Introduction

Overcoming the Presumption of Public Charge in Scenarios where a Qualifying Family Member is Filing an Immigrant Visa Petition or Adjustment of Status Application on Behalf of an Alien

Rules for Qualifying to Sponsor an Alien in the United States for Adjustment of Status

Pursuant to INA § 213A(f) [link], a “sponsor” is an individual who executes an affidavit of support for an alien seeking admission or adjustment of status to the United States. A sponsor is statutorily defined in INA § 213A(f) as a person who:

(A) is a citizen or national of the United States or an alien who is lawfully admitted to the United States for permanent residence;
(B) is at least 18 years of age;
(C) is domiciled in any of the several States of the United States, the District of Colombia, or any territory or possession of the United States;
(D) is petitioning for the admission of the alien under INA § 204; and
(E) demonstrates the means to maintain an annual income equal to at least 125 percent of the Federal poverty line1

In order to act as a sponsor, an individual must file a Form I-864, Affidavit of Support.

Situations Where Sponsor is not Required

The Form I-864 requirement is inapplicable for (except in most cases involving a relative) diversity immigrants, special immigrants, self-petitioning immigrants (widows or widowers, spouses or children subjected to battery or extreme cruelty, and certain children, spouses, and grandparents under the USA Patriot Act), refugees and asylees applying for adjustment, Cuban adjustment applicants, registry beneficiaries,2 and persons who have already earned or can be credited with 40 quarters of coverage under the Social Security Act3. 4Other persons who are exempted are in family-based petitions where the beneficiary is the child of a U.S. citizen who will be immediately eligible for naturalization pursuant to INA § 320(a).5 Other persons who do not require affidavits of support in seeking admission to the United States or adjustment of status are children admitted as lawful permanent residents under INA § 211(a) and 8 C.F.R. § 211.1(b)(1) who are returning with a parent who is a U.S. citizen or lawful permanent resident,6 derivative beneficiaries of employment-based immigrant visa petitions, and applicants for K-17 and K-38 visas.9

Rules for Meeting the Income Requirement for Sponsorship

For sponsors to demonstrate that they can maintain an annual income equal to at least 125 percent of the Federal poverty line, they must provide certified copies of their last three years of federal income tax returns along with a statement under oath that the submitted returns are genuine.10 Alternatively, this requirement can be satisfied if either the sponsors or sponsored aliens can demonstrate holding significant assets.11,12 If the sponsor is on active duty in the United States armed forces and is the spouse or child of the sponsored alien, he or she may qualify by demonstrating the means to maintain an annual income of only 100 percent of the federal poverty line.13

Rules for Co-Sponsorship

In certain employment based cases, the following individuals qualify as sponsors without petitioning for the alien when:

He or she is not petitioning for the alien, but is a relative of the sponsored alien who has filed a classification petition, and has a significant ownership interest in the entity that filed the petition; and14
Demonstrates the ability to meet the income requirement (or in the case of an affidavit for a spouse or minor child of the petitioner, 140 percent of the Federal poverty line instead of 125 percent); or15
Does not meet the income requirement, but accepts joint and several liability together with a person in order to satisfy the requirement.16,17

If the joint-sponsor lives in the same household as the petitioning sponsor, he or she must sign a Form I-864A, Contract Between Sponsor and Household Member, in conjunction with the petitioning sponsor, who must file a regular Form I-864.18 In this case, the joint-sponsor need not be a U.S. citien or lawful permanent resident.19

Other joint sponsors must file their own Form I-864s and be U.S. citiens or lawful permanent residents who are at least 18 years of age who currently live in the United States.20 If the joint sponsor is on active duty in the U.S. armed forces and the immigrant is his or her spouse or child, the income requirement is only 100 percent of the federal poverty line.21

Certain other persons meet the statutory definition of “sponsor” provided that:

