to
the deeming of sponsor income and resources through the legally
enforceable affidavit of support are projected as first becoming
significant in the sixth full year following implementation, fiscal
year 2003. Based on Congressional Budget Office data, savings to the
Medicaid program resulting from the new sponsorship deeming provisions
are estimated to be about $300 million in that year. Savings due to the
deeming of sponsor income and resources to sponsored immigrants who
would otherwise apply for Medicaid are estimated to increase to about
$600 million in 2004, $900 million in 2005, $1.3 billion in 2006, and
$1.7 billion in 2007. Reduced Federal outlays beginning in 2003 are
transfers from permanent resident aliens and their families to the U.S.
Treasury to the extent that third parties such as States and charities
do not increase their spending to cover these benefits.
There will also be administrative costs to the Federal Government
associated with these provisions. Some of these costs may be offset by
subsequent adjustments to fees for Consular immigrant visa and Service
adjustment of status applications, a cost borne primarily by new
family-based immigrants to the United States. The Department of State
and the Immigration and Naturalization Service will print and
distribute the new affidavits of support forms to their offices in the
United States and overseas, and will review affidavits of support for
an estimated 565,000 family-based immigrants annually. The number of
employment-based immigrants who will need affidavits of support is
unknown but assumed to be small.
Under current procedures Consular and Immigration Officers
determine whether each new immigrant is likely to become a public
charge, either through examining a non-legally binding affidavit of
support or other documentation, including demonstration of significant
assets or job offers in the United States. The new legally enforceable
affidavit and supporting documentation are likely to take longer to
review for many principal immigrants. The cost of the additional review
of the new affidavit of support is not expected to exceed $1 million
annually.
The Immigration and Naturalization Service will also maintain
automated sponsorship information on some 565,000 new family-based
immigrants annually and make this information available to benefit-
providing agencies. Federal and State agencies administering Federal
means-tested public benefit programs will also have costs associated
with deeming sponsor income and resources and recovering the costs of
any benefits provided to sponsored immigrants. These costs will depend
on the number of cases where sponsored immigrants apply for means-
tested benefits and the number of instances in which agencies provide
means-tested public benefits and subsequently request sponsors to
reimburse the cost of the benefits and/or sue for recovery of these
funds.
This regulation may also have an economic impact on State and local
governments, either because they choose to deem sponsor income and
resources for their own programs or because they choose to make their
own locally or State-funded assistance programs available to permanent
residents while they are not eligible for Federal means-tested
programs. Savings to States from reduced use of Federally funded means-
tested public benefits toward which States match funds may be offset by
some increased use of locally and State-funded programs. In the absence
of information about what actions States will choose to take, costs and
savings to State and local governments are not estimated.
Supporting immigrants so that they will not become public charges
may also impose costs on sponsors. These costs are hard to quantify
since in many cases the sponsored immigrants will become largely or
entirely self-supporting. Under the sponsorship provisions of the law,
sponsors are required to support the immigrants for whom they have
signed affidavits of support at 125 percent of the poverty line until
the sponsorship obligation terminates, usually through the
naturalization of the sponsored immigrants.
Executive Order 12612
This rule does not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. The rule will benefit the States by protecting
their treasuries from the burden of supporting immigrants who are not
entitled to receive means-tested public benefits. The burdens on the
States under this rule are the requirements (a) to request
reimbursement from the sponsor before suing the sponsor for
reimbursement and (b) to notify the Service, if the State elects to
make a determination under section 421(e) of the Personal
Responsibility and Work Opportunity Act of 1996. These requirements
simply incorporate requirements that already exist by statute.
Moreover, the States remain free to determine whether to sue for
reimbursement in a given case, or to make a determination under section
421(e). Therefore, in accordance with Executive Order 12612, the
Commissioner determines that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
[[Page 54352]]
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in
section 3(a) and 3(b)(2) of Executive Order 12988.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is a major rule as defined in section 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule may
result in an annual effect on the economy of $100 million or more, as
discussed in the preceding paragraphs pertaining to Executive Order
12866.
