I-864 Changes

[david_dawei]

Here are the applicable links for the I-864 changes... and below that are a few observations I thought worth mentioning, although the coverage of the rule changes cover all visa types affected not just family-based ones and the write-up has too much discussion to easily summary...

Do not assume that any excerpt shown here fully represents the issue; Read the write-up's applicable sections.

All statements below are from the Federal Register text, except for those cases were I formatted the material for readability and added underlines for emphasis.

Maybe a glaring omission is the discussion on household income and household members.. but this has been discussed before and will likely continue to as a common and applicable topic.

Probably the items to note:
- household members who are used as joint sponsors (I-864a) can "pool" their income with the sponsor; they make up the different. This is not the case for joint sponsors (I-864) not listed as household members].
- No more than one joint sponsor is allowed for a sponsored individual; although different sponsors may be applied to different individuals.
-------------------------------------------
Federal Register: I-864 (final rule)

DOS: Revised Rules for I-864
-------------------------------------------

- Use of I-864EZ

A sponsor may use this Form I-864EZ:
1) The sponsor is the Form I-130 visa petitioner
2) and there is no need for a joint sponsor or a Form I-864A)
3) the affidavit of support is filed on behalf of only one intending immigrant;
4) the sponsor is seeking to qualify based on the sponsor's own income alone (not on the basis of assets);
5) and all the sponsor's income is shown on IRS Forms W-2.


- I-134 (no changes)

The discretion concerning use of Form I-134 has long been quite broad. The sole purpose of 8 CFR 213a.5 is to retain that broad discretion. For this reason, the final rule makes no change to 8 CFR 213a.5.


- Discretion can discount the I-864

The interim rule, at 8 CFR 213a.2?2)(v), provided that a Department of State officer, immigration officer, or immigration judge may find an affidavit of support to be insufficient, even if the sponsor's income meets the income threshold, if the officer finds that it is unlikely that the sponsor will be able to maintain that income.

It is not enough that the sponsor has sufficient income. Section 213A(f)(1)(E) of the Act clearly specifies that the sponsor must demonstrate that he or she can maintain that income.

The final rule does specify, however, that, if the sponsor satisfies all other requirements of section 213A of the Act, a sufficient income will ordinarily make the affidavit of support sufficient, unless, on the basis of the specific facts of a given case, the deciding officer finds that the sponsor has not demonstrated his or her ability to maintain that income over time.

In most cases, the affidavit of support will carry the greatest weight. In a particular case, however, there may be specific facts about the intending immigrant's situation, under the factors specified in section 212(a)(4)( B ) of the Act--the alien's age, health, family status, assets, resources and financial status, education and skills--that warrant a finding that the intending immigrant remains inadmissible on public charge grounds, even if the affidavit of support meets the requirements of section 213A of the Act.


- Concealment or misrepresentation

According to the Supreme Court's decision in Kungys v. United States, 485 U.S. 759 (1988), a concealment or misrepresentation of fact is material if disclosure of the truth would have had a natural tendency to influence an official decision. The critical question is whether the sponsor has, and can maintain, a household income that is at least 125 percent of the Poverty Guidelines for a household of the same size. Certainly, misrepresentations or concealments about household size, income, or employment history would always be material. Whether other concealments or misrepresentations would be material would depend on the facts of particular cases.


- Verifying income, employment, assets

The Federal 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. To facilitate this verification process, the sponsor, joint sponsor, substitute sponsor, or household member must sign and submit any necessary waiver form when directed to do so by the immigration officer, immigration judge, or Department of State officer who has jurisdiction to adjudicate the case to which the Form I-864 or I-864A relates.

A sponsor's, substitute sponsor's, joint sponsor's, or household member's failure or refusal to sign any waiver needed to verify the information when directed to do so constitutes a withdrawal of the Form I-864 or I-864A, so that, in adjudicating the intending immigrant's application for an immigrant visa or adjustment of status, the Form I-864 or Form I-864A will be deemed not to have been filed.


- When does obligation commence

The interim rule did not specify precisely when the obligations under Form I-864 or Form I-864A actually commence.

Nevertheless, the final rule clarifies that the mere signing of Form I-864 or Form I-864A does not impose any obligations on the sponsor, joint sponsor, or household member. A sponsor may file a fully sufficient Form I-864, but the intending immigrant may be held to be inadmissible on some other basis. In another case, the intending immigrants included in a Form I-864 or Form I-864A may not all acquire permanent residence on the same day. The final rule clarifies that, for the obligations to arise, the intending immigrant must actually acquire permanent resident status on the basis of the application supported by the Form I-864 or Form I-864A.


- Conditions stopping support Obligation

Section 213A of the Act specifies the two circumstances that end the support obligation: The sponsored immigrant's (1) naturalization or (2) having acquired 40 quarters of coverage under the Social Security Act.

The interim rule added two more:
1) The death of the sponsor or sponsored immigrant or
2) the sponsored immigrant's abandonment of status and permanent departure from the United States.

It is not always the case, however, that an alien who abandons permanent residence does so formally, such as by filing a USCIS Form I-407 when departing the United States. In many cases, the issue of abandonment is determined only in a later removal proceeding. The final rule makes clear that a formal adjudication in a removal proceeding that an alien has abandoned permanent resident status will also terminate any remaining obligations under any Form I-864 or I-864A submitted when the person became a permanent resident.

