Rule: Immigration: Affidavits of Support On Behalf of Immigrants

Wednesday,
June 21, 2006
Part II
Department of
Homeland Security
U.S. Citizenship and Immigration Services
8 CFR Parts 204, 205, 213a and 299
Department of
Justice
Executive Office for Immigration Review
8 CFR Parts 1205 and 1240
Affidavits of Support on Behalf of

Immigrants; Final Rule
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35732 Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 / Rules and Regulations
DEPARTMENT OF HOMELAND Massachusetts Avenue, NW., Room entity that is the petitioning employer.
SECURITY 3214, Washington, DC 20529; telephone Sections 212(a)(4)(C)–(D) and 213A of
(202) 272–8530 (not a toll free call); or the Act, 8 U.S.C. 1182(a)(4)(C)–(D) and
U.S. Citizenship and Immigration Lisa S. Roney, Office of Policy and 1183a. To avoid a finding of
Services Strategy, U.S. Citizenship and inadmissibility as a public charge, the
Immigration Services, Department of alien must be the beneficiary of an
8 CFR Parts 204, 205, 213a and 299 Homeland Security, 20 Massachusetts affidavit of support filed under section
[DHS 2004–0026; CIS No. 1807–96] Ave, NW., Room 4062, Washington, DC 213A of the Act, 8 U.S.C. 1183a. Section
20529; telephone (202) 272–1470 (not a 213A of the Act specifies the conditions
RIN 1615–AB45 toll free call). that must be met in order for an affidavit
Concerning amendments made by this of support to be sufficient to overcome
DEPARTMENT OF JUSTICE Final Rule to 8 CFR parts 1205 and the public charge inadmissibility
1240: MaryBeth Keller, General ground.
Executive Office for Immigration Counsel, Executive Office for
Review A. The Interim Rule
Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia The former Immigration and
8 CFR Parts 1205 and 1240 22041; telephone (703) 305–0470 (not a Naturalization Service (Service)
[EOIR No. 150F; AG Order No. 2824–2006] toll free call). published an interim rule implementing
SUPPLEMENTARY INFORMATION:
these requirements in the Federal
RIN 1125–AA54 Register on October 20, 1997, at 62 FR
Table of Contents 54346. The interim rule adopted 8 CFR
Affidavits of Support on Behalf of I. Background part 213A, defining the procedures for
Immigrants A. The Interim Rule submitting affidavits of support under
B. Synopsis of the Final Rule section 213A of the Act, defining a
AGENCIES: U.S. Citizenship and II. Description of and Response to Comments
Immigration Services, Department of sponsor’s ongoing obligations under the
A. Employment Sponsored Immigrants affidavit of support, and specifying the
Homeland Security; Executive Office for B. Effect of an intending immigrant’s Work
Immigration Review, Department of History
procedures that Federal, State, or local
Justice. C. Effect of the Child Citizenship Act of agencies or private entities must follow
2000 on the Affidavit of Support to seek reimbursement from the sponsor
ACTION: Final rule.
Requirement for provision of means-tested public
SUMMARY: This final rule adopts, with D. Definition of ‘‘Domicile’’ benefits. In conjunction with the interim
specified changes, an interim rule E. Sponsors Under the Age of 18 rule, the Service also created three new
F. Joint Sponsors public use forms: Form I–864, Affidavit
published by the former Immigration
G. Effect of the Visa Petitioner’s Death of Support Under Section 213A of the
and Naturalization Service on October H. Other Sponsorship Requirements
20, 1997. This final rule clarifies several Act; Form I–864A, Contract Between
I. Orphan Cases Sponsor and Household Member; and
issues raised under the interim rule J. Miscellaneous Comments
regarding who needs an affidavit of K. Children Who Immigrate Under Section
Form I–865, Sponsor’s Notice of Change
support, how sponsors qualify, what 211(a) of the Act of Address. The interim rule was
information and documentation they L. Role of the Immigration Judges effective on December 19, 1997.
must present, and when the income of M. Additional Changes to Department of On March 1, 2003, the Service ceased
other persons may be used to support an Justice Rules to exist and its functions were
intending immigrant’s application for III. Regulatory Analysis transferred from the Department of
A. Regulatory Flexibility Act Justice to the Department of Homeland
permanent residence. These changes are B. Unfunded Mandates Reform Act
intended to make the affidavit of Security (DHS), pursuant to the
C. Administrative Procedure Act Homeland Security Act of 2002, Public
support process clearer and less D. Assessment of Regulatory Impact on the
intimidating and time-consuming for Law 107–296. The Secretary of
Family
sponsors, while continuing to ensure E. Paperwork Reduction Act Homeland Security is the issuing
that sponsors will have sufficient means F. Executive Order 12866 authority for most of the provisions of
available to support new immigrants G. Executive Order 13132 this final rule, since the Homeland
when necessary. The final rule also H. Executive Order 12988 Civil Justice Security Act transferred immigration
makes clear that, when an alien applies Reform services functions to U.S. Citizenship
for adjustment of status in removal and Immigration Services (USCIS) of
I. Background
proceedings, the immigration judge’s DHS. The Attorney General, however,
Section 531(a) of the Illegal continues to have authority relating to
jurisdiction to adjudicate the adjustment Immigration Reform and Immigrant
application includes authority to the Executive Office for Immigration
Responsibility Act of 1996 (IIRIRA), Review. The Attorney General,
adjudicate the sufficiency of the Public Law 104–208, Division C,
affidavit of support. therefore, is the issuing authority for the
amended section 212(a)(4) of the provisions of this final rule that relate
DATES: This final rule is effective July Immigration and Nationality Act (Act) to the jurisdiction of the immigration
21, 2006. to provide that an alien is inadmissible judges.
FOR FURTHER INFORMATION CONTACT: as an alien likely to become a public
Concerning amendments made by this charge if the alien is seeking an B. Synopsis of the Final Rule
Final Rule to 8 CFR parts 204, 205, immigrant visa, admission as an This current rulemaking adopts the
213A and 299: Jonathan Mills, immigrant, or adjustment of status as: interim rule as a final rule, with the
Immigrant Program Management (a) An immediate relative, (b) a family- changes discussed in this
Branch, Office of Regulations and based immigrant, or (c) an employment- Supplementary Information. The
Product Management, U.S. Citizenship based immigrant, if a relative of the changes reflect the response of USCIS
and Immigration Services, Department alien is the petitioning employer or has and the Department of Justice to the
of Homeland Security, 111 a significant ownership interest in the comments received relating to the
Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 / Rules and Regulations 35733
interim rule. USCIS also notes that it requirement for treaty investor visas. can establish, on the basis of the records
has adopted two additional public use See Foreign Affairs Manual, Volume 9, of the Social Security Administration,
forms to comply with the requirements Sec. 41.51, note 3.1 to 22 CFR 41.51. that he or she already has, or can be
of the final rule. USCIS designed Form The final rule retains the five percent credited with, the necessary quarters of
I–864EZ, EZ Affidavit of Support, for threshold adopted in the interim rule. In coverage, requiring the Form I–864
use by a sponsor who relies only on his accordance with the authorities cited in would serve no real purpose—the
or her own employment to meet the the supplemental information to the sponsor’s obligations would terminate
income requirements under section interim rule, at 62 FR 54347, USCIS as soon as they arose. The final rule
213A of the Act and the final rule. An believes that the term ‘‘significant therefore adopts this suggestion.
intending immigrant uses Form I–864W, ownership interest’’ had a well-settled
meaning in Federal statutes and C. Effect of the Child Citizenship Act of
Intending Immigrant’s I–864 Exemption, 2000 on the Affidavit of Support
to establish that a Form I–864 is not regulations when Congress included the
term in sections 212(a)(4)(D) and Requirement
required in his or her case. More
information about these new Forms is 213A(f)(4) of the Act. The commenters’ On October 30, 2000, President
included in the section of this observation that these definitions are in Clinton signed into law the Child
SUPPLEMENTARY INFORMATION relating to ‘‘unrelated’’ statutes is not persuasive, Citizenship Act of 2000, Public Law
the Paperwork Reduction Act. Also, since it is the meaning of the term itself 106–395, 114 Stat. 1631. Section 101 of
pursuant to section 213A(i) of the Act, that is at issue. In the absence of the Public Law 106–395 amended section
the final rule makes clear that USCIS enactment of a different definition of 320 of the Act, effective February 27,
may disclose a sponsor’s social security ‘‘significant ownership interest,’’ there 2001. Under this amendment, the alien
number, as well as the sponsor’s last is no clear basis for adopting a different child of a citizen becomes a citizen
known address, to a benefit granting definition for section 213A of the Act. automatically under section 320 of the
agency seeking to obtain reimbursement Act if, before the child’s 18th birthday,
Citizenship or Resident Alien Status of the child is lawfully admitted for
from the sponsor. the Relative-Employer permanent residence while in the legal
II. Description of and Response to Three commenters asked whether the and physical custody of a citizen parent
Comments affidavit of support requirement will and while residing with the citizen
The comment period ended on apply to employment-based immigrants parent in the United States. It is likely
February 17, 1998. The Service received if the relative with the significant that most alien children of citizens will
117 comments that were submitted ownership interest is not a United States acquire citizenship at the same moment
during the comment period. USCIS and citizen or resident alien. For as their admission for permanent
DOJ have considered these comments in employment-based immigrants, the residence.
formulating the final rules. purpose of the affidavit of support is to Because the requirements under the
The following is a discussion of the ensure that a relative who could file a affidavit of support end when the
comments and USCIS’s responses. family-based visa petition will not use sponsored immigrant becomes a citizen,
employment as a means to avoid the USCIS concludes that imposing the
A. Employment Sponsored Immigrants affidavit of support requirement that affidavit of support requirement in these
Definition of ‘‘Significant Ownership would apply if the relative were to file cases would be needless. Therefore, the
an alien relative visa petition. Relatives final rule provides that no Form I–864
Interest’’
who are not U.S. citizens or resident is required if the alien establishes that
Sections 212(a)(4)(D) and 213A(f)(4) aliens are ineligible to file alien relative he or she will acquire citizenship
of the Act and 8 CFR 213a.2(b)(2) visa petitions. For this reason, 8 CFR automatically under section 320, as
require the submission of Form I–864 in 213a.1 defines ‘‘relative,’’ for purposes amended, upon his or her admission or
the case of an employment-based of the affidavit of support requirement, adjustment of status. Note, however,
immigrant if a relative of the immigrant to include only those family members that this final rule excuses the
either filed the visa petition or has a who can file alien relative visa petitions. immigrant children of citizens from the
‘‘significant ownership interest’’ in the The final rule clarifies that a relative requirement of filing a Form I–864 only.
entity that did so. The interim must be either a U.S. citizen or a In a given case, it may still be that, in
regulation, at 8 CFR 213a.1, defined resident alien in order for the affidavit light of the general factors specified in
‘‘significant ownership interest’’ as an of support requirement to apply to an section 212(a)(4)(B) of the Act—the
ownership interest of five percent or employment-based immigrant. alien’s age, health, family status, assets,
more in a for-profit entity. Nine resources and financial status,
commenters (with 51 signers) believe B. Effect of an Intending Immigrant’s education and skills—an immigrant
that this five percent threshold is too Work History child of a citizen would be inadmissible
low. One commenter, for example, Under section 213A(a)(3)(A) of the under section 212(a)(4)(A) of the Act as
argued that a five percent interest Act, all of a sponsor’s obligations under an alien likely to become a public
cannot be considered ‘‘significant’’ the affidavit of support end once the charge. DHS does not consider it likely
because ‘‘no ability to control or even intending immigrant has worked, or can for this issue to arise in many cases,
influence [the entity] can result from be credited with, 40 qualifying quarters however. Under the amended section
such a low level of ownership.’’ These of coverage as defined under title II of 320, most adopted children will acquire
commenters believe that an affidavit of the Social Security Act, 42 U.S.C. 401 et citizenship upon their admission to the
support should not be required unless seq. One comment (with 21 signatures) United States or soon thereafter. Even a
the relative owns at least 50 percent of suggested that the affidavit of support child with a serious medical condition,
the petitioning entity. They based this requirement should not apply at all if, therefore, would most likely be a citizen
suggestion on the Department of State’s when the intending immigrant seeks an before the child would become
determination in the Foreign Affairs immigrant visa or adjustment of status, dependent on public assistance as a
Manual that a treaty investor must own the intending immigrant can already result of the condition.
at least 50 percent of the entity in order meet this requirement. This comment is The Child Citizenship Act applies to
to meet the ‘‘substantial investment’’ well-taken. If the intending immigrant adopted children and alien orphans, as
well as to birth children. Note, however, Act to exhaust the situations in which F. Joint Sponsors
that amended section 320 of the Act a person sojourning abroad may be said Four commenters argued that the joint
requires the child to be in the legal and to retain a domicile in the United States. sponsorship provision is too restrictive
physical custody of a citizen parent in The final rule revises the definition to to provide a practical alternative. One of
order for the child to acquire citizenship tie ‘‘domicile’’ to the sponsor’s principal these commenters, in particular,
upon admission as a permanent residence. The final rule also clarifies suggested that the sponsor and joint
resident. If the citizen parent, residing that a person residing temporarily sponsor should be able to ‘‘pool’’ their
in the United States, adopts an alien abroad may file an affidavit of support income, that is, that the joint sponsor
orphan abroad, and both parents saw if he or she can show, by a should only be required to make up the
the child before or during the adoption, preponderance of the evidence, that he difference between the sponsor’s
then the legal parent-child relationship or she still has a domicile in the United income and the income threshold.
will already exist for immigration States. To avoid confusion, the final rule
However, sections 213A(f)(2) and (5) of
purposes when the alien orphan is makes this clarification in a new 8 CFR
the Act permit a joint sponsor only in
admitted to the United States as a 213a.2(c)(1)(ii), rather than in the
one specified situation: when the
permanent resident. If all the other definition itself.