Paperwork Reduction Act
The information collection requirements contained in this rule
(Form I-864, Affidavit of Support Under Section 213A of the Act, Form
I-864A, Contract Between Sponsor and Household Member, and Form I-865,
Sponsor's Notice of Change of Address), have been approved by the
Office of Management and Budget (OMB) under the provisions of the
Paperwork Reduction Act. The OMB control numbers for these collections
are contained in 8 CFR 299.5, Display of control numbers.
List of Subjects
8 CFR Part 213a
Administrative practice and procedure, Aliens, Affidavits of
Support, Immigrants Immigration and Nationality Act.
8 CFR Part 299
Aliens, Forms, Immigration, Reporting and recordkeeping
requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
1. A new part 213a is added, to read as follows:
PART 213a--AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS
Sec.
213a.1 Definitions.
213a.2 Use of affidavit of support.
213a.3 Notice of change of address.
213a.4 Actions for reimbursement, public notice, and congressional
reports.
213a.5 Relationship of this part to other affidavits of support.
Authority: 8 U.S.C. 1183a; 8 CFR part 2.
Sec. 213a.1 Definitions.
As used in this part, the term:
Domicile means the place where a sponsor has a residence, as
defined in section 101(a)(33) of the Act, in the United States, with
the intention to maintain that residence for the foreseeable future,
provided, that a permanent resident who is living abroad temporarily
shall be considered to be domiciled in the United States if the
permanent resident has applied for and obtained the preservation of
residence benefit under section 316(b) or section 317 of the Act, and
provided further, that a citizen who is living abroad temporarily shall
be considered to be domiciled in the United States if the citizen's
employment abroad meets the requirements of section 319(b)(1) of the
Act.
Federal poverty line means the level of income equal to the poverty
guidelines as issued by the Secretary of Health and Human Services in
accordance with 42 U.S.C. 9902 that is applicable to a household of the
size involved. For purposes of considering the Form I-864, Affidavit of
Support Under Section 213A of the Act, the Service and Consular Posts
will use the most recent income-poverty guidelines published in the
Federal Register by the Department of Health and Human Services. These
guidelines are updated annually, and the Service and Consular Posts
will begin to use updated guidelines on the first day of the second
month after the date the guidelines are published in the Federal
Register.
Household income means the income used to determine whether the
sponsor meets the minimum income requirements under sections
213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) of the Act. It includes the
sponsor's income and may also include the incomes of any individuals
who either are related to the sponsor by birth, marriage, or adoption
and have been living in the sponsor's residence for the previous 6
months or are lawfully listed as dependents on the sponsor's Federal
income tax return for the most recent tax year, even if such dependents
do not live at the same residence as the sponsor.
Household size means the number obtained by adding: (1) The sponsor
and all persons living at the same residence with the sponsor who are
related to the sponsor by birth, marriage, or adoption; (2) all persons
whom the sponsor has claimed as a dependent on the sponsor's Federal
income tax return for the most recent tax year, even if such persons do
not live at the same residence as the sponsor; and (3) the number of
aliens the sponsor has sponsored under any prior Forms I-864 for whom
the sponsor's support obligation has not terminated, plus the number of
aliens to be sponsored under the current Form I-864, even if such
aliens do not or will not live at the same residence as the sponsor.
Immigration Officer, solely for purposes of this part, includes a
Consular Officer, as defined by section 101(a)(9) of the Act, as well
as an Immigration Officer, as defined by Sec. 103.1(j) of this chapter.
Income means an individual's gross income, for purposes of the
individual's Federal income tax liability, including a joint income tax
return.
Intending immigrant means any beneficiary of an immigrant visa
petition filed under section 204 of the Act, including any alien who
will accompany or follow-to-join the principal beneficiary.
Means-tested public benefit means either a Federal means-tested
public benefit, which is any public benefit funded in whole or in part
by funds provided by the Federal Government that the Federal agency
administering the Federal funds has determined to be a Federal means-
tested public benefit under the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, Public Law 104-193, or a State
means-tested public benefit, which is any public benefit for which no
Federal funds are provided that a State, State agency, or political
subdivision of a State has determined to be a means-tested public
benefit. No benefit shall be considered to be a means-tested public
benefit if it is a benefit described in sections 401(b), 411(b), 422(b)
or 423(d) of Public Law 104-193.