Support stops when the sponsored immigrant:
1) becomes a citizen
2) Has worked, or can be credited with, 40 qualifying quarters of coverage
3) Ceases to hold the status of an alien lawfully admitted for permanent residence and departs the United States
4) Obtains in a removal proceeding a new grant of adjustment of status as relief from removal
5) The sponsor, substitute sponsor or joint sponsor dies. A household member's obligation under Form I-864A terminates when the household member dies.
6) Withdrawal of Form I-864 or Form I-864A.
7) The sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement


- Disavowing a I-864

VISA:
the sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement to act as sponsor, substitute sponsor, joint sponsor, or household member if he or she does so in writing and submits the document to the Department of State officer before the actual issuance of an immigrant visa to the intending immigrant.

Once the intending immigrant has obtained an immigrant visa, a sponsor, substitute sponsor, joint sponsor, or household member cannot disavow his or her agreement to act as a sponsor, joint sponsor, or household member unless the person or entity who filed the visa petition withdraws the visa petition in writing, as specified in 8 CFR 205.1(a)(3)(i)(A) or 8 CFR 205.1(a)(3)(iii)? and also notifies the Department of State officer who issued the visa of the withdrawal of the petition.

ADJUSTMENT:
In an adjustment of status case, once the sponsor, substitute sponsor, joint sponsor, household member, or intending immigrant has presented a signed Form I-864 or Form I-864A to an immigration officer or immigration judge, the sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement to act as sponsor, substitute sponsor, joint sponsor, or household member only if he or she does so in writing and submits the document to the immigration officer or immigration judge before the decision on the adjustment application.


- Joint sponsor deemed not necessary

Any person completing and submitting a Form I-864 as a joint sponsor or a Form I-864A as a household member is not bound to any obligations under section 213A of the Act if, notwithstanding his or her signing of a Form I-864 or Form I-864A, the Department of State officer (in deciding an application for an immigrant visa) or the immigration officer or immigration judge (in deciding an application for admission or adjustment of status) includes in the decision a specific finding that the sponsor or substitute sponsor's own household income is sufficient to meet the income requirements under section 213A of the Act.


- Domicile:

The final rule does provide in section 213a.2?1)(ii) a single exception, under which a sponsor who is not domiciled in the United States (i.e., cannot show his or her residence abroad has been only temporary) may submit a Form I-864. The sponsor may do so only if the sponsor establishes, by a preponderance of the evidence, that the sponsor will have established his or her domicile in the United States no later than the date of the intending immigrant's admission or adjustment of status.

The intending immigrant will, however, be inadmissible as an alien likely to become a public charge if the sponsor has not actually become domiciled in the United States by the date of the decision on the intending immigrant's application for admission or adjustment of status. Thus, the sponsor must arrive in the United States before, or at the same time as, the intending immigrant, and the sponsor must intend to establish his or her domicile in the United States.


- Death of Petitioner

If the petitioner dies before approval of the visa petition, there is no basis for approving the visa petition.

The legal situation is different if the visa petitioner dies after approval of the visa petition.

Section 205 of the Act authorizes revocation of approval of a visa petition for ``good and sufficient cause.'' The related regulation, 8 CFR 205.1(a)(3)(i)? provides that the petitioner's death automatically revokes approval of a family-based immigrant petition. This same regulation, however, allows the approval to remain in force if USCIS, in the exercise of discretion, determines that for humanitarian reasons revocation would be inappropriate.

Public Law 107-150 amended section 213A(f)(5) of the Act to permit another relative to sign the affidavit of support if the petitioner dies after the visa petition is approved, where it is determined that revoking the approval would not be appropriate.

A substitute sponsor must be either a citizen or national, or else an alien lawfully admitted for permanent residence. The substitute sponsor must also be at least 18 years of age, and must have a domicile in the United States.


- Death of Petitioner (who was the spouse)

The final rule also adopts a special rule for cases in which the alien beneficiary was, before the petitioner's death, the spouse of a citizen. Under section 201( b )(2)(A)(i) of the Act, if an alien was married to a citizen for at least 2 years at the time of the citizen's death, the alien may file a petition on his or her own behalf, so long as the alien does so within 2 years of the citizen's death, and has not remarried. Section 212(a)(4)?i)(I) of the Act, in turn, relieves that alien of the affidavit of support requirement, once USCIS approves the new petition.

The final rule provides that it will not be necessary for the beneficiary to file a new petition (Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant) as the widow(er) of a citizen. Instead, the final rule provides for automatic conversion of the citizen's spousal Form I-130, Petition for Alien Relative, to a widow(er)'s petition upon the citizen's death if, on that date, the widow(er) meets the requirements of section 201( b )(2)(A)(I) of the Act as it relates to widow(er)'s petitions. This automatic conversion will apply whether the citizen spouse dies before or after approval of the Form I-130.


- Change of address

The final rule provides that USCIS will accept the United States Postal Service certificate of mailing and a return receipt or delivery confirmation as proof that the sponsor or joint sponsor filed the Form I-865 with the office whose address appears on the certificate of mailing and return receipt. If the sponsor uses a commercial delivery service, USCIS will accept the delivery service's shipping label and proof of delivery of the properly completed Form I-865 to the appropriate USCIS office.


- Children born after visa issuance

This provision waives the immigrant visa requirement for certain children who accompany their immigrant parent(s) to the United States, but who are born after issuance of the immigrant visa to the parent(s). These children are not counted against the numerical limits on immigration, nor is any separate visa petition filed for them. Thus, section 204 of the Act does not form the basis of their admission, and they are not properly classified as ``immediate relatives,'' ``family-based immigrants'' or ``employment-based immigrants.''