The final rule does provide in section sponsor’s income is not sufficient. The
requirements of section 320 of the Act
213a.2(c)(1)(ii) a single exception, under joint sponsor, according to section
are met, the alien orphan will become
which a sponsor who is not domiciled 213A(f)(5) of the Act, must be able to
a citizen at admission. If, however, the
in the United States (i.e., cannot show meet the income threshold. For this
alien orphan is to be adopted in the
his or her residence abroad has been reason, the final rule cannot, and does
United States only after admission, then
only temporary) may submit a Form I– not, adopt the suggestion that, like the
the alien orphan will not become a
citizen until the adoption is finalized. 864. The sponsor may do so only if the household members, the sponsor and
The citizen parent will therefore have to sponsor establishes, by a preponderance joint sponsor should be able to ‘‘pool’’
sign a Form I–864. A Form I–864 will of the evidence, that the sponsor will their income.
have established his or her domicile in One comment suggested that a joint
also be required of the citizen parent
the United States no later than the date sponsor should be allowed if the visa
when there is a completed foreign
adoption, but one or both of the parents of the intending immigrant’s admission petitioner is under 18. Sections
did not see the child before or during or adjustment of status. The intending 213A(f)(2) and (5) of the Act provide the
the adoption, unless the citizen parent immigrant will, however, be only statutory basis for joint sponsors,
can establish that, under the law of the inadmissible as an alien likely to and allow for a joint sponsor only if the
State of the child’s proposed residence, become a public charge if the sponsor sponsor’s income is not sufficient. There
the foreign adoption will be entitled to has not actually become domiciled in is no similar provision for cases
recognition without the need for any the United States by the date of the involving sponsors who are not at least
formal administrative or judicial decision on the intending immigrant’s 18, or who are not domiciled in the
proceeding in that State. application for admission or adjustment United States.
The petitioning citizen parent must of status. Thus, the sponsor must arrive One of the eight commenters on the
still submit a sufficient Form I–864 if in the United States before, or at the domicile issue discussed earlier
the child immigrates after the child’s same time as, the intending immigrant, suggested that the regulation should
18th birthday, and also if the child and the sponsor must intend to establish permit a joint sponsor if the visa
immigrates before the child’s 18th his or her domicile in the United States. petitioner cannot meet the domicile
birthday, but the child is no longer a requirement. But sections 213A(f)(2)
E. Sponsors Under the Age of 18 and (5) of the Act provide the only
‘‘child’’ as defined in section 101(b)(1)
of the Act because the child is married. Four commenters objected to the statutory basis for joint sponsors, and
requirement that the sponsor must be at allow for a joint sponsor only if the
D. Definition of ‘‘Domicile’’ least 18 years old. They noted that this principal sponsor’s income is not
Eight comments questioned the requirement will mean that a citizen or sufficient. If the person who is required
definition of ‘‘domicile.’’ Several resident alien spouse who does not meet to be the sponsor is not domiciled in the
commenters objected that, because of the age requirement cannot file an United States, and, as noted earlier in
the way the interim rule defined affidavit of support on behalf of the the discussion of domicile, does not
‘‘domicile,’’ it would preclude citizens spouse seeking to immigrate. Similarly, intend to establish a domicile in the
and resident aliens who are domiciled a parent who is under 18 years old United States, then there is no one who
abroad from filing affidavits of support. could not do so for his or her alien has standing to sign an affidavit of
It is true that those who are not children. Congress set the age limit in support on behalf of the intending
domiciled in the United States may not section 213A(f)(1)(B) of the Act. USCIS immigrant.
file affidavits of support until they cannot change the age limit in the The final rule also makes clear that an
establish domiciles in the United States. regulations unless Congress amends intending immigrant may not have more
This result is clearly what Congress section 213A of the Act. If the sponsor than one joint sponsor, in addition to
intended in imposing the domicile or joint sponsor was not 18 when he or the principal sponsor. This clarification
requirement. An agreement to submit to she signed a Form I–864, the signature is consistent with the statement of
the jurisdiction of a court in the United will have no legal effect under section managers accompanying IIRIRA with
States, suggested by three comments, 213A of the Act. Rather than requiring respect to section 213A, which clearly
cannot substitute for this clear statutory rejection of the Form I–864, however, indicates that the managers did not
requirement. the final rule provides that, to cure the consider it appropriate to permit a
It appears that the commenters may improper filing, the sponsor or joint second joint sponsor if the joint
have misunderstood the scope of the sponsor must sign it again on or after his sponsor’s income was not sufficient. H.
definition. In particular, in 1997 the or her 18th birthday before there can be Rep. No. 104–828 at 242 (1996). It is not
Service did not intend, and USCIS does a decision on the intending immigrant’s necessary, however, for all the
not now intend, the reference to application for an immigrant visa or derivative beneficiaries of a visa petition
sections 316(b), 317, and 319(b) of the adjustment of status. to have the same joint sponsor as the
principal beneficiary. For example, national, or else an alien lawfully Act, as amended by Public Law 107–
suppose the principal beneficiary has a admitted for permanent residence. The 150.
wife and four children who will substitute sponsor must also be at least
H. Other Sponsorship Requirements
accompany the principal beneficiary to 18 years of age, and must have a
the United States. It may be the case that domicile in the United States. If USCIS Section 213A(f)(1)(D) of the Act
a willing joint sponsor would have allows the approval of the visa petition provides that the sponsor must be the
sufficient income to file an affidavit of to stand, then the sponsored alien’s person ‘‘petitioning for the admission of
support for the husband and wife and spouse, parent, mother-in-law, father-in- the alien under section 204’’ of the Act.
only one of the children. The final rule law, sibling, child (if at least 18 years of The interim rule, in 8 CFR 213a.2(b)(1),
would permit the joint sponsor to accept age), son, daughter, son-in-law, made clear that the sponsor must be the
responsibility only for those three daughter-in-law, sister-in-law, brother- visa petitioner whose petition is the
aliens, and would allow a second joint in-law, grandparent, grandchild, or a actual basis for the intending
sponsor to file an affidavit of support for legal guardian may sign the affidavit of immigrant’s eligibility to apply for the
the other three children. Each joint support. immigrant visa or adjustment of status.
sponsor would then be responsible only The final rule also adopts a special One commenter noted that an alien may
for those aliens named in that joint rule for cases in which the alien be the beneficiary of more than one
sponsor’s own Form I–864. The beneficiary was, before the petitioner’s approved visa petition, filed by several
principal intending immigrant and the death, the spouse of a citizen. Under relatives. This commenter believes that
accompanying spouse and children, as a section 201(b)(2)(A)(i) of the Act, if an any one of these petitioners should be
group, however, may not have more alien was married to a citizen for at least able to be the sponsor. For example, if
than two joint sponsors. 2 years at the time of the citizen’s death, the intending immigrant applies for a
the alien may file a petition on his or visa as an immediate relative, on the
G. Effect of the Visa Petitioner’s Death her own behalf, so long as the alien does basis of his wife’s visa petition, but his
Seven commenters suggested that a so within 2 years of the citizen’s death, mother also filed a third family-based
joint sponsor should be permitted if the and has not remarried. Section preference petition, then his mother,
visa petitioner dies before the visa 212(a)(4)(C)(i)(I) of the Act, in turn, instead of his wife, should be able to be
petition is approved, and the beneficiary relieves that alien of the affidavit of the sponsor.
has obtained ‘‘relief from revocation’’ support requirement, once USCIS
under 8 CFR 205.1(a)(3)(i)(C). There is This comment cannot be adopted. The
approves the new petition. The final
no authority to approve a visa petition reference in section 213A(f)(1)(D) of the
rule provides that it will not be
after the petitioner dies. See Abboud v. Act to section 204 of the Act can most
necessary for the beneficiary to file a
INS, 140 F.3d 843 (9th Cir. 1998); Dodig reasonably be taken to mean that
new petition (Form I–360, Petition for
v. INS, 9 F.3d 1418 (9th Cir. 1993); Amerasian, Widow(er), or Special Congress anticipated that the sponsor
Matter of Varela, 13 I. & N. Dec. 453 Immigrant) as the widow(er) of a citizen. would be the same person whose visa
(BIA 1970). If the petitioner dies before Instead, the final rule provides for petition has made the intending
approval of the visa petition, there is no automatic conversion of the citizen’s immigrant’s application for an
basis for approving the visa petition. spousal Form I–130, Petition for Alien immigrant visa or for adjustment of
The legal situation is different if the Relative, to a widow(er)’s petition upon status currently possible. If the mother
visa petitioner dies after approval of the the citizen’s death if, on that date, the in this example is going to be the
visa petition. Section 205 of the Act widow(er) meets the requirements of sponsor, then the alien will have to wait
authorizes revocation of approval of a section 201(b)(2)(A)(I) of the Act as it until the priority date for her petition is
visa petition for ‘‘good and sufficient relates to widow(er)’s petitions. This reached. The mother may, of course,
cause.’’ The related regulation, 8 CFR automatic conversion will apply choose to be a joint sponsor if the visa
205.1(a)(3)(i)(C), provides that the whether the citizen spouse dies before petitioner/sponsor cannot meet the
petitioner’s death automatically revokes or after approval of the Form I–130. income threshold.
approval of a family-based immigrant Since the alien spouse will then Proof of Sponsor’s Social Security
petition. This same regulation, however, immigrate as the widow(er) of a citizen, Number, Citizenship, and Residence
allows the approval to remain in force it will not be necessary to submit a
if USCIS, in the exercise of discretion, Form I–864 from a substitute sponsor. One commenter suggested that every
‘‘determines that for humanitarian The final rule retains the provision of sponsor should have to prove his or her
reasons revocation would be the interim rule that permits a joint citizenship, residence, and Social
inappropriate.’’ 8 CFR 205.1(a)(3)(i)(C). sponsor if the visa petitioner dies after Security number. It is not necessary to
Reinstatement of approval of the visa the principal beneficiary has incorporate this suggestion into the final
petition does not waive the affidavit of immigrated, but before a family member rule. USCIS already verifies the
support requirements under section entitled to ‘‘follow to join’’ the principal citizenship or resident alien status of
213A of the Act. However, on March 13, beneficiary immigrates. (‘‘Following to those who file alien relative visa
2002, the Family Sponsor Immigration join’’ permits spouses and children of petitions. Moreover, the general
Act, Public Law 107–150, 116 Stat. 74, an alien to obtain the status authority to gather evidence concerning
was enacted. Public Law 107–150 nonimmigrant visa or immigrant visa an alien’s eligibility to enter the United
amended section 213A(f)(5) of the Act to and priority date of the principal alien.) States, granted under section 287(b) of
permit another relative to sign the The final rule, however, conforms the the Act, is a sufficient basis for USCIS
affidavit of support if the petitioner dies provision to the requirements of the to require additional evidence
after the visa petition is approved, Family Sponsor Immigration Act. That concerning these issues. Such evidence
where it is determined that revoking the is to say, the substitute sponsor must be may include verification of a sponsor’s
approval would not be appropriate. This a citizen, national, or permanent Social Security number, especially
final rule incorporates the provisions of resident alien, at least 18 years of age, when there is a reasonable basis to
section 213A(f)(5)(B), as amended by and related to the new intending question the sponsor’s identity or
Public Law 107–150. A substitute immigrant in at least one of the ways eligibility to sign the Form I–864. A
sponsor must be either a citizen or described in section 213A(f)(5)(B) of the joint sponsor, however, will have to
prove his or her eligibility to be a joint (Mich. 1959); California Dept. Mental persons legally claimed as dependents,
sponsor. Hygiene v. Renel, 10 Misc.2d 402, 173 the sponsor may include his or her
N.Y.S. 2d 231 (N.Y. App. Div. 1958). father, mother, adult son, adult
Nonimmigrant Fiancé(e)s
Seven commenters asked for daughter, brother, or sister. The final
Another commenter asked for clarification of the situations when rule removes the interim rule’s
clarification that the nonimmigrant Form I–134 may be used. The discretion requirement that the household member
fiancé(e) of a citizen does not need a concerning use of Form I–134 has long must have resided in the sponsor’s
Form I–864 when the fiancé(e) comes to been quite broad. The sole purpose of 8 household for at least six months in
the United States as a K–1 CFR 213a.5 is to retain that broad order to sign a Form I–864A. The final
nonimmigrant fiancé(e) under section discretion. For this reason, the final rule rule also clarifies, as requested by three
101(a)(15)(K) of the Act to marry the makes no change to 8 CFR 213a.5. commenters, that no person should be
citizen. This is correct. A K–1 counted more than once in determining
nonimmigrant fiancé(e), however, is Definitions of ‘‘Household Size’’ and
the size of the household.
admitted for only 90 days. The lawful ‘‘Household Income’’ The definition of ‘‘household income’’
status of the K–1 nonimmigrant Numerous comments were received is revised to correspond to the revised
fiancé(e), and any accompanying child concerning the definitions of definition of ‘‘household size.’’ In
admitted as a K–2 nonimmigrant, ends ‘‘household size’’ and ‘‘household determining the ‘‘household income’’
unless, within this 90-day period, the income’’ and the use of the Form I– the sponsor may include the income of
K–1 nonimmigrant fiancé(e) marries the 864A. any other persons included in
citizen who filed the K–1 nonimmigrant In general, these commenters believed calculating the ‘‘household size,’’ but
visa petition. After the marriage, the K– that ‘‘household size’’ was defined too these other persons, including the
1 nonimmigrant fiancé(e) and any broadly, since all related people at the sponsor’s spouse or children (who must
accompanying children admitted as K– same residence would be considered in be at least 18 years old), must still sign
2 nonimmigrants must then apply for the household, even if they were, in Form I–864A in order for the sponsor to
adjustment to permanent resident fact, separate economic ‘‘households.’’ use this option. The final rule retains
status. Sections 201(b)(2)(A)(i) and These comments are well-founded. The the Form I–864A requirement to ensure
245(d) of the Act make it clear that, final rule, therefore, provides for that the family member’s promise of
when an alien who has been admitted flexibility in the definition of support is enforceable. As with the
as a K–1 nonimmigrant fiancé(e), and ‘‘household size.’’ sponsor’s spouse and dependents, the
any accompanying child admitted as a In all cases, the sponsor must include income of these other relatives in the
K–2 nonimmigrant, applies for in calculating the ‘‘household size’’ the residence may be ‘‘pooled’’ to determine
adjustment of status, he or she does so sponsor, his wife or her husband, the the household income. In response to
as an immediate relative. Since the K sponsor’s unmarried children under the one comment, the final rule clarifies
nonimmigrant adjusts as an immediate age of 21 (other than a step-child who that a person included in calculating
relative, sections 212(a)(4) and 213A meets the requirements of section ‘‘household income’’ must be at least 18
make the nonimmigrant inadmissible 101(b)(1)(B) of the Act but who is not years old to sign a Form I–864A.