Program official means the officer or employee of any Federal,
State, or local government agency or of any private agency that
administers any means-tested public benefit program who has authority
to act on the agency's behalf in seeking reimbursement of means-tested
public benefits.
Relative means a husband, wife, father, mother, child, adult son,
adult daughter, brother, or sister.
Significant ownership interest means an ownership interest of 5
percent or more in a for-profit entity that filed an immigrant visa
petition to accord a prospective employee an immigrant status under
section 203(b) of the Act.
Sponsor means a person who either is eligible to execute or has
executed an affidavit of support under this part.
Sponsored immigrant means an immigrant on whose behalf a sponsor
has executed an affidavit of support under this part, including any
spouse or child who will accompany or follow-to-join the beneficiary of
an immigrant visa petition filed by a sponsor.
[[Page 54353]]
Sec. 213a.2 Use of affidavit of support.
(a) General. (1) In any case specified in paragraph (a)(2) of this
section, an intending immigrant is inadmissible as an alien likely to
become a public charge, unless a sponsor has executed on behalf of the
intending immigrant a Form I-864, Affidavit of Support Under Section
213A of the Act, in accordance with section 213A of the Act, this
section, and the instructions on Form I-864. An affidavit of support is
executed when a sponsor signs a Form I-864 before a notary public or an
Immigration or Consular Officer and that form I-864 is submitted to an
Immigration or Consular officer. The sponsor must execute a separate
affidavit of support for each visa petition beneficiary and for each
alien who will accompany or follow-to-join a visa petition beneficiary.
For any spouse or children immigrating with a sponsored immigrant, the
sponsor may execute an affidavit of support by submitting photocopies
of the Form I-864 and all accompanying documentation, but each
photocopy of the Form I-864 must have an original signature. Under this
rule, a spouse or child is immigrating with a sponsored immigrant if he
or she is listed in Part 3 of Form I-864 and applies for an immigrant
visa or adjustment of status within 6 months of the date the Form I-864
is originally signed. The signature on the Form I-864, including
photocopies, must be notarized by a notary public or signed before an
Immigration or Consular Officer.
(2) (i) Except for cases specified in paragraph (a)(2)(ii) of this
section, paragraph (a)(1) of this section applies to any application
for an immigrant visa or for adjustment of status filed on or before
December 19, 1997, in which an intending immigrant seeks an immigrant
visa, admission as an immigrant, or adjustment of status as:
(A) An immediate relative under section 201(b)(2)(A)(i) of the Act;
(B) A family-based immigrant under section 203(a) of the Act; or
(C) An employment-based immigrant under section 203(b) of the Act,
if a relative of the intending immigrant either filed the employment-
based immigrant petition or has a significant ownership interest in the
entity that filed the immigrant visa petition on behalf of the
intending immigrant.
(ii) Paragraph (a)(1) of this section shall not apply if the
intending immigrant:
(A) Filed a visa petition on his or her own behalf pursuant to
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or
(iii) of the Act, or who seeks to accompany or follow-to-join an
immigrant who filed a visa petition on his or his own behalf pursuant
to section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii)
or (iii) of the Act; or
(B) Seeks admission as an immigrant on or after December 19, 1997,
in a category specified in paragraph (a)(2)(i) of this section with an
immigrant visa issued before December 19, 1997.
(b) Affidavit of support sponsors. The following individuals must
execute Form I-864 on behalf of the intending immigrant in order for
the intending immigrant to be found admissible on public charge
grounds:
(1) For immediate relatives and family-based immigrants. The person
who filed the immigrant visa petition, the approval of which forms the
basis of the intending immigrant's eligibility to apply for an
immigrant visa or adjustment of status as an immediate relative or as a
family-sponsored immigrant, must execute a Form I-864 on behalf of the
intending immigrant.
(2) For employment-based immigrants. A relative of an intending
immigrant seeking an immigrant visa under section 203(b) of the Act who
either filed the immigrant visa petition on behalf of the intending
immigrant or owns a significant ownership interest in an entity that
filed an immigrant visa petition on behalf of the intending immigrant.
