Section 212(a)(4) of the Immigration and Nationality Act (INA) prohibits you from receiving an immigrant visa or adjusting to permanent residence if you are likely, at any time, to become a public charge. To show you are not inadmissible on this ground, a Form I-864, Affidavit of Support, filed on your behalf is required in most family-based and some employment-based immigrant visa or adjustment cases.
What Factors are Considered When Determining Whether A Person is Likely to Become a Public Charge?
“Public charge” means you are likely to become primarily dependent on the U.S. government for subsistence, either through receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.
Totality of the Circumstances
U.S. Consulates and USCIS consider certain factors, including your age, health, family status, assets, resources, financial status, education and skills. The officer weighs the positive and negative factors and examines the “totality of the circumstances” when making a public charge determination.
Under the totality of the circumstances test, a person “who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support is excludable as likely to become a public charge.”
Receipt of Cash Benefits
If you have received certainly publicly funded benefits, the officer takes this into account. The types of cash benefits received that could lead the officer to find you will become a public charge include:
- Supplemental Security Income (SSI) under Title XVI of Social Security Act
- Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program) (Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge)
- State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
- Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution). (Note: costs of incarceration for prison are not considered for public charge determinations)
Receiving cash assistance for income maintenance and institutionalization for long-term care (e.g nursing home) at government expense is also considered, but in the context of the totality of the circumstances.
Public benefits that one family member receives are not attributed to other family members, unless the cash benefits amount to the sole support of the family.
This list is not exhaustive. The officer will consider receipt of any cash benefits not listed above by examining the totality of the circumstances. A public charge determination, however, cannot be based solely on previous (or current) receipt of public benefits.
Non-cash or special-purpose cash benefits are generally not taken into account as they are usually supplemental and do not make you primarily dependent on the government for subsistence. Examples are:
- Medicaid and other health insurance and health services, other than support for long-term institutional care
- Children’s Health Insurance Program (CHIP)
- Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
- Housing benefits
- Child care services
- Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
- Emergency disaster relief
- Foster care and adoption assistance
- Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
- Job training programs
- Transportation vouchers
- In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
- State and local programs that serve similar purposes as the federal programs listed above (e.g. “Medi-Cal” in California).
- Federal, state, or local programs in which benefits are paid in-kind, by voucher or by any means other than cash
In addition, cash payments that have been earned, such as Social Security benefits, old age survivors disability insurance (OASDI), government pensions, and veterans’ benefits, are not considered. Unemployment compensation is also not taken into account for public charge purposes.[UPDATE: On August 14, 2019, the U.S. Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds final rule that governs application of the public charge inadmissibility ground under INA section 212(a)(4). The revised rule goes into effect on October 15, 2019. It expands the programs that will be considered in public charge determinations to include previously excluded non-emergency Medicaid for non-pregnant adults, the Supplemental Nutrition Assistance Program (SNAP), and several housing programs.]
Form I-864, Affidavit of Support
By itself, the absence or insufficiency of an affidavit of support — when required by the law governing certain immigration benefits, such as most family-based immigrant visa and adjustment applications — can lead the officer to find you are likely to become a public charge.
When is a Form I-864, Affidavit of Support, Required?
The Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are unlikely to rely on the U.S. government for subsistence.
Normally, you must submit a Form I-864, Affidavit of Support, completed by the petitioner to support your immigrant visa or adjustment of status application if you fall in of any of these categories:
- Immediate relatives (parents, spouses, and unmarried children under the age of 21, including orphans) of U.S. citizens
- Relatives who qualify for immigration under one of the family based preferences:
- First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
- Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
- Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
- Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
- Employment based preference immigrants when a U.S. citizen or permanent resident relative (spouse, parent, child, adult son or daughter, brother or sister) filed the immigrant visa petition, or the relative has a significant ownership interest (5% or more) in the entity that filed the petition.
You do not need to submit an I-864, even if you fall in any of the above categories, if you can show you:
- Already worked 40 qualifying quarters as defined in Title II of the Social Security Act
- Can be credited with 40 qualifying quarters as defined in Title II of the Social Security Act
- Are the child of a U.S. citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under Section 320 of the Immigration and Nationality Act, as amended by the Child Citizenship Act of 2000.
What is the Form I-864, Affidavit of Support, and Who Submits It?
The I-864 serves to prove you have the financial means to live in the U.S. without needing welfare or financial benefits from the U.S. government.