He or she accepts joint and several liability with a petitioning sponsor or a relative of an employment-based immigrant (provided that the relative has a significant ownership stake in the entity that seeks to employ the immigrant) and demonstrates the means to maintain an annual income of at least 125 percent of the federal poverty line;22 or
Is a spouse, parent, mother-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, grandparent, or grandchild of a sponsored alien or the legal guardian of a sponsored alien, meets all of the requirements for sponsorship save for meeting the income requirement, and executes an affidavit of support for the alien23 in a case in which the original petitioner for the alien died after approval of the petition and the Secretary of Homeland Security determines that revocation of the petition under INA § 205 would be inappropriate,24 or the petition is being adjudicated under the surviving relative consideration.25

Family members taking up a petition after the death of an original sponsor may file a simplified Form I-864EZ, Affidavit of Support Under Section 213A of the Act when there is only one beneficiary, the sponsor has a W-2, and there is no requirement to demonstrate significant assets (because the income requirement cannot be otherwise satisfied), and there are no joint sponsors.26 Co-sponsors from the same household must still file a Form I-864A. In special cases where the person is not required to file a Form I-864 (persons who have earned 40 quarters of coverage under the Social Security Act, who are intending immigrant children who are slated to become U.S. citizens under provisions of the Child Citizenship Act of 2000, or who are self-petitioning widows or widowers or battered spouses or children) must file a Form I-864W, Intending Immigrant’s Affidavit of Support.27 If a person is not required to file a Form I-864, but is required to meet the public charge ground (see the next section), he or she may use a Form I-134, Affidavit of Support.28

Overcoming the Presumption of Public Charge in Scenarios where a Qualifying Family Member is Filing an Immigrant Visa Petition or Adjustment of Status Application on Behalf of an Alien

In scenarios in which a family member is filing an immigrant visa application on behalf of an alien, or where a family member is commencing an adjustment of status process for an alien to obtain an employment-based immigrant visa to work at an organization that the petitioning family member has a significant ownership stake in, the application must overcome the presumption of public charge under INA § 212(a)(4) [link]. The statute regarding the public charge states that any alien who in the determination of the consular officer handling his or her petition, or the Attorney General, will likely at any time become a public charge, is inadmissible.29

In determining whether an alien is likely to at any time become a public charge, the statute instructs the consular officer assigned the case or the Attorney General to, at a minimum, consider the following factors:

1. Age;
2. Health;
3. Family status;
4. Assets, resources, and financial status; and
5. Education and skills30

As we noted before, a family member acting on behalf of an alien applying for an immigrant visa or adjustment of status is required to execute an affidavit of support in order that the application be approvable.31 This requirement also derives from INA § 212(1)(4)(C)(ii).32 The statute that provides the basis for determining whether an alien is likely to a public charge provides that the affidavit of support may be considered in determining whether or not an alien is likely to become a public charge.33 Provided that the affidavit of support demonstrates facts that show the alien is not likely to be a public charge, the affidavit of support will generally overcome that hurdle.34

INA § 212(a)(C) requires that any alien seeking admission or adjustment of status under INA § 201(b)(2) [spouses, parents, and minor children of U.S. residents] or INA § 203(a) [preference family petitions] is excludable unless:

He or she has obtained status as a spouse or child of a U.S. citizen under INA §§ or 204(a)(1), or
He or she has obtained classification pursuant to INA §§ 204(a)(1)(B)(i)-(ii);
He or she has obtained classification or status as a Violence Against Women Act (VAWA) self-petitioner; or 35
The sponsor, including any additional sponsor required by INA § 213A(f) or any alternative sponsor permitted under INA § 213A(f)(5)(B), has executed an affidavit of support.36

If where a petition for an employment-based immigrant visa or adjustment of status to an employment-based preference category is filed by a relative of an alien with a significant ownership stake in the entity that is seeking to employ the alien, the affidavit of support must be executed by the petitioning relative.38

The requirements to overcome the presumption of public charge in this situation are only inapplicable in a few very select cases:

The alien is a VAWA self-petitioner;
The alien is an applicant for, or holder of, nonimmigrant status under INA § 101(a)(15)(U),38 or
The alien is a qualified alien described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 39, 40