(c) Sponsorship requirements. (1) General. A sponsor must:
(i) Be at least 18 years of age;
(ii) Be domiciled in the United States or any territory or
possession of the United States; and
(iii) (A) Be a citizen of the United States or an alien lawfully
admitted for permanent residence in the case described in paragraph
(a)(2)(i)(A) or (B) of this section; or
(B) Be a citizen or national of the United States or an alien
lawfully admitted for permanent residence in the case described in
paragraph (a)(2)(i)(C) of this section or if the individual is a joint
sponsor.
(2) Demonstration of ability to support sponsored immigrants. In
order for the intending immigrant to overcome the public charge ground
of inadmissibility, the sponsor must demonstrate the means to maintain
an annual income of at least 125 percent of the Federal poverty line.
If the sponsor is on active duty in the Armed Forces of the United
States (other than active duty for training) and the intending
immigrant is the sponsor's spouse or child, the sponsor's income must
equal at least 100 percent of the Federal poverty line.
(i) Proof of income. (A) The sponsor must file with the Form I-864
a copy of his or her Federal income tax returns for each of the 3 most
recent taxable years, if he or she had a legal duty to file. By
executing Form I-864, the sponsor certifies under penalty of perjury
under United States law that each return is a true and correct copy of
the return that the sponsor filed with the Internal Revenue Service for
that taxable year.
(B) If the sponsor had no legal duty to file a Federal income tax
return for any of the 3 most recent tax years, the sponsor must explain
why he or she had no legal duty to a file a Federal income tax return
for each year for which no Federal income tax return is available. If
the sponsor had no legal obligation to file a Federal income tax
return, he or she may submit other evidence of annual income.
(C) (1) The sponsor's ability to meet the income requirement will
be determined based on the sponsor's household income. The sponsor may
rely entirely on his or her own income as his or her household income
if it is sufficient to meet the requirement. If needed, the sponsor may
include in his or her household income the incomes of other individuals
if they either are related to the sponsor by birth, marriage, or
adoption and have been living in the sponsor's residence for the
previous 6 months or are lawfully listed as dependents on the sponsor's
Federal income tax return for the most recent tax year. In order for
the Immigration Officer or Consular Officer to consider the income of
any of these individuals, the sponsor must include with the Form I-864
a written contract on Form I-864A between the sponsor and each other
individual on whose income the sponsor seeks to rely.
Under this written contract each other individual must agree, in
consideration of the sponsor's signing of the Form I-864, to provide to
the sponsor as much financial assistance as may be necessary to enable
the sponsor to maintain the sponsored immigrants at the annual income
level required by section 213A(a)(1)(A) of the Act, to be jointly and
severally liable for any reimbursement obligation that the sponsor may
incur, and to submit to the personal jurisdiction of any court that has
subject matter jurisdiction over a civil suit to enforce the contract
or the affidavit of support. The sponsor, as a party to the contract,
may bring suit to enforce the contract. The sponsored immigrants and
any Federal, State, or local agency or private entity that provides a
means-tested public benefit to a sponsored immigrant are third party
beneficiaries of the contract between the sponsor and the other
individual or individuals on whose income the
[[Page 54354]]
sponsor relies and may bring an action to enforce the contract in the
same manner as third party beneficiaries of other contracts. If there
is no spouse or child immigrating with the sponsored immigrant, then
there will be no need for the sponsored immigrant to sign a Form I-
864A, even if the sponsor will rely on the income of the sponsored
immigrant to meet the income requirement. If, however, the sponsor
seeks to rely on a sponsored immigrant's income to establish the
sponsor's ability to support the sponsored immigrant's spouse or
children, then the sponsored immigrant whose income is to be relied on
must sign the Form I-864A.
(2) If the sponsor relies on the income of any other individual,
the sponsor must also attach that individual's Federal income tax
returns for each of the 3 most recent tax years. That individual must
certify, under penalty of perjury, on Form I-864A that each tax return
submitted is a true and correct copy of the Federal income tax return
filed with the Internal Revenue Service. If that individual has no
legal obligation to file a Federal income tax return, he or she must
explain and submit other evidence of annual income. If the individual
whose income the sponsor will rely on is not lawfully claimed as a
dependent on the sponsor's Federal income tax return for the most
recent tax year, then the sponsor must also attach proof of the
relationship between the sponsor and that individual and proof of
residency in the sponsor's residence during at least the preceding 6
months.
