Introduction

On May 23, 2019, President Donald Trump issued a Presidential Memorandum titled “Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens” [PDF version]. The purpose of the memorandum is to direct relevant federal agencies to better enforce immigration sponsorship requirements and ensure that non-citizens do not receive means-tested public benefits for which they are ineligible under the immigration laws. In this article, we will discuss the directives in President Trump’s May 23, 2019, Presidential Memorandum.

To learn more about the issues discussed in this article, please see our full article on the current public charge and sponsorship statutes and regulations [see article]. We discuss issues tangentially related to public charge generally in our growing selection of articles on Family Immigration [see category].

Purpose and Policy

President Trump stated that it is the policy of his administration to “ensur[e] that existing immigration laws are enforced.” The instant memorandum is concerned with sponsor liability for certain beneficiaries of family-sponsored immigrant visa petitions: “The immigration laws currently require that, when an alien receives certain forms of means-tested public benefits, the government or non-government entity providing the public benefit must request reimbursement from the alien’s financial sponsor.” President Trump added that the “laws also require that, when an alien applies for certain means-tested public benefits, the financial resources of the alien’s sponsor must be counted as part of the alien’s financial resources in determining both eligibility for the benefits and the amount of benefits that may be awarded.” President Trump added that those who agree to be financial sponsors for aliens are expected to fulfill their financial commitments under the relevant laws.

President Trump stated that “[s]everal means-tested public benefits programs — including the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and Temporary Assistance for Needy Families (TANF) — require updated procedures and guidance to ensure that the requirements of existing law are enforced.” President Trump stated that his purpose for issuing the instant memorandum was “to direct relevant agencies to update or issue procedures, guidance, and regulations, as needed, to ensure that ineligible non-citizens do not receive means-tested public benefits…”

Statutory Background

Section 213A of the Immigration and Nationality Act (INA) requires an alien’s sponsor to sign an affidavit of support. The affidavit pledges the sponsor to providing financial support for the alien if the alien applies for or receives means-tested public benefits. The affidavit of support requirement took effect on December 19, 1997. Under section 213A, when a sponsored alien receives a means-tested public benefit, the benefit-granting government or non-government entity is required to request reimbursement from the alien’s sponsor.

Under section 421 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, codified at 8 U.S.C. 1631, the income and resources of an alien’s sponsor are deemed to be income and resources of the alien for determining eligibility for benefits and the amount of benefits for the alien.

There are limited exceptions to the deeming and reimbursing requirements. These exceptions — cited to by the President — are as follows:

Aliens who have been battered or subjected to extreme cruelty — 8 U.S.C. 1631(f);
Aliens who would be unable to obtain food and shelter without the public benefits — 8 U.S.C. 1631(e);
Children and pregnant women who are lawfully residing in the United States and are receiving medical assistance from a State under the Children’s Health Insurance Program or Medicaid — 42 U.S.C. 1396(b)(v)(4); and
Aliens receiving SNAP benefits who are members of the sponsor’s household or are under 18 years old — 7 U.S.C. 2014(i)(2)(E).

President Trump stated that “agencies are not adequately enforcing these requirements.” To this effect, he concluded that “[s]ome agencies have insufficient procedures and guidance for implementing these reimbursement and deeming requirements of the immigration laws.” He specifically faulted the U.S. Department of Health and Human Services (HHS) for having “not adequately issued guidance on either sponsor reimbursement or sponsor deeming for the Medicaid program.” He noted that for other programs for which guidance does exist, the guidance is inadequate for enforcing the reimbursement and deeming requirements of the immigration laws.

Presidential Directives

President Trump directed the Secretaries of Agriculture and HHS to “take all appropriate steps to enforce section 213A of the INA” within 90 days of May 23, 2019. He provided that they do this by establishing or updating existence guidance and procedures on sponsor reimbursement and by providing such procedures and guidance to all entities involved in enforcement of such actions. President Trump required that this guidance include (1) procedures for recovering reimbursement; (2) procedures for notification to the sponsor of the amounts owed and other relevant issues; (3) procedures for notifying the Attorney General and the Secretary of Homeland Security about the sponsor’s non-payment; (4) procedures for data sharing with federal agencies; (5) procedures for determining how the sponsor’s income and resources will be attributable to the alien in determining the alien’s eligibility for a means-tested public benefit and the amount of benefits that should be awarded; and (6) procedures for determining whether the alien is covered by any exceptions to the deeming or reimbursement requirements. The Secretaries of Agriculture and HHS will be required to provide the pertinent Federal and State officials described above with a memorandum detailing the new procedures and guidance by the end of fiscal year 2019 (September 30, 2019).

The Secretaries of State and Homeland Security, in consultation with the Secretaries of Agriculture and HHS, will be required to advise current sponsors and prospective sponsors, others who may be liable for reimbursement of public benefits, and sponsored aliens and prospective sponsored aliens of how the reimbursement and deeming requirements will be enforced under the new policies.

Within 180 days of May 23, 2019, the Secretaries of Agriculture and HHS and the Commissioner of Social Security will be required to coordinate with the Secretaries of State and Homeland Security on several points. This coordination will cover (1) the establishment and maintenance of records regarding each financial sponsor’s reimbursement obligations and status; and (2) the establishment of information-sharing procedures to ensure that these records are made available to the Secretaries of State and Homeland Security for purpose of enforcing the immigration laws and regulations.

The Secretaries of Agriculture and HHS and the Commissioner of Social Security will be required to coordinate with the Secretary of the Treasury to establish information-sharing procedures with the Treasury Offset Program, codified at 31 C.F.R. 285.5, to ensure that collection of reimbursement is ordered by letters of reimbursement.

The Secretaries of Agriculture and HHS will be required to submit a report to President Trump within 180 days of May 23, 2019, on all actions taken in compliance with his directive. Within 30 days of May 23, 2019, the Secretaries of Treasury, Agriculture, Commerce, Labor, HHS, Housing and Urban Development, Transportation, and Education shall submit a report to President Trump on the steps they have taken in accordance with the memorandum and the results of their review of whether additional steps shall be necessary.

Finally, the Secretary of Treasury and the Secretary of Homeland Security will be required to refer all cases in which financial sponsors fail to satisfy their reimbursement obligations to the Attorney General for enforcement of such obligations, in compliance with 8 U.S.C. 1183a(b)(2), (e).

Conclusion

President Trump’s memorandum signals that the Administration will work to more aggressively enforce deeming and reimbursement requirements for sponsors and sponsored aliens. The provisions of the memorandum come as the Administration is considering broadening the scope of laws relating to public charge and a general shake-up in the leadership of the Department of Homeland Security [see article]. It will be important going forward for sponsors to be aware of all of their obligations under the immigration laws and for prospective sponsors to consider the changing environment when deciding if they will be able to adequately comply with their sponsorship obligations.

Prospective sponsors and current sponsors should consult with an experienced immigration attorney for case-specific guidance on the current rules and potential changes going forward. In general, an experienced immigration attorney can assist not only with meeting the sponsorship requirements and understanding the sponsorship obligations, but also with the immigrant visa or adjustment of statsu petitioning process more generally.

Please continue to follow our website for further updates on related issues.