  1. List derives from INA §§ 213A(f)(1)(A)-(E)
  2. Kurzban, Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. (ALIA Publications 14th ed. 2014) 76, citing; INA § 249 for statute on registry benefits
  3. Kurzban 76, citing; 8 C.F.R. § 213a.2(a)(2)(ii)(C); 71 FR 35732, 35733 (June 21, 2006); Memo, Cronin, Acting Ex. Assoc. Comm. Programs, HQPGM 70/1 (May 17, 2001), published on AILA INfoNet at Doc. No. 01060729; [explaining that quarters are based on income calculated during a year rather than the number of days worked during a quarter].
  4. Kurzban 76, citing; Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.1.13 (June 27, 2006) at p.5, published on AILA InfoNet at Doc. No. 06063013; Memo, Cronin, Acting Assoc. Comm. Office of Program (70/23.1) (Mar. 7, 2000), published on AILA InfoNet at Doc. No. 00032704
  5. Kurzban 76, citing; INA § 320(a); 8 C.F.R. 213a.2(a)(2)(ii)(E); Memo, Cronin, Acting Ex. Assoc. Comm. Field Operations, HQ PGM 50/10 (May 17, 2001), published on AILA InfoNet at Doc. No. 01060821; Cable, DOS, 01-State-1050806 (June 16, 2001), published on AILA InfoNet at Doc. No. 01061691.
  6. Kurzban 76
  7. For fiancées of U.S. citizens seeking admission as lawful permanent residents where the couple is planning to get married within 90 days of the K-1 beneficiary entering the United States
  8. For spouses of U.S. citizens seeking admission as lawful permanent residents
  9. Id.
  10. INA § 213A(f)(6)(i)
  11. INA § 213A(f)(6)(ii)
  12. Kurzban 78, explaining that pursuant to regulations and agency guidance, bank statements covering the past 12 months, stocks, bonds and CDs and dates acquired, personal property, and real estate are examples of things that may help demonstrate “significant assets” in order to satisfy the requirement; citing, 8 C.F.R. § 213a.2(c)(2)(iii)(B); Cable, DOS, 97-State-211673 (Nov. 8, 1997), reprinted in 74 No. 48 Interpreter Releases 1923-30 (Dec. 18, 1997)
  13. INA § 213A(f)(3)
  14. INA § 213A(f)(4)(A)
  15. INA § 213A(f)(B)(i)
  16. Pursuant to INA § 213A(f)(2), this person is a “sponsor”
  17. INA §§ 213A(f)(4)(A)-(B)
  18. Kurzban 77
  19. Id., citing; 8 C.F.R. § 213a.2(c)(2)(i)(C)(1); 8 C.F.R. § 213a.1
  20. Kurzban 77, citing; 8. C.F.R. § 213a.2(c)(1)
  21. Kurzban 77, citing; 8 C.F.R. § 213a.2(c)(2)(iii)(C)
  22. INA § 213A(f)(5)(A)
  23. INA § 213A(f)(5)(B)
  24. INA § 213A(f)(5)(B)(i)
  25. See INA § 204(I) for statute on surviving relative consideration
  26. Kurzban 79, citing; 8 C.F.R. § 213a.2(a)(1)(i)(A)
  27. Kurzban 79
  28. Id.
  29. INA § 212(a)(4)(A)
  30. Entire list from INA §§ 212(a)(4)(B)(I)-(V)
  31. INA 213A(f)(5)(B)
  32. “In addition to
  33. INA § 212(a)(4)(B)(ii)
  34. Kurzban 75, explaining that affidavits of support in this situation will generally overcome the presumption of public charge unless it does not provide evidence that the alien would likely be a public charge under INA § 212(a)(4)(B)
  35. This and above two items on the list derive from INA §§ 212(a)(C)(i)(I)-(III)
  36. INA § 212(a)(C)(ii)
  37. INA § 212(a)(D)
  38. Describing certain victims of criminal activity and certain aliens who have been or are being helpful to certain criminal activities
  39. 8 U.S.C. 1641(c), describing certain battered spouses and children
  40. All three items on this list derive from INA §§ 212(a)(E)(i)-(iii)

Resources and materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 75-79, Print. Treatises & Primers.