(ii) Proof of employment or self-employment. The sponsor must
attach evidence of current employment which provides the sponsor's
salary or wage, or evidence of current self employment. If the sponsor
is unemployed or retired, the sponsor must state the length of his or
her unemployment or retirement. The same information must be provided
for any other person whose income is used to qualify under this
section.
(iii) Determining the sufficiency of an affidavit of support. The
sufficiency of an affidavit of support shall be determined in
accordance with this paragraph.
(A) Income. The sponsor shall first calculate the total income
attributable to the sponsor under paragraph (c)(2)(i)(C) of this
section.
(B) Number of persons to be supported. The sponsor shall then
determine his or her household size as defined in Sec. 213a.1.
(C) Sufficiency of Income. The sponsor's income shall be considered
sufficient if the household income calculated under paragraph
(c)(2)(iii)(A) of this section would equal at least 125 percent of the
Federal poverty line for the sponsor's household size as defined in
Sec. 213a.1, except that the sponsor's income need only equal at least
100 percent of the Federal poverty line for the sponsor's household
size, if the sponsor is on active duty (other than for training) in the
Armed Forces of the United States and the intending immigrant is the
sponsor's spouse or child.
(iv) Inability to meet income requirement. If the sponsor is unable
to meet the minimum income requirement in paragraph (c)(2)(iii) of this
section, the intending immigrant is inadmissible unless the sponsor
and/or the intending immigrant demonstrates significant assets or a
joint sponsor executes a separate Form I-864.
(A) Significant assets. The sponsor may submit evidence of the
sponsor's ownership of significant assets, such as savings accounts,
stocks, bonds, certificates of deposit, real estate, or other assets. A
sponsored immigrant may submit evidence of the sponsored immigrant's
assets as a part of the affidavit of support, even if the sponsored
immigrant is not required to sign a Form I-864A. The assets of any
person who has signed a Form I-864A will also be considered in
determining whether the assets are sufficient to meet this requirement.
The combined cash value of all the assets (the total value of the
assets less any offsetting liabilities) must exceed five times the
difference between the sponsor's household income and the Federal
poverty line for the sponsor's household size (including all immigrants
sponsored in any affidavit of support in force under this section).
B. Joint sponsor. A joint sponsor must execute a separate Form I-
864 on behalf of the intending immigrant(s) and be willing to accept
joint and several liability with the sponsor. A joint sponsor must meet
the eligibility requirements under paragraph (c)(1) of this section. A
joint sponsor's household income must meet or exceed the income
requirement in paragraph (c)(2)(iii) of this section unless the joint
sponsor can demonstrate significant assets as provided in paragraph
(c)(2)(iv)(A) of this section.
(v) Immigration or Consular Officer's determination of insufficient
income and/or assets. Notwithstanding paragraphs (c)(2)(iii) (C) and
(c)(2)(iv) (A) and (B) of this section, an Immigration Officer or
Consular Officer may determine the income and/or assets of the sponsor
or a joint sponsor to be insufficient if the Immigration Officer or
Consular Officer determines, based on the sponsor's or joint sponsor's
employment situation, income for the previous 3 years, assets, or
receipt of welfare benefits, that the sponsor or joint sponsor cannot
maintain his or her income at the required level.
(vi) Verification of employment, income and assets. The Government
may pursue verification of any information provided on or with Form I-
864, including information on employment, income, or assets, with the
employer, financial or other institutions, the Internal Revenue
Service, or the Social Security Administration.
(vii) Effect of fraud or material concealment or misrepresentation.
If the Consular Officer or Immigration Officer finds that the sponsor
or joint sponsor has concealed or misrepresented facts concerning
income, or household size, or any other material fact, the Consular
Officer or Immigration Officer shall conclude that the affidavit of
support is not sufficient to establish that the sponsored immigrant is
not likely to become a public charge, and the sponsor or joint sponsor
may be liable for criminal prosecution under the laws of the United
States.
(d) Legal effect of affidavit of support. Execution of a Form I-864
under this section creates a contract between the sponsor and the U.S.