unless the citizen spouse files a Form I– part of the sponsor’s household, is not
864 for both the K–1 nonimmigrant claimed as a dependent by the sponsor Intending Immigrant as Part of the
fiancé(e) and any accompanying for tax purposes, and is not seeking to Sponsor’s Household
children admitted as K–2 immigrate based on the step-parent/ Two commenters argued that the
nonimmigrants. step-child relationship), and any other intending immigrant and his or her
This commenter also believed that person—whether related to the sponsor family should not be considered in
Forms I–864 should be required for or not—claimed as a dependent on the determining the sponsor’s ‘‘household
other nonimmigrants, such as students sponsor’s income tax returns. The size’’ for purposes of the affidavit of
and the family members of students and sponsor must include his or her spouse support. Section 213A(f)(6)(A)(iii) of the
nonimmigrants in work-related and all persons claimed as dependents Act clearly requires the sponsor’s
classifications. Section 213A of the Act, for tax purposes, even if these persons income to meet the income threshold
however, clearly applies only to certain do not actually have the same principal ‘‘for a family unit of a size equal to the
immigrants. There is no basis in section residence as the sponsor. The sponsor number of members of the sponsor’s
213A of the Act for adopting this may exclude any unmarried children household * * * plus the total number
comment. under 21 if these children have reached of * * * aliens sponsored by that
majority under the law of the place of sponsor.’’ Consequently, the sponsor
Continued Use of the Form I–134, domicile and the sponsor does not claim must continue to include the intending
Affidavit of Support them as dependents on the sponsor’s immigrants in calculating the
The interim rule clarified in 8 CFR income tax returns. ‘‘household size,’’ and must also
213a.5 that the regulations relating to If, in fact, the household consists of a include any other immigrants sponsored
the use of Forms I–864, I–864A, and I– more extended family, the sponsor may under any other Form I–864 if the
865 do not apply to other situations elect to include other relatives in sponsor’s obligation is still in effect.
where immigration or consular officers determining the ‘‘household size.’’
have permitted the use of Form I–134. Under this alternative, the sponsor may Sponsor’s Reliance on the Intending
The Form I–134 is the long-used then include in the calculation of Immigrant’s Income
affidavit of support that, as several State household size any relative of the One commenter suggested that the
courts have held, does not impose an sponsor who has the same principal intending immigrant’s own income
obligation that could be enforced against residence as the sponsor. In determining should never be considered in
the sponsor by lawsuit. San Diego the household size, ‘‘relative’’ has the determining the household income, and
County v. Viloria, 276 Cal. App. 2d 350, same meaning as for the affidavit of that section 213A(f)(6)(A)(ii) of the Act
80 Cal. Rptr 869 (Cal. App. 1969); support regulation as a whole—that is, permits consideration of the intending
Michigan ex rel. Attorney General v. in addition to the spouse, unmarried immigrant’s assets, but not his or her
Binder, 356 Mich. 73, 96 N.W. 2d 140 children under 21, and any other income. The commenter also observed
that ‘‘most’’ intending immigrants will Documenting the Sponsor’s Current reasonable adjudicator could find the
be giving up their jobs abroad, and so Income sponsor’s ability to maintain a sufficient
will no longer have that income. Many Eighteen commenters pointed out that income is reasonably open to question.
immigrants, however, acquire Form I–864 does not include a place for Changes in the Poverty Guidelines
permanent residence through the sponsor to indicate his or her
adjustment of status after working Eight commenters suggested that a
current income. This oversight was sponsor should not have to provide a
lawfully in the United States. Some corrected in the September 15, 2003,
intending immigrants work in the new Form I–864 if the Poverty
edition of Form I–864. The final rule Guidelines change while the case is
United States as nonimmigrants, and now makes it clear that it is the
then go abroad and return with awaiting decision. It will not be
sponsor’s income in the year in which necessary to file a new Form I–864 in
immigrant visas. Other intending the intending immigrant applies for an
immigrants may obtain transfers, so that this case. The final rule also clarifies
immigrant visa or adjustment of status that the sufficiency of the affidavit of
they work in the United States for the that is to bear the greatest evidentiary
same employer as abroad, or may have support will be determined in
weight in determining whether the accordance with the Poverty Guidelines
investments or other lawful sources of affidavit of support is sufficient. The tax
income that will continue to be in effect when the intending immigrant
forms for past years serve as an files the application for an immigrant
available. The intending immigrant, indication of the sponsor’s ability to
moreover, is considered in calculating visa or adjustment of status. So that the
maintain that income over time. record will include the correct version
the sponsor’s household size, and it is These 18 comments implicitly
the income of the household that of the Poverty Guidelines, the final rule
suggested another question: For what provides that the intending immigrant is
determines whether the sponsor can year must the sponsor’s income meet
satisfy the income threshold. to file a copy of the current edition of
the requirements of section 213A? This Form I–864P, Poverty Guidelines, with
The final rule, therefore, clarifies that question will arise regularly, since it is his or her application. USCIS updates
the sponsor may rely on the intending often the case that there will be a lapse the Form I–864P each year to reflect the
immigrant’s income if the intending of time between the filing of the Form annual adjustment in the Poverty
immigrant is either the sponsor’s spouse I–864 and the decision on the immigrant Guidelines.
or has the same principal residence as visa or adjustment application. The final There is one exception to this general
the sponsor and can show by a rule clarifies that, as a general principle, rule: If, in the exercise of discretion, the
preponderance of the evidence that the the sufficiency of the Form I–864 will be Department of State officer, immigration
intending immigrant’s income will determined based on the household officer, or immigration judge requests
continue, after acquisition of permanent income for the year in which the additional evidence because more than
residence, from the same source (such intending immigrant filed the immigrant one year has elapsed since the filing of
as lawful employment with the same visa or adjustment application. There is the application, then the sufficiency of
employer or some other lawful source). one exception, however. If more than a the Form I–864 will be determined
The prospect or offer of employment in year has elapsed since the submission of based on the Poverty Guidelines in
the United States that has not yet the Form I–864, the final rule gives the effect when the request for evidence was
actually begun will not be sufficient to Department of State officer, immigration made.
meet this requirement. officer, or immigration judge the
discretion to request more current ‘‘Discretion’’ To Discount a Form I–864
Who Must Sign the Form I–864 Despite Sufficient Current Income
information if the Department of State
On a similar theme, one commenter officer, immigration officer, or The interim rule, at 8 CFR
asked whether the intending immigrant immigration judge concludes that this 213a.2(c)(2)(v), provided that a
can sign the Form I–864 if the intending additional evidence is necessary to the Department of State officer, immigration
immigrant’s own resources will be the proper adjudication of the case. In any officer, or immigration judge may find
chief basis for the sufficiency of the case in which the intending immigrant an affidavit of support to be insufficient,
Form I–864. The commenter’s example is requested to submit additional even if the sponsor’s income meets the
is a 22-year-old student, of meager evidence, the additional evidence must income threshold, if the officer finds
resources, who has filed a Form I–130 relate to the current year, not to the year that it is unlikely that the sponsor will
for her father, who is independently of the filing of the immigrant visa or be able to maintain that income.
wealthy. adjustment application. The sufficiency Twenty-one commenters argued that
Section 213A(f)(6)(A)(ii) of the Act of the Form I–864 will then be this element of the interim rule gives the
provides that the sponsor may rely on adjudicated based on the additional deciding officer too much ‘‘discretion.’’
the intending immigrant’s assets. evidence. One of these comments, moreover,
However, sections 212(a)(4)(C) and DHS does not intend that a one-year maintained that, if the officer can reject
213A(f)(1) of the Act make it clear that delay between the filing and marginally sufficient Forms I–864, the
the daughter, not the father, must sign adjudication of the immigrant visa or officer should also be able to accept
and file the Form I–864, although it may adjustment application will routinely marginally insufficient Forms I–864.
prove that it is the father’s resources, lead to a request for additional The provision in the interim rule was
not the daughter’s, that make meeting evidence. If the sponsor has a stable not ‘‘discretionary.’’ It is not enough
the ‘‘significant assets’’ provision employment and income history, it may that the sponsor has sufficient income.
possible. As noted, she may rely on her in many cases be reasonable to infer that Section 213A(f)(1)(E) of the Act clearly
father’s income, as distinct from his this history has continued, so that specifies that the sponsor must
assets, only if her father has the same additional evidence would not become demonstrate that he or she can maintain
principal residence as she does and can necessary simply through the passage of that income. The final rule does specify,
show by a preponderance of the time. It is necessary to provide authority however, that, if the sponsor satisfies all
evidence that his income will continue to request additional evidence, however, other requirements of section 213A of
from the same source, even after for the sake of those cases in which, on the Act, a sufficient income will
acquisition of permanent residence. the basis of the evidence of record, a ordinarily make the affidavit of support
sufficient, unless, on the basis of the affidavit of support will carry the income, and not just the Forms 1040,
specific facts of a given case, the greatest weight. In a particular case, 1040A or 1040EZ. The final rule makes
deciding officer finds that the sponsor however, there may be specific facts this clarification.
has not demonstrated his or her ability about the intending immigrant’s Section 213A(f)(6)(B) of the Act gives
to maintain that income over time. situation, under the factors specified in discretion to alter the affidavit of
The sponsors employment history section 212(a)(4)(B) of the Act—the support requirements so that a sponsor
could be one specific fact that could alien’s age, health, family status, assets, need only file a copy of the tax return
warrant such a finding. Suppose, for resources and financial status, from the most recent tax year, rather
example, that the sponsor recently education and skills—that warrant a than the returns for the three most
started a new job after a long period of finding that the intending immigrant recent tax years. This final rule adopts
unemployment. If the sponsor has a remains inadmissible on public charge this alternative. That is, once this final
reasonable prospect that the grounds, even if the affidavit of support rule enters into force, a sponsor will
employment will continue, then it may meets the requirements of section 213A only be required to submit one Federal
well be that the affidavit of support will of the Act. tax return, for the most recent tax year.
be sufficient. If, however, the new However, the sponsor may, at his or her
position is, by its terms, only temporary Effect of the Sponsor’s Own Receipt of option, submit the sponsor’s or
or seasonal, it would be reasonable to Means-Tested Public Benefits household member’s Federal income tax
hold that the income is not sufficient to Several commenters objected to the returns for the three most recent years
show that the sponsor can reasonably be requirement that the sponsor must if the sponsor believes these additional
expected to be able to maintain his or disclose whether the sponsor or any tax returns may help to establish the
her household income at the income household members have received sponsor’s ability to maintain his or her
threshold. means-tested public benefits. The household income at the applicable
Another situation may involve one argument is that section 213A of the Act threshold set forth in Form I–864P,
person who has filed visa petitions for does not authorize this requirement. Poverty Guidelines.
several relatives—two brothers and a USCIS does not agree that section 213A
sister, for example at—the same time, so of the Act does not permit USCIS to ask Use of IRS Transcripts Instead of Copies
that each beneficiary’s priority date about past receipt of means-tested of the Required Tax Returns
becomes current at about the same time. public benefits. In most cases, however, Another commenter asked whether
The relatives may then apply for information about this issue will not the sponsor may submit IRS-generated
immigrant visas or for adjustment of add much evidence of probative value. transcripts of the returns. Under current
status at about the same time. Strictly As a matter of policy, therefore, the IRS policy, IRS will provide transcripts,
speaking, the legal support obligation sponsor will not be asked to disclose his free of charge, if the sponsor files IRS
would not be in effect when these or her receipt of means-tested public Form 4506T. There is, by contrast, a fee
siblings (and their accompanying benefits. The Service already removed for filing an IRS Form 4506, rather than
spouses and children) apply for visas, this question from the November 5, the free IRS Form 4506T, if one wants
since none of them have been admitted 2001, edition of the Form I–864. If a to obtain an actual photocopy of the
as permanent residents yet. Thus, the sponsor uses an older edition of the filed return. It is important to note that
second brother and the sister, for Form I–864, the sponsor may leave that the interim rule did not require the
example, would not be included in question unanswered. However, USCIS sponsor to obtain photocopies of the
calculating the ‘‘household size’’ for the notes that the sponsor may not include sponsor’s own returns from the IRS. If,
first brother’s affidavit of support. Yet any means-tested benefits received in as the IRS recommends, the sponsor has
the fact that the same person must sign calculating the household income. The kept photocopies or duplicate originals
an affidavit of support for several people sponsor may, of course, rely on of the sponsor’s returns in the sponsor’s
would surely be relevant in determining retirement benefits, unemployment own files, the sponsor may submit
whether the sponsor can meet the compensation, workman’s copies of his or her own file copies.
support obligation for all of those aliens. compensation, or other benefits that the Section 213A requires the submission of
The Department of State officer, sponsor has received, that must be certified copies, but the interim rule and
immigration officer, or immigration included as taxable income. The the Form I–864 itself make it clear that,
judge may, therefore, properly consider duration of the sponsor’s eligibility for by signing the Form I–864, the sponsor
these other affidavits of support these benefits may be relevant in certifies under penalty of perjury that
(although not yet in effect) in determining the sponsor’s ability to the copies are true copies. The final rule
determining whether the sponsor can maintain his or her income over time. does give the sponsor, substitute
meet the requirements of section 213A sponsor, joint sponsor, household
Income Tax Returns
with respect to the alien(s) whose member, or intending immigrant the
case(s) are under review. It may prove Section 213A(f)(6)(A)(i) of the Act option of submitting either photocopies
that only one or two of the intending requires the sponsor to provide certified or IRS-generated transcripts of the
immigrants (and their accompanying copies of his or her individual income required tax returns. Along with the
family members) will be able to tax returns for the last three years before transcripts or photocopies, the sponsor,
immigrate at that time, unless someone the sponsor signed the Form I–864. One joint sponsor, or household member
is willing to be a joint sponsor for those commenter suggested that the final rule must submit copies of all Forms W–2,
intending immigrants who, if included, should make clear that the sponsor must Forms 1099, and schedules, as specified
would put the household size beyond provide the complete return as actually in the rule.
the size for which the sponsor’s income filed, including all Internal Revenue
is sufficient. Service Forms W–2 (if the sponsor relies No Legal Duty To File a Tax Return
On a related issue, the final rule on income from employment), Forms Two commenters addressed the
clarifies that a sufficient affidavit of 1099 (if the sponsor relies on income situation of a sponsor who had no legal
support will not overcome the public from sources documented on Forms duty to file a tax return for a particular
charge ground of inadmissibility in 1099 in meeting the income threshold), year. The sponsor would bear the
every possible case. In most cases, the or other documentary evidence of burden of showing the basis for his or
her claim that he or she had income that Proof of Income Through Self- however, signing before a notary is not
was not subject to taxation, including Employment necessary.
