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Affidavit of support; the financial side of petitioning for legal status of a family member


AFFIDAVIT OF SUPPORT; THE FINANCIAL SIDE OF PETITIONING FOR LEGAL STATUS OF A FAMILY MEMBER

TPS is a temporary immigration status granted to eligible nationals of a foreign state designated for TPS under the Immigration and Nationality Act (INA). A country may be designated for Temporary Protected Status (TPS) when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely.
The Affidavit of Support, used in most family immigrant visa applications, is a contract between an individual sponsor and the US government whereby the individual makes available his or her financial resources to support the intending immigrant. INA Sections 212(a)(4) and 213A . The individual who signs the affidavit of support becomes the sponsor once the intending immigrant becomes a lawful permanent resident. While the sponsor is usually the petitioner who filed an immigrant petition on behalf of the intending immigrant, there can be a co-sponsor if necessary.

An enforceable contract, the Affidavit of Support locks in the sponsor’s responsibility usually until the immigrant becomes a U.S. citizen, or is credited with 40 quarters of work (usually 10 years).

The contract, signed using form I-864, can be an issue for petitioners who do not have the requisite income (for example a retiree or a student). The requisite income is updated every year by the immigration service known as USCIS, on a document called “poverty guideline”. To give an example of the amount of income required, a California sponsor with a household of 4 (as stated on tax returns) who signs the contract on behalf of an immigrant who is not part of the household, must show a current income of $40,587 (it is less if the sponsor is in the military). To prove income, to follow are some of the documents :

  • A copy of individual Federal income tax return, including W-2s and 1099s for the last three tax years
  • Last 4 Pay stubs
  • Letter verifying employment
  • Proof of age of majority, and US Legal Permanent Resident or Citizen status

If the sponsor has not yet filed taxes or is self employed, the documentary burden becomes much more complex. Moreover, if the family petitioner does not make the requisite income, there must be a co-sponsor who will be expected to enter into contract and provide the financial documents described above.

Lacking documents and failure to prepare the affidavit of support correctly causes many delays in the green card process so it’s important to get legal advice on how to present the affidavit.
Notification of Change of Address
The sponsor of an immigrant is required to notify the Attorney General and the State in which the immigrant is living of any changes of address.8 CFR §213a.3(a)(i) That notification must take place within 30 days change of address. This obligation continues through the entire period that the support obligation is in effect. The change of address must be made using Form I-865. The USCIS will accept as proof of compliance with this section a photocopy of the completed Form I-865 together with proof of the form’s delivery to the proper service center. 8 CFR §213a.3(a)(1). Failure to notify the Attorney General or the state in which the immigrant is living could lead to a fine of between $250 and $2,000. 8 CFR §213a.3(b)(1)(i). However, if the sponsor is aware that the immigrant has received public benefits, and fails to file the change of address the sponsor could receive a fine of between $2,000 and $5,000. 8 CFR §213a.3(b)(1)(i).

Enforcement of the Contract

Immigration regulations specifically give to the immigrant the right to enforce the sponsor’s support obligation. The most likely place to find enforcement by the immigrant is in the context of divorce proceedings. Comments to the final regulations mentioned that this right was one that the immigrant could voluntarily give up as part of divorce negotiations and proceedings, 71 Fed. Reg. at 35or to effectuate a settlement. In fact, it is possible that by enforcing the affidavit of support in family court, a spouse who would not normally be granted alimony could be granted support for an indefinite period of time. The affidavit of support thus creates a tangible and potentially permanent economic tie between the sponsor and the immigrant.See K. Abrams, “Immigration Law and the Regulation of Marriage,” 91 Minn. L. Rev. 1624 (200

The courts adjudicating I-864 affidavits of support found that both state and federal courts have jurisdiction to hear the cases and to order enforcement of the I-864.

Enforcement of the Contract by a Federal, State, or Local Governmental Agency

Once residency is granted, the support contact goes into effect. 8 CFR §213a.2(e)(1).Should the immigrant then receive public benefits, there are consequences that may affect the sponsor as well as the immigrant.

In order to recover benefits paid to the immigrant, the federal, state and local government agency that provided the benefits to the immigrant must make a request for reimbursement by personal service upon the sponsor. 8 CFR §213a.4(a). The sponsor is required to respond to the request within 45 days by either paying the reimbursement or making arrangement for a payment plan. If the sponsor does not respond within the required period of time, then the agency may bring a lawsuit to recover the funds. IThe regulations contain a statute of limitations, which states that no action can be brought 10 years after the date the individual last received means-tested public benefits. INA §213A(b)(1)(B)(2)(C).

Although federal, state and local government agencies have the right to bring suit for reimbursement of funds paid to immigrants whose sponsors have promised to support the immigrants at 125 percent of the poverty guidelines, only the State of Connecticut has brought suit against the sponsors for such reimbursements.A. Somma, “State Suing Immigrants’ Sponsors; Controversy Centers on Public Assistance,” Courant.com (Mar. 1, 2007). The Connecticut Department of Social Services brought suit against some 300 sponsors because the immigrants received some type of public assistance. However, Richard Blumenthal, the Attorney General of Connecticut, has since stopped the efforts of the agencies until his office has time to review legal and procedural issues. Id. It is difficult to know if Connecticut is a lone ranger in attempting to collect from sponsors or if this is the beginning of a larger-scale trend.
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