Government for the benefit of the sponsored immigrant, and of any
Federal, State, or local governmental agency or private entity that
administers any means-tested public benefits program. The sponsored
immigrant, or any Federal, State, or local governmental agency or
private entity that provides any means-tested public benefit to the
sponsored immigrant after the sponsored immigrant acquires permanent
resident status, may seek enforcement of the sponsor's obligations
through an appropriate civil action.
(e) Termination of support obligation. (1)(i) The sponsor's support
obligation with respect to a sponsored immigrant terminates by
operation of law when the sponsored immigrant:
(A) Becomes a citizen of the United States;
(B) 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;
(C) Ceases to hold the status of an alien lawfully admitted for
permanent residence and has departed the United States; or
(D) Dies.
[[Page 54355]]
(ii) The sponsor's support obligation also terminates if the
sponsor dies.
(2) The termination of the sponsor's support obligation does not
relieve the sponsor (or the sponsor's estate) of any reimbursement
obligation under section 213A(b) of the Act that accrued before the
support obligation terminated.
(f) In the case of an alien who seeks to follow-to-join the
principal sponsored immigrant, as provided for by section 203(d) of the
Act, the same sponsor who filed the visa petition and affidavit of
support for the principal sponsored immigrant must, at the time that
the alien seeks to follow-to-join the principal sponsored immigrant,
sign an affidavit of support on behalf of the alien who seeks to
follow-to-join the principal sponsored immigrant. If that sponsor has
died, then the alien who seeks to follow-to-join the principal
sponsored immigrant shall be held to be inadmissible, unless another
person, who would qualify as a joint sponsor if the principal sponsor
were still alive, submits on behalf of the alien who seeks to follow-
to-join the principal sponsored immigrant, an affidavit of support that
meets the requirements of this section. If the original sponsor is
deceased and no other eligible sponsor is available, the principal
sponsored immigrant may sign an affidavit of support on behalf of the
alien seeking to follow-to-join the principal immigrant, if the
principal sponsored immigrant can meet the requirements of paragraph
(c) of this section.
Sec. 213a.3 Notice of change of address.
(a) General. If the address of a sponsor (including a joint
sponsor) changes for any reason while the sponsor's support obligation
under the affidavit of support remains in effect with respect to any
sponsored immigrant, the sponsor shall file Form I-865, Sponsor's
Notice of Change of Address, with the Service no later than 30 days
after the change of address becomes effective.
(b) Civil penalty. (1) Amount of penalty. (i) Except as provided in
paragraph (b)(1)(ii) of this section, if the sponsor fails to give
notice in accordance with paragraph (a) of this section, the Service
may impose on the sponsor a civil penalty in an amount within the
penalty range established in section 213A(d)(2)(A) of the Act.
(ii) If the sponsor, knowing that the sponsored immigrant has
received any means-tested public benefit, fails to give notice in
accordance with paragraph (a) of this section, the Service may impose
on the sponsor a civil penalty in an amount within the penalty range
established in section 213A(d)(2)(B) of the Act.
(2) Procedure for imposing penalty. The procedure for imposing a
civil penalty under this paragraph follows that which is established at
8 CFR part 280.
(c) Change of address. If the sponsor is an alien, filing Form I-
865 under this section does not satisfy or substitute for the change of
address notice required under Sec. 265.1 of this chapter.
Sec. 213a.4 Actions for reimbursement, public notice, and
congressional reports.
(a) Requests for reimbursement.