the source and amount of the income. If Finally, one commenter believed that, Significant Assets
the claim that the sponsor had no duty for self-employed persons, the sponsor’s
to file is based on the sponsor’s income Ten commenters objected to the
income should be taken from line 7 of requirement that the assets of the
being too low to require a return, proof Schedule C to IRS Form 1040. That is
that the income was below the threshold sponsor or intending immigrant must
to say, the self-employed sponsor’s equal at least five times the difference
will be enough to establish that the income should be the gross receipts of
sponsor had no duty to file. If the between the applicable income
the person’s business, minus the cost of threshold and the actual household
sponsor claimed that the sponsor had no goods sold, but without subtracting
duty to file for some reason other than income. One of these ten commenters
legitimate deductions the sponsor has argued that this requirement could
the sponsor’s income level, this burden taken. USCIS cannot adopt this
may require the sponsor to provide the impose a special hardship on large
suggestion. The focus of concern is the families, forcing ‘‘painful choices of
officer with information, including sponsor’s ability to provide the bringing only part of the family.’’ One
citations to or copies of statutes, treaties, necessary support to the intending commenter, on the other hand,
or regulations that support the claim immigrant(s). Money paid for expenses supported this requirement.
that the sponsor had no duty to file. included in part II of Schedule C is not Those who objected to this
One commenter asked, for example, available for this purpose. Moreover, it requirement believed that a lower
about the situation in which the sponsor is the amount of income after deduction figure, such as twice the difference
claimed that a tax treaty affects the of expenses that is carried over from between the applicable income
sponsor’s tax liability under United Schedule C to the Form 1040 itself. threshold and the actual household
States law. The sponsor would have to Consequently, the final rule retains the income, would be sufficient to qualify
include a copy of the relevant treaty original definition of income, but as ‘‘significant assets.’’ The purpose of
provision. The other commenter asked clarifies that total income means the the requirement, however, is to ensure
what sort of evidence a sponsor may entry for total income shown on the that a sponsor whose income is not
submit to show he or she had no duty appropriate line of the relevant Federal sufficient will nevertheless be able to
to file, and asked whether a joint individual income tax return, IRS Form provide the needed support until the
sponsor would always be required. The 1040, 1040A, or 1040EZ, not the sponsorship obligation ends. In most
sponsor would submit whatever preliminary calculation of gross income cases, an alien is not eligible for
evidence the sponsor has to support the on Schedule C. The final rule also tracks naturalization until he or she has been
claim, such as proof that the sponsor’s the language on IRS Forms 1040 and a permanent resident alien for at least 5
income was below the level at which a 1040A by using the term ‘‘total income’’ years. It is likely, therefore, that the
return is required for the year in rather than ‘‘gross income’’ in relation to sponsor’s obligation will last at least
question. The visa petitioner must file those forms, and the term ‘‘adjusted that long. One commenter did point out
an affidavit of support even if the visa gross income’’ in relation to Form that the spouse of a citizen can
petitioner had no duty to file an income 1040EZ. naturalize after 3 years. Thus, the final
tax return for one or more of the past rule modifies the ‘‘significant assets’’
Use of Photocopies of Forms I–864 and
three years. A joint sponsor would be requirement slightly. If the intending
I–864A for Accompanying Family
necessary if the sponsor’s income did immigrant is immigrating as the spouse
Members
not meet the 125 percent income or child of a citizen (but the child has
The interim rule required that, for already reached his or her 18th
threshold in section 213A of the Act.
accompanying family members, the birthday), the ‘‘significant assets’’
The most common situation in which sponsor could file copies of the Forms requirement will be satisfied if the
there is a claim that the sponsor had no I–864 and I–864A filed for the principal assets equal three times, rather than five
duty to file a Federal income tax return intending immigrant, so long as the times, the difference between the
will probably involve sponsors who copies bore original signatures and applicable income threshold and the
reside in Puerto Rico. These sponsors, notarizations. On May 18, 1998, actual household income. As noted,
under 26 U.S.C. 933(1), may exclude however, the Service announced, at 63 many IR–4 immigrants (orphans coming
from their taxable income any income FR 27193, that the sponsor could submit to the United States for adoption) will
from a source in Puerto Rico (other than complete photocopies of these original become citizens soon after admission, as
from U.S. Government employment in Forms I–864 and I–864A for the soon as the adopting parents complete
Puerto Rico). If a sponsor had no income accompanying family members, so long the adoption in the United States. As
from a source outside Puerto Rico, it as the forms for the principal intending long as the parents’ assets equal the
may well be the case that he or she will immigrant bear original signatures and difference between the applicable
have considerable income, none of notarizations. The final rule income threshold and the actual
which is subject to the Federal income incorporates this change. household income, they will be deemed
tax. In this case, the sponsor will have The Service also revised Form I–864 to have met the ‘‘significant assets’’
to present other evidence to substantiate so that the sponsor now signs the Form requirement.
his or her claimed income. In most ‘‘under penalty of perjury under the
cases, the sponsor’s Puerto Rico income laws of the United States,’’ thus making Beginning and End of the Sponsor’s
tax return, if any, would be the most it unnecessary to sign or acknowledge Support Obligation
probative alternative evidence. Those the Form I–864 before an officer The interim rule did not specify
who reside in Guam, the U.S. Virgin authorized to administer oaths or take precisely when the obligations under
Islands, or the Commonwealth of the acknowledgements. The November 5, Form I–864 or Form I–864A actually
Northern Mariana Islands would also 2001, edition of the Form I–864 still commence. No comments were received
need to present evidence in accordance includes the notary’s jurat block, for on this issue. Nevertheless, the final
with the special tax provisions that those who may wish to have the Form rule clarifies that the mere signing of
apply to persons living in those places. I–864 notarized. Under 28 U.S.C. 1746, Form I–864 or Form I–864A does not
impose any obligations on the sponsor, immigrant and the sponsor (or joint Reporting a Change of Address
joint sponsor, or household member. A sponsor) may not, however, alter the One commenter suggested that Form
sponsor may file a fully sufficient Form sponsor’s obligations to DHS and to I–865, Sponsor’s Notice of Change of
I–864, but the intending immigrant may benefit-granting agencies. Address, is virtually worthless, since
be held to be inadmissible on some This final rule adds two additional
the sponsor need not report the
other basis. In another case, the situations that will terminate the
sponsored immigrant’s name, address,
intending immigrants included in a obligations that result from the signing
or other identifying information. Form
Form I–864 or Form I–864A may not all of a Form I–864 or I–864A. First, as
I–865 need not include information
acquire permanent residence on the noted, the interim rule terminated these
about the sponsored immigrant, because
same day. The final rule clarifies that, obligations if the sponsored immigrant
the USCIS database automatically links
for the obligations to arise, the intending ceases to be an alien lawfully admitted
for permanent residence and leaves the a Form I–865 to every Form I–864 that
immigrant must actually acquire
United States. It is not always the case, the sponsor may have filed, based on
permanent resident status on the basis
however, that an alien who abandons the sponsor’s Social Security number.
of the application supported by the
permanent residence does so formally, The commenter also suggested that
Form I–864 or Form I–864A.
such as by filing a USCIS Form I–407 USCIS should send a confirmation that
Additionally, a potential joint sponsor
when departing the United States. In it has received a Form I–865. USCIS will
who signed a Form I–864 that met all
many cases, the issue of abandonment is consider this suggestion as USCIS
the requirements of the affidavit of
determined only in a later removal expands its automated capabilities.
support regulation would be bound by
proceeding. The final rule makes clear Until this expansion occurs, a sponsor
the support obligations only if the
immigration judge, immigration officer, that a formal adjudication in a removal or joint sponsor may protect his or her
or consular officer found that the proceeding that an alien has abandoned ability to verify that he or she has
principal sponsor did not meet the permanent resident status will also complied with the requirement to file
income threshold, so that the joint terminate any remaining obligations Form I–865 by submitting the properly
sponsor’s Form I–864 was actually under any Form I–864 or I–864A completed Form I–865 by mail (using
necessary to the grant of permanent submitted when the person became a the U.S. Postal Service’s Express Mail,
residence to the intending immigrant. permanent resident. priority mail, or certified mail service)
In response to nine commenters, the Second, some aliens who have or by shipping it through a commercial
final rule clarifies that a household already been admitted as permanent delivery service, and keeping the proof
member’s obligations under Form I– residents but have become subject to of mailing or shipment as well as the
864A terminate under the same removal apply for a new grant of return receipt or other confirmation of
circumstances as the sponsor’s adjustment of status as a means of relief delivery for his or her files.
obligations under Form I–864 terminate. from removal. If an alien in this Accordingly, the final rule provides
One commenter asked whether a situation seeks this new adjustment as that USCIS will accept the United States
household member’s obligation under an immediate relative or as a family- Postal Service certificate of mailing and
Form I–864A terminates when he or she based immigrant (or as an employment- a return receipt or delivery confirmation
leaves the household. It does not. One based immigrant who will work for a as proof that the sponsor or joint
of the commenters suggested that relative or a relative’s firm), the alien sponsor filed the Form I–865 with the
divorce should terminate a support may need to submit a new Form I–864 office whose address appears on the
obligation. Another commenter or I–864A with the new adjustment certificate of mailing and return receipt.
suggested that divorce should be application. The grant of adjustment If the sponsor uses a commercial
irrelevant to the support obligation. will terminate the support obligations delivery service, USCIS will accept the
Finally, one commenter maintained that resulting from any earlier Forms I–864 delivery service’s shipping label and
the support obligation should terminate or I–864A, and those obligations will proof of delivery of the properly
five years after the sponsored then rest on whomever signed the completed Form I–865 to the
immigrants become resident aliens, Forms I–864 or I–864A in support of the appropriate USCIS office.
‘‘even if they do not become citizens or new adjustment application. I. Orphan Cases
work.’’ Thirteen commenters believed that
Section 213A of the Act specifies the USCIS should notify sponsors when the Sixty-two commenters objected to the
two circumstances that end the support sponsorship obligations have requirement that U.S. citizens who
obligation: The sponsored immigrant’s terminated. Adopting this suggestion is adopt alien orphan children, as defined
(1) naturalization or (2) having acquired not feasible. Since the sponsor is a in section 101(b)(1)(F) of the Act, must
40 quarters of coverage under the Social relative, it is likely that the sponsor will file affidavits of support on behalf of
Security Act. The interim rule added know, or can inquire of the sponsored these children. Fifty of the 62 comments
two more: (1) The death of the sponsor immigrant, whether any fact that on this issue were substantially
or sponsored immigrant or (2) the terminates the obligation has occurred. identical letters. The other 12, while not
sponsored immigrant’s abandonment of The only bases for termination of which identical, raised issues included in the
status and permanent departure from USCIS is likely to be aware are the 50 identical letters.
the United States. These two additional sponsored immigrant’s naturalization or It is likely that many, and perhaps
grounds for termination exist as a matter the sponsored immigrant’s formal most, alien orphans will be exempt from
of logical necessity. Section 213A of the abandonment of permanent residence or the affidavit of support requirement
Act does not provide any basis to say formal removal from the United States. under the provision of this final rule
that divorce does, or does not, affect a The termination of the obligation would that relieves an alien of the need to have
support obligation under an affidavit of be an affirmative defense to any an affidavit of support if the alien
support. If the sponsored immigrant is deeming of the sponsor’s income to the already has, or can be credited with, 40
an adult, he or she probably can, in a sponsored immigrant, request for quarters of coverage under the Social
divorce settlement, surrender his or her reimbursement, or notice of intent to Security Act. An alien child is entitled
right to sue the sponsor to enforce an fine for failure to file Form I–865 to to be credited with all the quarters of
affidavit of support. The sponsored report a change of address. coverage earned by each of his or her
parents before the child’s 18th birthday. children is duplicative, since the coverage under the Social Security Act.
To qualify as an alien orphan, the alien adopting parents must already provide They will also know the requirements
must not have reached his or her 16th information concerning their financial they must meet to satisfy section 213A
birthday before the adopting parent(s) status when they file the orphan visa of the Act. Their knowledge of the facts
filed the visa petition. Thus, the orphan petition. of their situation and of the legal
can be credited with each of his or her Response: The Form I–864 does not requirements will enable them to make
parents’ quarters of coverage. The simply duplicate the visa petition a reasonable prediction about their
parents, in turn, need not have worked process. It has long been settled that ability to satisfy the requirements of the
full-time in order to obtain quarters of whether the intended beneficiary is law.
coverage. In 1998, for example, a person actually admissible to the United States Comment: Parents should not be
earned four quarters of coverage if he or is not at issue in the visa petition required to file an affidavit of support
she made at least $2,800.00 in covered process. See Matter of O, 8 I. & N. Dec. on behalf of their children because they
earnings during that year (62 FR 58762). 295 (BIA 1959). The only issues in the are already responsible for the support
It is likely that many, if not most, visa petition proceeding are whether the of their children and therefore the Form
citizens adopting orphans will already alien child qualifies as an orphan and I–864 just duplicates the already-
have sufficient quarters of coverage to whether the petitioner qualifies as a existing support obligation.
make the filing of an affidavit of support prospective adoptive parent. Whether Response: The affidavit of support
unnecessary. If the parents’ Social the orphan is actually admissible can be requirement goes beyond the general
Security Administration records show decided only when that issue is obligation to support one’s children, by
that, between them, they already have adjudicated in connection with an providing, in accordance with the clear
40 quarters of coverage, then they will application for an immigrant visa, for statutory mandate, that a benefit-
not need to file a Form I–864 for the admission as an immigrant, or for granting agency may deem the sponsor’s
alien orphan. adjustment of status. Section income to be the sponsored immigrant’s
As already noted in this 212(a)(4)(C) of the Act specifically income, and that the sponsor must
Supplementary Information, moreover, requires an affidavit of support for all reimburse agencies for the costs of any
this final rule relieves the child of a aliens who immigrate as the immediate means-tested public benefits that may
citizen of the affidavit of support relatives of U.S. citizens. Like all be accorded to the sponsored
requirement, if the child will, upon unmarried minor children of citizens, immigrant.
admission, acquire citizenship under orphans immigrate as immediate Comment: Requiring production of
section 320 of the Act. No affidavit of relatives. Thus, section 213A of the Act tax returns and other financial
support will be necessary, therefore, if clearly requires affidavits of support in information is overly intrusive,
the adoption of an alien orphan is these cases. Moreover, the Form I–864 especially since the regulation permits
already final when the alien orphan also provides the basis for deeming the USCIS to make this information
seeks admission or adjustment of status sponsor’s income to the sponsored available to agencies that may provide
and, since both parents saw the child immigrant, for purposes of determining means-tested public benefits.