The U.S. citizen or permanent resident who filed the Form I-130 immigrant petition for you must be the sponsor who signs and submits the I-864 on your behalf. Sponsors are also required to file their federal tax returns for the three most recent years (if required by law) and submit their last year’s tax returns with the I-864, regardless of their income level. In some situations, a joint sponsor or substitute sponsor is required and allowed.
The I-864 is a legally enforceable contract with the U.S. Government in which the sponsor, joint sponsor or substitute sponsor agrees to support the immigrant at a minimum annual income level. In the contract, they also agree to reimburse any federal or state agency that provides a means-tested benefit to the immigrant.
The sponsored immigrant may sue a sponsor, joint sponsor or substitute sponsor to enforce the contract to provide financial support. If the immigrant ever receives a means-tested benefit, the agency that provided it can also seek reimbursement from the sponsor, joint sponsor or substitute sponsor.
The contractual obligations under the I-864 begins when the immigrant visa or green card is granted. The affidavit of support may be withdrawn only before permanent residence is granted.
The contractual obligations continue until the sponsored immigrant becomes a U.S. citizen, or can be credited with 40 qualifying quarters of work (generally 10 years of work) in the United States. The sponsor, joint sponsor and substitute sponsor’s obligations also end if they or the sponsored immigrant dies or if the sponsored immigrant ceases to be a lawful permanent resident.
What are the Basic I-864 Requirements?
A sponsor, joint sponsor, and substitute sponsor must:
- Be a U.S. citizen or national or a permanent resident.
- Be at least 18 years old.
- Be domiciled (live) in the United States or a territory or possession. (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status)
- Meet all of the financial requirements
Normally, sponsors must show their current annual household income is at least 125% of the federal poverty level for their household size.[UPDATE: On August 14, 2019, the U.S. Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds final rule that governs application of the public charge inadmissibility ground under INA section 212(a)(4). The revised rule goes into effect on October 15, 2019. It states applicants are expected to have household income, assets, resources, and support from a sponsor of at least 250% — not 125% — of the federal poverty guidelines for the household size. Meeting this income requirement helps to show the applicant is not likely to become a public charge under the totality of the circumstances test.]
The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.
The household size includes the sponsor, the sponsor’s spouse (even if they are separated or live separately), the sponsor’s unmarried children under 21 (regardless of where they live), any person listed as a dependent on the last tax return, the intending immigrant, and any derivative beneficiaries who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant).
When sponsors do not meet the minimum income requirement, they may use alternatives. The most common way is to submit a separate Form I-864 from a joint sponsor who meets the income requirement independently for his or her household size, which includes the intended immigrant. .
A joint sponsor must meet all the same requirements as the sponsor, except the joint sponsor does not have to be related to the immigrant.
Each immigrant visa or adjustment applicant may have only one joint sponsor. In in family-based preference category cases involving a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.
Lawsuits against joint sponsors to enforce the I-864 do not usually arise unless there is a dissolution of marriage between the sponsor and immigrant or the sponsor is completely unable or unwilling to support the immigrant.
If the petitioner (sponsor) dies after approval of the visa petition, and USCIS agrees to allow the immigrant visa or adjustment process to continue, a substitute sponsor must file a separate Form I-864.
In addition to meeting the same requirements as the sponsor, substitute sponsors must be related to the intending immigrant in one of the following ways:
- Child (if at least 18 years of age)
- Legal guardian of the beneficiary
Substitute sponsors exist only when the sponsor has died. As such, lawsuits to enforce the I-864 against substitute sponsors arise only in the event of a sponsor’s death.
For more information, read our related article, Form I-864: Alternatives to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.
The proper filing of a Form I-864 is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most immigrant visa or adjustment cases. The I-864 instructions can be confusing and do not always provide answers to questions you have about the public charge issue.
The Form I-864EZ is a shorter version of the Form I-864 and is used only if three conditions are met: (1) The sponsor is the person who filed or is filing a Form I-130, Petition for Alien Relative, for the sponsored immigrant; (2). The sponsored immigrant is the only person listed on the Form I-130; and (3) The income being used to qualify is based entirely on the sponsor’s salary or pension and is shown on one or more Internal Revenue Service (IRS) Form W-2s provided by employers or former employers.
Consult an immigration attorney to receive full guidance on the financial aspects of becoming a permanent resident or sponsoring an immigrant. While immigration attorneys offer dual representation to both the petitioner (sponsor) and intending immigrant, many will not provide advice to joint sponsors and other third parties whose income is being used, due to a potential conflict of interest.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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