Requests for reimbursement under section 213A(b)(2) of the Act must
be served by personal service, as defined by Sec. 103.5a(a)(2) of this
chapter. The request for reimbursement shall specify the date the
sponsor's affidavit of support was received by the Service, the
sponsored immigrant's name, alien registration number, address, and
date of birth, as well as the types of means-tested public benefit(s)
that the sponsored immigrant received, the dates the sponsored
immigrant received the means-tested public benefit(s), and the total
amount of the means-tested public benefit(s) received. It is not
necessary to make a separate request for each type of means-tested
public benefit, nor for each separate payment. The agency may instead
aggregate in a single request all benefit payments the agency has made
as of the date of the request. The request for reimbursement shall also
notify the sponsor that the sponsor must, within 45 days of the date of
service, respond to the request for reimbursement either by paying the
reimbursement or by arranging to commence payments pursuant to a
payment schedule that is agreeable to the program official. Prior to
filing a lawsuit against a sponsor to enforce the sponsor's support
obligation under section 213A(b)(2) of the Act, a Federal, State, or
local governmental agency or a private entity must wait 45 days from
the date it issues a written request for reimbursement under section
213A(b)(1) of the Act. If a sponsored immigrant, a Federal, State, or
local agency, or a private entity sues the sponsor and obtains a final
civil judgment against the sponsor, the sponsored immigrant, the
Federal, State, or local agency, or the private entity shall mail a
certified copy of the final civil judgment to the Service's Statistics
Branch, 425 I Street, NW., Washington, DC 20536. The copy should be
accompanied by a cover letter that includes the reference ``Civil
Judgments for Congressional Reports under section 213A(i)(3) of the
Act.'' Failure to file a certified copy of the final civil judgment in
accordance with this section has no effect on the plaintiff's ability
to collect on the judgment pursuant to law.
(b) Federal, State, and local government agencies should issue
public notice of determinations regarding which benefits are considered
``means-tested public benefits'' prior to December 19, 1997, the date
the new affidavit of support goes into effect, or as soon as possible
thereafter. Additional notices should be issued whenever an agency
revises its determination of which benefits are considered ``means-
tested public benefits.''
(c) Congressional reports. (1) For purposes of section 213A(i)(3)
of the Act, a sponsor shall be considered to be in compliance with the
financial obligations of section 213A of the Act unless the sponsored
immigrant or a Federal, State, or local agency or private entity has
sued the sponsor, obtained a final judgment enforcing the sponsor's
obligations under section 213A(a)(1)(A) or 213A(b) of the Act, and
mailed a certified copy of the final judgment to the Service's
Statistics Branch, 425 I Street, NW., Washington, DC 20536.
(2) If a Federal, State, or local agency or private entity that
administers any means-tested public benefit makes a determination under
section 421(e) of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 in the case of any sponsored immigrant, the
program official shall send written notice of the determination,
including the name of the sponsored immigrant and of the sponsor, to
the Service's Statistics Branch. The written notice should include the
reference ``Determinations under 421(e) of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996.''
Sec. 213a.5 Relationship of this part to other affidavits of support.
Nothing in this part precludes the continued use of Form I-134,
Affidavit of Support (other than INA section 213A), or of Form I-361,
Affidavit of Financial Support and Intent to Petition for Legal Custody
for Public Law 97-359 Amerasian, in any case, other than a case
described in Sec. 213a.2(a)(2), in which these forms were used prior to
enactment of section 213A of the Act. The obligations of section 213A
of the Act do not bind a person who executes Form I-134 or Form I-361,
although the person who executes Form I-361 remains subject to the
provisions of section 204(f)(4)(B) of the Act and of Sec. 204.4(i) of
this chapter.
[[Page 54356]]
PART 299--IMMIGRATION FORMS
2. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
3. Section 299.1 is amended by adding the entries for Forms ``I-
864,'' ``I-864A,'' and ``I-865'' to the listing of forms, in proper
numerical sequence, to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Form No. Edition date Title
------------------------------------------------------------------------
* * * * *
I-864................. 10-06-97.............. Affidavit of Support
Under Section 213A of
the Act.
I-864A................ 10-06-97.............. Contract Between Sponsor
and Household Member.
I-865................. 10-06-97.............. Sponsor's Notice of
Change of Address.
* * * * *
------------------------------------------------------------------------
4. Section 299.5 is amended by adding to the list of forms, in
proper numerical sequence, the entries for Forms ``I-864,'' ``I-864A''
and ``I-865'' to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
assigned
INS form No. INS form title OMB control
No.
------------------------------------------------------------------------
* * * * *
I-864...................... Affidavit of Support under 1115-0214
Section 213A of the Act.
I-864A..................... Contract between Sponsor and 1115-0214
Household Member.
I-865...................... Sponsor's Notice of Change of 1115-0215
Address.
* * * * *
------------------------------------------------------------------------
Dated: October 8, 1997.
Doris Meissner,
Commissioner, Immigrant and Naturalization Service.
[FR Doc. 97-27605 Filed 10-17-97; 8:45 am]
BILLING CODE 4410-10-M