before or during the adoption the sponsored immigrant’s eligibility for Response: Section 213A(f)(6) of the
proceeding, the alien orphan will means-tested public benefits, and makes Act specifically requires the sponsor to
become a citizen under section 320 of the sponsor responsible for reimbursing produce his or her tax returns. Section
the Act, as amended, upon his or her agencies for the costs of means-tested 213A(a)(3)(C) of the Act requires USCIS
admission or adjustment of status. public benefits. to make the sponsor’s name, address,
The long-term impact of the affidavit Comment: Requiring an affidavit of and Social Security number available to
of support requirement is also likely to support at the immigrant visa stage public assistance agencies through the
be small in orphan cases for another introduces uncertainty, since the system for alien verification of
reason. Section 213A(a)(2) of the Act adopting parents will not be able to eligibility. USCIS will provide these
terminates the sponsor’s obligations know whether the children are documents to other agencies only in
under the affidavit of support when the admissible. The regulation should relation to a deeming action or an action
sponsored immigrant naturalizes. provide for ‘‘pre-approval’’ of the Form to enforce the sponsor’s support
Assuming the child meets all other I–864, for example, when the parents obligation. USCIS will not make the
requirements of section 320 of the Act, file Form I–600, Petition to Classify documents, or the information in them,
as amended, that provision will make Orphan as an Immediate Relative or I– routinely available to other agencies.
the alien orphan who is not adopted 600A, Petition for Advance Processing Comment: Requiring the adopting
abroad a citizen as soon as the citizen of Orphan Petition. parents to provide notice of any change
parent finalizes the alien orphan’s Response: This uncertainty exists in of address violates their rights as
adoption in the United States. Unlike all immigrant visa cases, since approval citizens.
the sponsors of adults, therefore, the of a visa petition never guarantees that Response: Section 213A(d) of the Act
citizen sponsors of immigrant children the intended beneficiary will be found clearly requires the sponsor to provide
have considerable control over how long to be admissible when he or she applies notice of a change of address, so long as
the affidavit of support obligations will for an immigrant visa, for admission, or the affidavit of support obligation
continue. for adjustment of status. USCIS cannot remains in force. This requirement will
For the sake of those adopting parents ‘‘pre-approve’’ the Form I–864, since not apply to those who, because they
who intend to adopt an alien orphan only the officer who has jurisdiction have already accrued 40 qualifying
after bringing the child to the United over the application for an immigrant quarters of coverage, need not submit an
States, but who cannot meet the quarters visa, for admission as an immigrant, or affidavit of support. Also, the
of coverage exception, USCIS will for adjustment of status has authority to requirement to notify USCIS of a change
address the orphan-related comments. determine whether an alien is of address ends when the child is
The comments and the responses are set admissible. The parents will, however, naturalized.
out as follows. know their own financial situation, Comment: Either of the adopting
Comment: Requiring affidavits of including whether they have, between parents, and not just the one who signed
support on behalf of alien orphan them, at least 40 qualifying quarters of the visa petition, should be able to be
the orphan’s sponsor. It may be that the as amended, just as a prospective sponsor’s income to a sponsored
parent who signed the petition is not the adoptive parent must meet these immigrant and to seek reimbursement
parent who has the income sufficient to requirements if the adopted child is from a sponsor. The Federal agency’s
meet the income requirements. going to immigrate based on the publication in the Federal Register of
Response: The sponsor must be the prospective adoptive parent’s visa the agency’s determination that a
person who is actually the visa petition, but will not acquire citizenship program is a means-tested public benefit
petitioner. As long as one parent who is at admission under section 320 of the is sufficient to give all persons notice of
actually the visa petitioner signs the Act, as amended. The same rule applies the determination. 44 U.S.C. 1507.
Form I–864 and the other signs a Form to a child born in or out of wedlock, to Several states have their own
I–864A, both spouses’ incomes may be a stepchild, and to an adopted child that corresponding systems for publishing
considered in determining the does not qualify as an orphan. In each relevant regulatory and administrative
household income. case, the citizen parent must file Form determinations. So long as a Federal
Comment: Requiring the adopting I–864, unless the child has, or can be agency gives notice in the Federal
parent to complete part 3 of Form I–864 credited with, 40 qualifying quarters of Register, or a State agency gives notice
is not consistent with the rules coverage under the Social Security Act, in whatever manner is provided for
governing the use of Form I–600A, the or unless the child will, at admission, under State law, therefore, any sponsor
application for advance processing of an acquire citizenship under section 320 of can by reasonable effort learn which
orphan petition. When a prospective the Act, as amended. programs are ‘‘means-tested public
adoptive parent files Form I–600A, it is Comment: Adopting parents should benefit’’ programs.
not necessary to identify the prospective not have to disclose their past receipt of A related comment is that a sponsor
immigrant. means-tested public benefits. should be responsible only for those
Response: A prospective adoptive Response: As already noted, a sponsor programs that have been designated as
parent uses Form I–600A if he or she will no longer be required to provide ‘‘means-tested public benefit’’ programs
wants to begin the processing before he this information. as of the date the sponsor signs the
or she has identified the particular child Form I–864. Again, because ‘‘means-
to be adopted. The parent must also file Definition of ‘‘Means-Tested Benefits’’
tested public benefit’’ was defined in
Form I–600, the petition to classify an Six commenters addressed the the interim rule, a sponsor cannot
orphan as an immediate relative, once definition of ‘‘means-tested public reasonably claim not to know which
the child has been identified. Since the benefits.’’ The interim rule specified programs are enforceable against him or
parent files Form I–864 when the child that, in order to qualify a program as a her. However, USCIS agrees that as the
actually applies for an immigrant visa, means-tested public benefit program, for interim rule encouraged governments to
the child’s identity will be known, purposes of the deeming and report which specific programs were
enabling the sponsor to include this reimbursement requirements, the means-tested, some notice by
information in part 3 of Form I–864. agency that administers the program publication of benefit programs is
Comment: Requiring proof of should publicize the agency’s appropriate. This final rule provides
employment or self-employment is determination that the program is a that any government providing a means-
unfair to adopting parents who may means-tested public benefit program. tested public benefit must publish that
have taken time off from work in order One commenter argued that the it is a means-tested public benefit prior
to prepare for adopting the child. definition of means-tested public benefit to the date the benefit was first provided
Response: Temporary absence from is too narrow. The commenter suggested to the immigrant, for that government to
the work force will not require rejection that the regulation should incorporate be eligible to be reimbursed by the
of the affidavit of support, so long as the the definition included in an earlier, sponsor who sponsored that immigrant.
sponsor can show that either the unenacted, version of what became
household income or the sponsor’s section 213A of the Act. As the Enforcement of the Affidavit of Support
assets meet the requirements of the commenter pointed out, however, this Numerous commenters suggested that
regulation. As with all sponsors, there is definition was deleted from the bill the regulation should more precisely
no requirement that the sponsor be under the so-called ‘‘Byrd rule,’’ 2 define the scope of the sponsor’s
employed in order to qualify as a U.S.C. 644. This commenter argued that liability. For example, must the sponsor
sponsor. What section 213A of the Act the striking of the definition should not provide money to the sponsored
requires is that the sponsor’s income, be considered an expression of the immigrant, or may the support be
whether from employment, investments, actual congressional intent in enacting provided in kind? Does the sponsored
or some other lawful source, must meet the final bill, but only as a preliminary immigrant have a duty to support
the income threshold established by parliamentary move. The fact remains himself or herself, which the sponsor
section 213A of the Act, or else that the that Congress did not enact the can raise as an affirmative defense to a
sponsor can meet the alternative definition that this commenter prefers. suit by the sponsored immigrant? Is the
‘‘significant assets’’ provision. Other commenters believed that the sponsor’s liability to a benefit granting
Comment: Requiring affidavits of rule or the Form I–864 should specify agency limited to the difference between
support for alien orphans discriminates exactly which programs qualify as the sponsored immigrant’s income and
against these children and their parents, means-tested public benefits. This the 125 percent income threshold? Or is
since parents of biological children do alternative would require a revision of the scope of liability, at least
not have to comply with the the regulation and of the Form I–864 potentially, unlimited? If the sponsor
requirements. each time a new means-tested public was supporting the sponsored
Response: A biological parent must benefit was created or an existing one immigrant at the proper level, or the
meet the requirements of section 213A abolished. The final rule strengthens the sponsored immigrant was otherwise
of the Act if the biological child is an requirement of the interim rule at 8 CFR ineligible for assistance, but the agency
alien who will immigrate on the basis of 213a.4(b) that a benefit agency make mistakenly provided assistance, is the
the biological parent’s visa petition and public its determination that a program sponsor liable? Like the interim rule,
will not acquire citizenship at qualifies as a means-tested public this final rule does not address these
admission under section 320 of the Act, benefit if the agency wants to deem a issues. It is for the proper court to
adjudicate any suit that may be brought This commenter also asked about how issues, and so the response to these
to enforce an affidavit of support. the deeming requirement and the comments as they relate to those issues
One commenter asked how the reimbursement requirement relate to have been included in the discussion of
liability is to be apportioned among the each other. This question relates, in those issues. Three of the negative
sponsor, a joint sponsor, and any signers part, to the eligibility requirements for comments, however, warrant a separate
of Form I–864A. Under section 213A of a specific benefit program. The basic response.
the Act, the sponsor and joint sponsor assumption is that, if the sponsor’s First, 14 of the negative comments
are jointly and severally liable. Under income is sufficiently high, then expressed concern that the interim rule
the regulation, a person who signs a deeming the sponsor’s income to the would undercut the principle of family
Form I–864A also agrees to be held sponsored immigrant will make the unification by making it more difficult
jointly and severally liable with the sponsored immigrant ineligible for the for citizens and resident aliens to bring
sponsor. The general principles that program. No benefits would then be their family members to the United
govern joint and several liability will paid, and no reimbursement obligation States. This result may follow from the
apply in these cases. This means that would arise. Similarly, the purpose of strengthening of the public charge
the sponsor and the joint sponsor are the ‘‘indigence exception’’ in section inadmissibility ground. The general
equally responsible under the law for 421(e) of Public Law 104–193 that this principle of family unification,
the sponsored immigrant’s support. If commenter addresses is to prevent the however, always operates in light of the
the sponsored immigrant receives a sponsored immigrant from falling into specific requirements of the
means-tested benefit, the agency may total distress if the sponsor defaults on immigration laws. Family unification
seek reimbursement, and if necessary, his or her obligation. The agency may cannot provide a basis for admitting an
may sue only the sponsor, only the joint then provide assistance, assuming the alien who is unable to overcome a
sponsor, or both the sponsor and the sponsored immigrant is otherwise ground of inadmissibility for which the
joint sponsor. eligible, and collect the cost of the law does not provide a waiver.
Another commenter believed it benefits from the sponsor. Another commenter argued that the
contrary to the intent of Congress to This commenter also objected to the new affidavit of support requirement
permit the sponsored immigrant to sue reference in 8 CFR 213a.2 to another was not intended to impose financial
to enforce the support obligation. section of title 8 for the definition of obligations on U.S. citizens and
Section 213A(a)(1)(B) of the Act ‘‘personal service.’’ The complete text of permanent resident sponsors. But
the Code of Federal Regulations is
expressly says the sponsored immigrant section 213A of the Act clearly does
readily available to the public from the
must be able to seek to enforce the impose financial obligations on
Government Printing Office, in public
affidavit of support. Congress clearly sponsors. Section 213A(b)(2) of the Act
libraries, computer-assisted research
intended to permit the sponsored permits assistance agencies to sue the
services, and on the USCIS Internet Web
immigrant to sue to enforce the support sponsor for reimbursement of means-
site at http://www.uscis.gov. To define a
obligation, if necessary. tested public benefits. Section
term that has already been defined is
One commenter criticized the rule 213A(a)(1)(B) of the Act permits the
not necessary. In response to a different
because section 213A of the Act requires sponsored immigrant to sue as well.
comment, however, the final rule does
the sponsor to provide the sponsored clarify that personal service of a request Another commenter argued that the
immigrant with enough support to keep for reimbursement under section regulation should adopt a different
the sponsored immigrant’s income at 213A(b) of the Act and 8 CFR 213.4(a) interpretation of the support
‘‘no less than’’ 125 percent of the need not be made by a Federal requirements because people from
Poverty Guidelines, but the rule speaks Government officer or employee. different cultures often support family
of ‘‘at or above’’ 125 percent. The This commenter believed that USCIS members on far less money than United
regulation does not use the expression should be the sponsor’s agent for States citizens are generally accustomed
‘‘at or above.’’ In any event, USCIS is at purposes of service on the sponsor of a to. Section 213A of the Act, however,
a loss to understand the difference. To request for reimbursement or of a clearly specifies that the household
avoid liability, the sponsor must summons and complaint. Section 213A income must meet a specified threshold.
maintain the sponsored immigrant at of the Act provides no basis for the There is no administrative authority to
125 percent. If the sponsor chooses to adoption of this suggestion. USCIS will disregard the income requirements that
do more, the sponsor may do so. But provide the sponsor’s last known Congress has enacted.
neither section 213A of the Act nor the address to an agency entitled to that Two commenters argued that it is
rule requires a sponsor to do so. information. It then falls to the agency ‘‘unfair’’ that the new affidavit of
One comment asked whether a State to accomplish service of process. support requirement applies to aliens
agency must comply with the This commenter also argued that the who immigrate on the basis of visa
requirement to request reimbursement, agency should be able to include petitions filed and approved before the
if the agency has no intention to sue. anticipated future benefits in the request new requirement entered into force. One
Section 213A(b) of the Act makes the for reimbursement. There is no duty to of the commenters suggested that the
request for reimbursement a prerequisite reimburse until the agency actually commenter’s son would have married
to suit, but does not require the agency provides some benefit. If additional someone else, if he had known he
to sue. For this reason, section 213A(b) benefits are paid, nothing in section would have to sign an enforceable Form
of the Act would not require any agency 213A of the Act or regulation precludes I–864. It is beyond question that
to make a request for reimbursement, if a subsequent request for reimbursement. Congress may enact new immigration
that agency has no intention to sue. This provisions and make them apply to
observation, of course, pertains only to J. Miscellaneous Comments cases that were already pending. Matter
section 213A of the Act, and has no In addition, the Service received of Alarcon, 20 I. & N. Dec. 557, 562 (BIA
bearing on whether the agency may seven broad general comments in favor 1992). Section 531(b) of IIRIRA clearly
have a legal obligation, apart from of the interim rule, and 19 broad general makes the new affidavit of support
section 213A of the Act, to seek comments against the interim rule. requirement apply to aliens who apply
reimbursement or to bring suit. These comments also addressed specific for admission (or, by extension,
adjustment of status) on or after the day U.S. 759 (1988), a concealment or of status filed by aliens in removal
the requirement entered into force. misrepresentation of fact is material if proceedings, and in many of these cases,
The Supplementary Information that disclosure of the truth would have had section 212(a)(4)(C) or (D) of the Act
accompanied the interim rule indicated a natural tendency to influence an requires the applicant to submit an
that the duties imposed on the sponsor official decision. The critical question is affidavit of support that complies with
arise from the sponsor’s participation in whether the sponsor has, and can the requirements of secton 213A of the
a voluntary Federal program. One maintain, a household income that is at Act in order to establish that the
commenter objected to the least 125 percent of the Poverty applicant is not likely to become a
characterization of the affidavit of Guidelines for a household of the same public charge. This rule amends 8 CFR
support requirement as ‘‘voluntary,’’ size. Certainly, misrepresentations or part 1240 and expressly authorizes an
since completing Form I–864 is the only concealments about household size, immigration judge to review the
way to satisfy the requirements of income, or employment history would affidavit of support in order properly to
section 213A of the Act. The only always be material. Whether other decide the adjustment application,
voluntary aspect, according to this concealments or misrepresentations when this issue arises in removal
comment, ‘‘is to sponsor an immigrant would be material would depend on the proceedings. The provisions of 8 CFR
or not sponsor an immigrant.’’ But that facts of particular cases. part 213a also now refer to the
is precisely what makes it voluntary. immigration judge when this reference
The sponsor is under no legal obligation K. Children Who Immigrate Under
is appropriate. The Attorney General,
to file a visa petition, nor is the sponsor Section 211(a) of the Act
rather than the Secretary of Homeland
obligated to sign Form I–864. But if the This final rule also adopts one Security, is promulgating the
sponsor chooses to facilitate the additional revision that is not based on amendments to 8 CFR part 1240 since
immigration of alien relatives, the any comments. This revision concerns these amendments relate to the
sponsor must comply with the legal children admitted under section 211(a) jurisdiction of immigration judges.
requirements for doing so. of the Act. This provision waives the
This commenter also objected to the immigrant visa requirement for certain M. Additional Changes to Department of
designation of consular officers as children who accompany their Justice Rules
immigration officers, for purposes of the immigrant parent(s) to the United As noted previously, the Secretary of
interim rule, and to the fact that States, but who are born after issuance Homeland Security has included in this
consular officers should play any role at of the immigrant visa to the parent(s). final rule an amendment to 8 CFR 205.1
all in the process. The Form I–864, These children are not counted against that implements the Family Sponsor
according to this comment, should be the numerical limits on immigration, Immigration Act, Public Law 107–150.
pre-approved by USCIS. Consular nor is any separate visa petition filed for The Department of Justice regulation at
officers have for decades had authority them. Thus, section 204 of the Act does 8 CFR 1205.1 includes substantially the
under the Act and its predecessors to not form the basis of their admission, same provision as 8 CFR 205.1. Both 8
adjudicate applications for immigrant and they are not properly classified as CFR 205.1(a)(3)(i)(C) and 8 CFR
visas. In doing so, the consular officer ‘‘immediate relatives,’’ ‘‘family-based 1205.1(a)(3)(i)(C) refer to the ‘‘Attorney
must necessarily determine whether the immigrants’’ or ‘‘employment-based General’’ as having discretion to
applicant is inadmissible as likely to immigrants.’’ Since they do not belong reinstate approval of a family-based
become a public charge. Also, the to any of the classes specified in immigrant visa petition, in a case in
commenter appeared to misunderstand sections 212(a)(4)(C) or (D) and 213A of which the approval is revoked by the
the reason for designating consular the Act, the final rule makes clear that petitioner’s death. Under section 451 of
officers as immigration officers for the there is no need in these cases for an the Homeland Security Act, this
limited purpose of this rule. Under affidavit of support that meets the discretion now rests with USCIS since,
section 531(b) of IIRIRA, no affidavit of requirements of section 213A of the Act. before enactment of the Homeland
support is required if the alien had his It will still be necessary for the child’s Security Act, the Board of Immigration
or her interview with ‘‘an immigration parent or parents to establish that the Appeals did not have jurisdiction to
officer’’ before the affidavit of support child is not inadmissible on public adjudicate an appeal from a district or
requirement entered into force. Without charge grounds. Section 212(a)(4)(B) of service center director’s decision not to
the designation to which this the Act, and the case law that section reinstate the approval. Matter of Zaidan,
commenter objects, the new 212(a)(4)(B) of the Act is drawn from, 19 I. & N. Dec. 297 (BIA 1985). Section
requirement would have applied to all rather than section 213A of the Act, will 5304(c)(1) of the Intelligence Reform
aliens who had obtained visas before govern this determination. and Terrorism Prevention Act of 2004,
December 19, 1997, but who did not Public Law 108–458, amends section
L. Role of the Immigration Judges 205 of the Act to make clear that the
actually immigrate until after that date.
USCIS considered it more prudent to This jointly published final rule Secretary of Homeland Security, not the
‘‘grandfather’’ this finite class of aliens, includes new provisions, in 8 CFR part Attorney General, now has authority to
rather than impose on USCIS, the 1240, relating to the authority of revoke approval of an immigrant visa
consuls, and the aliens the burden of immigration judges, an issue that the petition. To avoid conflict between 8
having to reconsider the validity of the interim rule did not address and about CFR 205.1 and 8 CFR 1205.1, this final
already-issued visas in light of the new which the Service received no rule includes an amendment to 8 CFR
requirements. comments. The interim rule did not 1205.1. As with the amendments to 8
Finally, a commenter asked for include immigration judges as officers CFR part 1240, the Attorney General is
clarification of what constitutes a with authority to adjudicate the promulgating this conforming
‘‘material misrepresentation’’ that sufficiency of a Form I–864. The amendment.
would render the affidavit of support Attorney General has concluded, The Secretary of Homeland Security
insufficient to overcome the public however, that it is appropriate for hereby amends the regulations of the
charge inadmissibility ground. immigration judges to have this Department of Homeland Security to
According to the Supreme Court’s authority. Immigration judges regularly clarify the affidavit of support process
decision in Kungys v. United States, 485 adjudicate applications for adjustment under section 213A of the Immigration
and Nationality Act. The Secretary is private sector mandate, as defined by 2 immigration judge to adjudicate issues
exercising his authority under sections U.S.C. 658(7)(A)(ii). The rule relating to affidavits of support that
103 and 213A of the Act (8 U.S.C. 1103, implements statutory requirements arise in cases that are already within the
1183a). placed on Federal, state, and local immigration judge’s jurisdiction.
The Attorney General is amending government agencies related to seeking
D. Assessment of Regulatory Impact on
part 1240 of the regulations of the reimbursement of benefits from a
the Family
Department of Justice to clarify the sponsor under an affidavit of support.
authority and procedures before Agencies must also provide certain The immigration law facilitates
immigration judges to adjudicate an reports to USCIS. Under 2 U.S.C. 1531, reunification of families by according
affidavit of support under section 213A however, no Federal Intergovernmental preferences to aliens who are close
of the Immigration and Nationality Act. Mandate Assessment is required relatives of citizens and resident aliens.
The Attorney General also is amending because this rule ‘‘incorporate[s] The affidavit of support requirement,
part 1205 of the regulations of the requirements specifically set forth in imposed by the Act itself, may make
Department of Justice to conform the law.’’ some family members ineligible to
text of 8 CFR 1205.1(a)(3)(i)(C) to the immigrate because their sponsoring
C. Administrative Procedure Act relative cannot satisfy the income
text of 8 CFR 205.1(a)(3)(i)(C) as
amended by the Secretary of Homeland Under 5 U.S.C. 553(d), a substantive requirements. This final rule should,
Security. The Attorney General is rule generally may not enter into force however, make it somewhat easier to
exercising his authority under section until 30 days after publication in the comply with the affidavit of support
103(g) of the Act, and his authority Federal Register. A longer delay applies requirement, thus increasing the
under 28 U.S.C. 503, 509–510. to a ‘‘major rule,’’ as defined in the likelihood that aliens subject to the
Congressional Review Act, 5 U.S.C. 804, requirement will be able to immigrate.
III. Regulatory Analyses as amended by SBRFA. This final rule, For this reason, DHS has determined, as
A. Regulatory Flexibility Act however, is not a ‘‘major rule,’’ and so provided by section 654 of the 1999
will enter into force on July 21, 2006. In Treasury and General Government
The Regulatory Flexibility Act (RFA) accordance with the general rule that Appropriations Act, Public Law 105–
(5 U.S.C. 605(b)), as amended by the governs immigration cases, Matter of 277, Division A, section 101(h), 112
Small Business Regulatory Enforcement Alarcon, supra, this final rule will apply Stat. 2681, 2681–528, that the
and Fairness Act of 1996 (SBRFA), to any case decided on or after that date, provisions of this final rule that amend
requires an agency to prepare and make even if the alien filed his or her 8 CFR parts 204, 205, 213a, and 299 will
available to the public a regulatory application for an immigrant visa, for not have an adverse impact on the
flexibility analysis that describes the admission as an immigrant, or for strength or stability of the family. For
effect of the rule on small entities (i.e., adjustment of status, after December 19, the same reasons, the Attorney General
small businesses, small organizations, 1997, but before July 21, 2006. The makes the same finding with respect to
and small governmental jurisdictions). interim rule will continue to apply to the amendments that this rule makes to
DHS has reviewed this regulation in any case adjudicated before July 21, 8 CFR part 1240.
accordance with the Act and has 2006.
determined, with respect to the The Secretary of Homeland Security E. Paperwork Reduction Act
amendments made by this final rule to notes that the amendments made by this The information collection
8 CFR parts 204, 205, 213a, and 299, final rule to 8 CFR parts 204 and 205 requirements contained in this rule
and the Department of Justice has were not included in the interim rule. (Form I–864, Affidavit of Support Under
determined, with respect to the No further notice and comment, Section 213A of the Act, Form I–864EZ,
amendments made to 8 CFR parts however, is necessary with respect to EZ Affidavit of Support, Form I–864A,
1205.1 and 1240, that it will not have these provisions. First, the addition of Contract Between Sponsor and
a significant economic impact on a these provisions to the final rule is a Household Member, Form I–864W,
substantial number of small entities. direct result from, and a logical Intending Immigrant’s I–864 Exemption
The factual basis for this outgrowth of, the comments received and Form I–865, Sponsor’s Notice of
determination is that this rule applies to concerning the impact of a visa Change of Address), have been
individuals who file affidavits of petitioner’s death on the alien previously approved for use by the
support on behalf of immigrants, and beneficiary’s case. Second, the Secretary Office of Management and Budget
the immigrants they sponsor. The of Homeland Security finds good cause (OMB) under the provisions of the
impact is on these persons in their that, under 5 U.S.C. 553(b)(3)(B), notice Paperwork Reduction Act (PRA). The
capacity as individuals, so that they are and comment on these issues is OMB control numbers for the Forms I–
not, for purposes of the rule, within the unnecessary because it is impracticable 864, I–864A and I–865 are contained in
definition of small entities established and not in the public interest to delay 8 CFR 299.5, Display of control
by 5 U.S.C. 601(6). In this regard, it is these provisions since they are not numbers. This final rule amends 8 CFR
important to note that it is the adverse to the interests of those affected 299.5 to update the OMB control
immigrant’s relative in that relative’s by them. In fact, the provisions will numbers for those Forms and to add the
individual capacity, and not the firm, benefit those affected by them, since, control numbers for the Forms I–864EZ
that incurs the obligation to support an without these specific amendments, and I–864W.
employment-based immigrant who is those affected by them would likely be As already noted, this final rule also
subject to the affidavit of support unable to immigrate. reflects the creation of two new Forms.
requirement. The Attorney General also finds that First, USCIS established a new Form I–
under 5 U.S.C. 553(b)(3)(B), notice and 864EZ, EZ Affidavit of support under
B. Unfunded Mandates Reform Act
comment concerning the amendments section 213A. A sponsor may use this
Since the duties imposed on the to 8 CFR part 1240 is not necessary. Form I–864EZ, instead of Form I–864, if
sponsor arise from the sponsor’s These amendments are rules of agency the sponsor meets all of these
participation in a voluntary Federal practice and procedure. The requirements: The sponsor is the Form
program, this rule is not a Federal amendments clarify the authority of an I–130 visa petitioner (and there is no
need for a joint sponsor or a Form I– this legislation, any family-based immigrants become U.S. citizens or can
864A); the affidavit of support is filed immigrant, and in certain cases, an be credited with 40 quarters of work.
on behalf of only one intending employment-based immigrant, is Since the enactment of the first
immigrant; the sponsor is seeking to inadmissible as a likely public charge general immigration statute on August
qualify based on the sponsor’s own unless an eligible sponsor files a legally 3, 1882, the law has required all
income alone (not on the basis of enforceable affidavit of support. prospective immigrants to the United
assets); and all the sponsor’s income is Public Law 104–193 also established States to demonstrate that they would
shown on IRS Forms W–2. Second, new requirements limiting the ability of not become public charges after
USCIS established a new Form I–864W, aliens—even those who are lawfully admission. Section 212(a)(4) of the
Intending Immigrant’s I–864 Exemption. admitted for permanent residence—to Immigration and Nationality Act (INA),
An intending immigrant submits the obtain means-tested public benefits. The as amended in 1996, provides that
Form I–864W, instead of the Form I– precise scope of these requirements, and immigrants may be inadmissible until
864, to establish that the intending of the statutory exceptions, is beyond they provide such evidence. Prior to
immigrant is not required to submit the the scope of this final rule since DHS these new public charge provisions and
Form I–864 because the intending does not administer the affected means- the legally enforceable and mandatory
immigrant (a) already has, or can be tested public benefit programs. DHS has affidavit of support requirements
credited with, 40 quarters of coverage concluded that these savings are more specified in the 1996 Personal
under the Social Security Act; (b) is the properly attributed to these other Responsibility and Work Opportunity
child of a U.S. citizen, and will acquire provisions of Public Law 104–193, as Reconciliation Act and IIRIRA, there
citizenship under section 320 of the Act amended, rather than the affidavit of were no statutory provisions regarding
if the application for admission as an support requirements created by section the requirements or means by which
immigrant or for adjustment of status is 213A of the Act and implemented by prospective immigrants, whether
approved; or (c) is the widow(er) of a the interim rule and this final rule. The adjusting status through the former
U.S. citizen or the battered spouse or Immigration and Naturalization Service
implementation of section 213A of the
child of a U.S. citizen or permanent in the United States or obtaining
Act is likely to have an impact on
resident alien. As noted, the final rule immigrant visas from Department of
sponsors, sponsored aliens, and the
adds the OMB Control Number for these State consular officers overseas, could
Government, but DHS believes that the
Forms to 8 CFR 299.5. establish the availability of financial
economic impact has not, since the
support in the United States.
F. Executive Order 12866 interim rule entered into force, Before implementation of the 1996
Executive Order 12866, ‘‘Regulatory exceeded $100 million in any given laws, prospective immigrants
Planning and Review,’’ 58 FR 51735, fiscal year, nor is the impact likely to demonstrated to Consular and
October 4, 1993, requires a exceed this threshhold in the future. Immigration officers that they would not
determination whether a regulatory Background become public charges through several
action is ‘‘significant’’ and therefore means, including the prospective
subject to review by the Office of If a sponsored immigrant applies for immigrant’s personal funds, savings, or
Management and Budget (OMB). This designated Federal means-tested public assets; prearranged employment in the
rule has been identified as significant benefits, the income and resources of United States; a public charge bond; a
under Executive Order 12866 and has the sponsor and the sponsor’s spouse non-binding affidavit of support from a
been reviewed by OMB. This rule is not are ‘‘deemed’’ to be available to the relative or friend in the United States
considered economically significant sponsored immigrant in determining the who had adequate income; or a
under section 3(f) of the Executive sponsored immigrant’s eligibility for the combination of these methods.
Order because it will have an annual benefit. The underlying assumption of Although adequate income was not
effect on the economy of less than $100 this deeming provision is that, since the defined in statute or regulation,
million. DHS notes that the former sponsor has agreed in the Affidavit of consular and immigration officers often
Immigration and Naturalization Service Support to provide financial support for used guidelines published in the
did consider the interim rule to be an an immigrant, then that sponsor’s Department of State Foreign Affairs
economically significant regulatory income and resources should be taken manual to establish that prospective
action. The former Service did not into account when determining whether immigrants would not become public
receive any comments on this estimate. a sponsored immigrant is eligible for a charges after entry. These guidelines
After further consideration of the policy designated means-tested benefit. In most suggested that, for an affidavit of
impact, we have reexamined how to cases, the counting of the sponsor’s support to be considered a favorable
define the baseline. Since it is income and assets as the income and factor in establishing that the
reasonable to assume that the world assets of the sponsored immigrant prospective immigrant would not
absent this final regulation will means that the sponsored immigrant is become a public charge, the income of
resemble the present, the baseline deemed to have income and assets at a the person signing the affidavit of
should reflect the future effect of current level sufficient to make the sponsored support should be equal to or greater
government programs and policies. In immigrant ineligible for the benefit than 100 percent of the applicable
this case, DHS forecasts that revisions sought. Affidavits of support will be Federal poverty guideline. Although
from the Interim Final rule, and current enforceable against sponsors by any these non-binding affidavits of support
status quo, will have an annual impact agency providing designated Federal, were intended for use in assessing the
far below the $100 million threshold state, or local means-tested benefits, financial support of family-based
required for an economically significant with certain exceptions (notably immigrants, they were occasionally filed
regulation. emergency medical care, disaster relief, on behalf of other categories of
This final rule implements provisions school lunches, foster care or adoption immigrants as well as other groups of
of section 423 of the Personal assistance for a child whose foster or aliens such as students and parolees.
Responsibility and Work Opportunity adoptive parent is a citizen or a Three Federal programs—Aid to
Reconciliation Act of 1996, Public Law qualified alien, student loans, and Head Families with Dependent Children
104–193, as amended by IIRIRA. Under Start benefits) until the sponsored (AFDC), Supplemental Security Income
(SSI), and Food Stamps—included the Impact on Petitioner and Joint Sponsors terminates, usually through the
income of sponsors signing the affidavit An alien who seeks admission as an sponsored immigrant naturalizing or
of support for three years (or, under SSI, immigrant under section 201(b)(2) or being credited with 40 qualifying
five years after 1992) following the 203(a) of the Act, whether from abroad quarters under Title II of the Social
immigrant’s entry in considering the or by adjustment of status when already Security Act.
financial eligibility of sponsored Sponsors who sign the new affidavits
in the United States, is inadmissible
immigrants for their benefit programs. of support can be held responsible for
unless the relative petitioning for the
Based on research conducted on reimbursement of any Federally-funded
alien’s admission has completed and
immigrants admitted in FY 1994, about means-tested public benefits, and
signed a legally binding and enforceable
potentially some State-funded programs,
three-quarters of all family-based affidavit of support on behalf of the
paid to sponsored immigrants while the
immigrants were sponsored using the intending immigrant and any
affidavit of support is in effect.
discretionary affidavit of support. accompanying family members. To be
sufficient to allow the intending Impact on Sponsored Immigrants
Impact on Federal and State Benefit immigrant(s) to obtain lawful permanent
Agencies Sponsored immigrants are affected by
resident status, the petitioner must the new provisions to the extent that
The fiscal impact of this final rule is demonstrate income that meets or they must present the documents to the
largely on Federal and State agencies exceeds 125 percent of the applicable Federal interviewing official and serve
administering designated means-tested poverty guideline for his or her as the intermediary between the sponsor
household size, which includes the and the government official for
public benefit programs, sponsors, and
sponsored intending immigrant(s) as obtaining additional supporting
sponsored immigrants. These
well as any other immigrants the documentation or an affidavit of support
designated means-tested programs are
petitioner previously sponsored and is from an additional or different joint
required to implement sponsor deeming still obliged to support. If the petitioner
policies (discussed above) as part of sponsor. Sponsored immigrants are also
cannot meet this threshold, one or two less likely to be eligible for any means-
determining the eligibility of a joint sponsors who can meet the income tested public benefits since the deeming
sponsored immigrant for such means- requirements and who are willing to provisions cover more benefit programs
tested benefits. Sponsor deeming also submit legally binding affidavits of and last a longer period of time than
generally makes it more difficult for support may do so on behalf of these under the earlier non-binding affidavit
sponsored immigrants to become intending immigrants. of support. Barring submission of a
eligible for benefits since the sponsor’s Before enactment of section 213A of sufficient affidavit of support for each
income and resources are counted as the Act, most family-based immigrants immigrating family member, intending
being available to the sponsored obtained and submitted a non-binding immigrants may find that their
immigrant. This addition of a sponsor’s affidavit of support. However, it was not immigration—or that of some of their
income to a sponsored immigrant’s universally the case that the affidavit of family members—is delayed. New
income usually results in an income support was signed by the person who provisions in the final rule allow each
level that exceeds the level necessary for filed the visa petition. Now, under family unit to have two separate joint
benefit eligibility. As part of this section 213A of the Act, each visa sponsors, thus reducing situations in
eligibility determination process, petitioner must sign a binding Form I– which family unification does not occur
Federal and State agencies must 864, Affidavit of Support. Since only because of the inability to find a joint
determine whether a permanent three-quarters of new immigrants were sponsor who is willing and able to
resident applicant for means-tested sponsored using the earlier non-binding support the entire family unit at level
public benefits has a sponsor under affidavit of support and about one- specified in the applicable poverty
section 213A of the Act. To do so, quarter of these sponsors were persons guidelines.
agencies can ask the USCIS SAVE other than the petitioner, there is an
additional requirement for close to half Impact on the Administering Agencies
Program whether a permanent resident
applicant has a sponsor under section of persons seeking the immigration of The interim rule also noted that the
213A of the Act, and if so, to provide their relatives. There are additionally affidavit of support requirements have
the name, last known address, and increased requirements for sponsors to imposed some administrative costs on
Social Security number of each sponsor. qualify as well as new documentary the Federal Government agencies
With this information, the agency can provisions. Therefore, all sponsors have administering the affidavit of support.
somewhat more responsibilities and Since all petitioners must now submit
determine whether a permanent
many have an additional responsibility. affidavits of support and a sizeable
resident applicant is subject to sponsor To complete the affidavit of support, portion of immigrants require one or
deeming policies, and will potentially a sponsor must complete Form I–864 two joint sponsors, Federal officials
be able to notify the sponsor about the and assemble the required supporting have considerably more documentation
sponsored immigrant’s application for documentation. Supporting immigrants to review. Additionally, if needed,
benefits, as well as to request from a so that they will not become public certain household members of a sponsor
sponsor information on his or her charges may also impose costs on may enter into an agreement with the
current income and assets, as sponsors. These costs are difficult to sponsor to provide income to help
appropriate, to be used along with the quantify since in most cases the support the sponsored immigrant(s)
immigrant’s income and assets, as sponsored immigrants will become through signing an I–864A and
appropriate, to determine eligibility for largely or entirely self-supporting. submitting supporting documentation.
means-tested public benefits. Such Under the sponsorship provisions of the Deficiencies in submitting complete
information is also necessary for an law, however, a sponsor is required, as information have increased requests for
agency to seek reimbursement from needed, to support each immigrant for additional information and additional
sponsors for the amount of means-tested whom they signed an affidavit of review by Federal officials.
benefits that might be provided to support at 125 percent of the poverty Federal costs also relate to the
sponsored immigrants. line until the sponsorship obligation printing and distribution of the Form I–
864 and related forms. This cost has available to benefit-providing agencies the state chooses to adopt. It also is for
been reduced somewhat by the upon request. each State to determine whether to seek
availability of the affidavit of support This regulation may also have an reimbursement from the sponsor for any
forms for downloading from the USCIS economic impact on State and local State-funded means-tested benefits an
Web page. The administrative costs governments, either because they alien may improperly receive. No State
arise, more significantly, from the choose to deem sponsor income and is required to take any action, other than
additional time it takes to adjudicate resources for their own programs or to give public notice of any decision the
applications for immigrant visas or because they choose to make their own State makes concerning these matters.
adjustment of status. Before the locally or State-funded assistance Section 213A of the Act does require
enactment of section 213A of the Act, programs available to permanent a State agency that does want to obtain
consular and immigration officers residents while they are not eligible for reimbursement to request it before filing
determined whether each new Federal means-tested programs. Savings suit. But since the State agency’s right
immigrant was likely to become a public to States from reduced use of Federally to seek reimbursement from the
funded means-tested public benefits sponsor, on the basis of an affidavit of
charge based on a variety of factors,
toward which States match funds may support, exists solely as a matter of
including the alien’s age, health, and job
be offset by some increased use of Federal law, the requirement to request
skills; proof of a job offer in the United
locally and State-funded programs. In reimbursement is not a matter of
States; by examining the non-binding the absence of information about what
affidavit of support or by the submission compelling the State to administer a
actions States will choose to take, costs federal program. Rather, the
of other documentation, including and savings to State and local
demonstration of significant assets. The requirement is simply a condition
governments are not estimated. precedent to the State’s exercise of a
use of Form I–134 was only one option
that was available. The Form I–864, by G. Executive Order 13132 right that would not exist in the absence
contrast, is required in almost all of section 213A of the Act. The States
DHS certifies that this regulation will
family-based cases. Because use of the do have certain reporting requirements
not have substantial direct effects on the
Form I–864 is more widespread, and under section 213A of the Act, section
States, on the relationship between the
because the statutory requirements for 421 of Public Law 104–193, and this
Federal Government and the States, or
an acceptable Form I–864 are exacting, on the distribution of power and rule. But the Printz Court expressly
responsibilities among the various refrained from holding that requiring
reviewing an affidavit of support is
levels of government. In particular, this States to provide information to the
considerably more time-consuming now
final rule does not in any way interfere Federal Government violates the
than it was before before enactment of
with a State’s ability to make its own principle of the Printz decision. 521
section 213A of the Act.
policy choice about whether to attribute U.S. at 918.
Some of these costs may be offset by
subsequent adjustments to fees for a sponsor’s income and assets to a H. Executive Order 12988 Civil Justice
sponsored immigrant, for purposes of Reform
immigrant visa and adjustment of status
the sponsored immigrant’s eligibility for
applications, a cost borne primarily by This final rule meets the applicable
State-funded benefits. Therefore, in
new family-based immigrants to the standards set forth in section 3(a) and
accordance with section 6 of Executive
United States. For example, section 232 3(b)(2) of Executive Order 12988.
Order 13132, it is determined that this
of H.R. 3247, 106th Cong. (1st Sess.
rule does not have sufficient federalism List of Subjects
1999), as enacted by section 1000(a)(7) implications to warrant the preparation
of the Consolidated Appropriations Act, of a federalism summary impact 8 CFR Part 204
2000, Public Law 106–113, permits statement. Administrative practice and
consular officers to assess a fee for In this respect it is important to note procedures, Aliens, Employment,
services designed to ensure that the decisions of the Supreme Court in Immigration, Petitions.
sponsors properly complete affidavits of Printz v. United States, 521 U.S. 898
support before they are forwarded to (1997), and New York v. United States, 8 CFR Part 205
consular officers. Unlike the Department 505 U.S. 144 (1992). In these cases, the Administrative practice and
of State, DHS does not currently charge Court reaffirmed the fundamental procedures, Aliens, Immigration,
an additional filing fee when an constitutional principle that the Petitions.
adjustment of status case includes an ‘‘[f]ederal Government may neither
affidavit of support. Thus, the costs that issue directives requiring the States to 8 CFR Part 213a
DHS incurs are not currently offset by address particular problems, nor Administrative practice and
application fees. The User Fee statute, command the states’ officers, or those of procedures, Aliens, Affidavits of
31 U.S.C. 9701, may warrant adjusting their political subdivisions, to support, Immigrants.
the USCIS fee schedule to include a fee administer or enforce a Federal
to recover the costs associated with regulatory program.’’ Printz, 521 U.S. at 8 CFR Part 299
reviewing a Form I–864 in connection 918. Nothing in section 213A of the Act, Aliens, Forms, Immigration,
with an application for adjustment of nor in this rule, violates this principle. Reporting and recordkeeping
status. The interim rule did not, Whether to have any State-funded requirements.
however, include any provision relating means-tested benefits remains a matter
to fees. Before adding a filing fee for the for each State to determine in 8 CFR Part 1205
Form I–864 USCIS would, therefore, accordance with its own constitutional Administrative practice and
promulgate a separate rulemaking after processes and policy priorities. It is also procedures, Aliens, Immigration,
a new notice and comment period. for each State to determine whether to Petitions.
USCIS must also maintain automated deem a sponsor’s income to the
sponsorship information on the 8 CFR Part 1240
sponsored immigrant, in determining a
sponsors of those immigrants who are sponsored immigrant’s eligibility for Administrative practice and
sponsored and make this information any State-funded means-tested benefits procedure; Immigration.
Department of Homeland Security (i) * * * sponsor and intending immigrants. The

(C) Upon the death of the petitioner, ‘‘household income’’ may not, however,
8 CFR CHAPTER I—AUTHORITY AND
ISSUANCE unless: include the income of an intending
(1) The petition is deemed under 8 immigrant, unless the intending
■ Accordingly, for the reasons stated in CFR 204.2(i)(1)(iv) to have been immigrant is either the sponsor’s spouse
the joint preamble, and pursuant to my approved as a Form I–360, Petition for or has the same principal residence as
authority as Secretary of Homeland Amerasian, Widow(er) or Special the sponsor and the preponderance of
Security, the interim rule adding 8 CFR Immigrant under 8 CFR 204.2(b); or the evidence shows that the intending
part 213a and amending 8 CFR part 299 (2) U.S. Citizenship and Immigration immigrant’s income results from the
that was published at 62 FR 54346 on Services (USCIS) determines, as a matter intending immigrant’s lawful
October 20, 1997, is adopted as a final of discretion exercised for humanitarian employment in the United States or
rule with the following changes, and 8 reasons in light of the facts of a from some other lawful source that will
CFR parts 204 and 205 are amended as particular case, that it is inappropriate continue to be available to the intending
follows: to revoke the approval of the petition. immigrant after he or she acquires
USCIS may make this determination permanent resident status. The prospect
PART 204—IMMIGRANT PETITIONS only if the principal beneficiary of the of employment in the United States that
■ 1. The authority citation for part 204 visa petition asks for reinstatement of has not yet actually begun will not be
continues to read as follows: the approval of the petition and sufficient to meet this requirement.
establishes that a person related to the Household size means the number
Authority: 8 U.S.C. 1101, 1103, 1151, 1153,
1154, 1182, 1186a, 1255, 1641; 8 CFR part 2. principal beneficiary in one of the ways obtained by adding the number of
described in section 213A(f)(5)(B) of the persons specified in this definition. In
■ 2. Section 204.2 is amended by adding Act is willing and able to file an calculating household size, no
a new paragraph (i)(1)(iv) to read as affidavit of support under 8 CFR part individual shall be counted more than
follows: 213a as a substitute sponsor. once. If the intending immigrant’s
* * * * * spouse or child is a citizen or already
§ 204.2 Petitions for relatives, widows and holds the status of an alien lawfully
widowers, and abused spouses and
children. PART 213a—AFFIDAVITS OF admitted for permanent residence, then
SUPPORT ON BEHALF OF the sponsor should not include that
* * * * * spouse or child in determining the total
(i) * * * IMMIGRANTS
household size, unless the intending
(1) * * *
■ 5. The authority citation for part 213a immigrant’s spouse or child is a
(iv) A currently valid visa petition
continues to read as follows: dependent of the sponsor.
previously approved to classify the
Authority: 8 U.S.C. 1183a; 8 CFR part 2. (1) In all cases, the household size
beneficiary as an immediate relative as includes the sponsor, the sponsor’s
the spouse of a United States citizen ■ 6. Section 213a.1 is amended by: spouse and all of the sponsor’s children,
must be regarded, upon the death of the ■ a. Revising the definitions for as defined in section 101(b)(1) of the Act
petitioner, as having been approved as ‘‘Domicile’’, ‘‘Household income’’, (other than a stepchild who meets the
a Form I–360, Petition for Amerasian, ‘‘Household size’’, ‘‘Income’’, ‘‘Sponsor’’ requirements of section 101(b)(1)(B) of
Widow(er) or Special Immigrant for and ‘‘Sponsored immigrant’’ and by the Act, if the stepchild does not reside
classification under paragraph (b) of this ■ b. Adding the definitions for ‘‘Joint with the sponsor, is not claimed by the
section, if, on the date of the petitioner’s sponsor’’ and ‘‘Substitute sponsor’’ in sponsor as a dependent for tax
death, the beneficiary satisfies the proper alphabetical sequence. purposes, and is not seeking to
requirements of paragraph (b)(1) of this The revisions and addition read as immigrate based on the stepparent/
section. If the petitioner dies before the follows: stepchild relationship), unless these
petition is approved, but, on the date of children have reached the age of
the petitioner’s death, the beneficiary § 213a.1 Definitions.
majority under the law of the place of
satisfies the requirements of paragraph * * * * * domicile and the sponsor did not claim
(b)(1) of this section, then the petition Domicile means the place where a them as dependents on the sponsor’s
shall be adjudicated as if it had been sponsor has his or her principal Federal income tax return for the most
filed as a Form I–360, Petition for residence, as defined in section recent tax year. The following persons
Amerasian, Widow(er) or Special 101(a)(33) of the Act, with the intention must also be included in calculating the
Immigrant under paragraph (b) of this to maintain that residence for the sponsor’s household size: Any other
section. foreseeable future. persons (whether related to the sponsor
* * * * * * * * * * or not) whom the sponsor has claimed
Household income means the income as dependents on the sponsor’s Federal
PART 205—REVOCATION OF used to determine whether the sponsor income tax return for the most recent
APPROVAL OF PETITIONS meets the minimum income tax year, even if such persons do not
requirements under sections have the same principal residence as the
■ 3. The authority citation for part 205 213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) sponsor, plus the number of aliens the
continues to read as follows: of the Act. It includes the income of the sponsor has sponsored under any other
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, sponsor, and of the sponsor’s spouse Forms I–864 for whom the sponsor’s
1154, 1155, 1182, and 1186a. and any other person included in support obligation has not terminated,
■ 4. Section 205.1 is amended by determining the sponsor’s household plus the number of aliens to be
revising paragraph (a)(3)(i)(C) to read as size, if the spouse or other person is at sponsored under the current Form I–
follows: least 18 years old and has signed a U.S. 864, even if such aliens do not or will
Citizenship and Immigration Services not have the same principal residence as
§ 205.1 Automatic revocation. (USCIS) Form I–864A, Affidavit of the sponsor. If a child, as defined in
(a) * * * Support Contract Between Sponsor and section 101(b)(1) of the Act, or spouse
(3) * * * Household Member, on behalf of the of the principal intending immigrant is
an alien who does not currently reside immigrant in one of the ways described access may call (800) 870–3676 to
in the United States and who either is in section 213A(f)(5)(B) of the Act, and obtain the Form I–864P.
not seeking to immigrate at the same who is willing to sign a Form I–864 in (A) If the intending immigrant is
time as, or will not seek to immigrate place of the now-deceased person who applying for an immigrant visa, the
within six months of the principal filed the Form I–130 or Form I–129F intending immigrant must submit the
intending immigrant’s immigration, the that provides the basis for the intending Form I–864 (and any Forms I–864A) to
sponsor may exclude that child or immigrant’s ability to seek permanent the Department of State officer with
spouse in calculating the sponsor’s residence. jurisdiction over the intending
household size. ■ 7. Section 213a.2 is amended by:
immigrant’s application for an
(2) If the sponsor chooses to do so, the ■ a. Revising paragraphs (a)(1) and
immigrant visa, in accordance with
sponsor may add to the number of (a)(2)(i)(A) and (C); instructions from the Department of
persons specified in the first part of this ■ b. Removing the ‘‘or’’ at the end of
State officer or the National Visa Center;
definition the number of relatives (as (B) If the intending immigrant is
paragraph (a)(2)(ii)(A);
defined in this section) of the sponsor applying for adjustment of status, the
■ c. Revising paragraph (a)(2)(ii)(B);
who have the same principal residence intending immigrant must submit the
■ d. Adding new paragraphs
as the sponsor and whose income will Form I–864 (and any Forms I–864A)
(a)(2)(ii)(C), (D), and (E); with the application for adjustment of
be relied on to meet the requirements of ■ e. Revising paragraphs (b)(1) and
section 213A of the Act and this part. status.
(b)(2); (iii) There must be a separate Form I–
* * * * * ■ f. Revising paragraphs (c), (e), and (f); 864 (and any Form(s) I–864A), with
Income means an individual’s total and by original signatures, for each principal
income (adjusted gross income for those ■ g. Adding paragraph (g). visa petition beneficiary.
who file IRS Form 1040EZ) for purposes The revisions and additions read as (iv) Each immigrant who will
of the individual’s U.S. Federal income follows: accompany the principal intending
tax liability, including a joint income immigrant must be included on Form I–
tax return (e.g., line 22 on the 2004 IRS § 213a.2 Use of affidavit of support.
864 (and any Forms I–864A). See
Form 1040, line 15 on the 2004 IRS (a) General. (1)(i)(A) In any case paragraph (f) of this section for further
Form 1040A, or line 4 on the 2004 IRS specified in paragraph (a)(2) of this information concerning immigrants who
Form 1040EZ or the corresponding line section, an intending immigrant is intend to accompany or follow the
on any future revision of these IRS inadmissible as an alien likely to principal intending immigrant to the
Forms). Only an individual’s Federal become a public charge, unless the United States.
income tax return—that is, neither a qualified sponsor specified in paragraph (v)(A) Except as provided for under
state or territorial income tax return nor (b) of this section or a substitute sponsor paragraph (a)(1)(v)(B) of this section, the
an income tax return filed with a foreign and, if necessary, a joint sponsor, has Department of State officer, immigration
government—shall be filed with an executed on behalf of the intending officer, or immigration judge shall
affidavit of support, unless the immigrant a Form I–864, Affidavit of determine the sufficiency of a Form I–
individual had no duty to file a Federal Support Under Section 213A of the Act, 864 or I–864A based on the sponsor’s,
income tax return, and claims that his in accordance with section 213A of the substitute sponsor’s, or joint sponsor’s
or her state, territorial or foreign taxable Act, this section, and the instructions on reasonably expected household income
income is sufficient to establish the Form I–864. The sponsor may use the in the year in which the intending
sufficiency of the affidavit of support. Form I–864EZ, EZ Affidavit of Support immigrant filed the application for an
* * * * * Under Section 213A of the Act, rather immigrant visa or for adjustment of
Joint sponsor means any individual than the Form I–864, if the sponsor status, and based on the evidence
who meets the requirements of section meets the eligibility requirements on the submitted with the Form I–864 or Form
213A(f)(1)(A), (B), (C), and (E) of the Act instructions for the Form I–864EZ. Each I–864A and the Poverty Guidelines in
and 8 CFR 213a.2(c)(1)(i), and who, as reference in this section to Form I–864 effect when the intending immigrant
permitted by section 213A(f)(5)(A) of is deemed to be a reference to Form I– filed the application for an immigrant
the Act, is willing to submit a Form I– 864EZ for any case in which the sponsor visa or adjustment of status.
864 and accept joint and several liability is eligible to use the Form I–864EZ. (B) If more than one year passes
with the sponsor or substitute sponsor, (B) If the intending immigrant claims between the filing of the Form I–864 or
in any case in which the sponsor’s or that, under paragraph (a)(2)(ii)(A), (C), Form I–864A and the hearing,
substitute sponsor’s household income or (E) of this section, the intending interview, or examination of the
is not sufficient to satisfy the immigrant is exempt from the intending immigrant concerning the
requirements of section 213A of the Act. requirement to file a Form I–864, the intending immigrant’s application for an
* * * * * intending immigrant must include with immigrant visa or adjustment of status,
Sponsor means an individual who is his or her application for an immigrant and the Department of State officer,
either required to execute or has visa or adjustment of status a properly immigration officer or immigration
executed a Form I–864 under this part. completed Form I–864W, Intending judge determines, in the exercise of
Sponsored immigrant means any alien Immigrant’s I–864 Exemption. discretion, that the particular facts of
who was an intending immigrant, once (ii) An affidavit of support is executed the case make the submission of
that person has been lawfully admitted when a sponsor signs a Form I–864 and additional evidence necessary to the
for permanent residence, so that the that Form I–864 is submitted, together proper adjudication of the case, then the
affidavit of support filed for that person with the current edition of Form I–864P Department of State officer, immigration
under this part has entered into force. and the initial evidence required by this officer or immigration judge may direct
Substitute sponsor means an section, in accordance with this the intending immigrant to submit
individual who meets the requirements paragraph. The current edition Form I– additional evidence. A Department of
of section 213A(f)(1)(A), (B), (C), and (E) 864P is available on the Internet at State officer or immigration officer shall
of the Act and 8 CFR 213a.2(c)(1)(i), http://www.uscis.gov/graphics/ make the request in writing, and
who is related to the principal intending formsfee/forms. Those without Internet provide the intending immigrant not
less than 30 days to submit the her spouse or parent(s), that he or she immigrant seeking an immigrant visa
additional evidence. An immigration has already worked, or under section under section 203(b) of the Act must file
judge may direct the intending 213A(a)(3)(B) of the Act, can already be a Form I–864 if the relative either filed
immigrant to submit additional credited with, 40 qualifying quarters of the immigrant visa petition on behalf of
evidence and also set the deadline for coverage as defined under title II of the the intending immigrant or owns a
submission of the initial evidence in Social Security Act, 42 U.S.C. 401, et significant ownership interest in an
any manner permitted under subpart C seq; entity that filed an immigrant visa
of 8 CFR part 1003 and any local rules (D) Is a child admitted under section petition on behalf of the intending
of the Immigration Court. If additional 211(a) of the Act and 8 CFR 211.1(b)(1); immigrant, but only if the relative is a
evidence is required under this or citizen or an alien lawfully admitted for
paragraph, an intending immigrant must (E) Is the child of a citizen, if the child permanent residence. If the intending
submit additional evidence (including is not likely to become a public charge immigrant is the beneficiary of more
copies or transcripts of any income tax (other than because of the provision of than one relative’s employment-based
returns for the most recent tax year) section 212(a)(4)(C) of the Act), and the immigrant visa petition, it is the relative
concerning the income or employment child’s lawful admission for permanent who filed the petition that is actually
of the sponsor, substitute sponsor, joint residence will result automatically in the basis for the intending immigrant’s
sponsor, or household member in the the child’s acquisition of citizenship eligibility to apply for an immigrant visa
year in which the Department of State under section 320 of the Act, as or adjustment of status who must file
officer, immigration officer, or amended. This exception applies to an the Form I–864.
immigration judge makes the request for alien orphan if the citizen parent(s) has (c) Sponsorship requirements. (1)(i)
additional evidence. In this case, the (or have) legally adopted the alien General. A sponsor must be:
sufficiency of the Form I–864 and any orphan before the alien orphan’s (A) At least 18 years of age;
Form I–864A will be determined based acquisition of permanent residence, and (B) Domiciled in the United States or
on the sponsor’s, substitute sponsor’s, or if both adoptive parents personally saw any territory or possession of the United
and observed the alien orphan before or States; and
joint sponsor’s reasonably expected
during the foreign adoption proceeding. (C)(1) A citizen or an alien lawfully
household income in the year the
An affidavit of support under this part admitted for permanent residence in the
Department of State officer, immigration case described in paragraph (a)(2)(i) of
officer or immigration judge makes the is still required if the citizen parent(s)
will adopt the alien orphan in the this section; or
request for additional evidence, and (2) A citizen or national or an alien
based on the evidence submitted in United States only after the alien
orphan’s acquisition of permanent lawfully admitted for permanent
response to the request for additional residence if the individual is a
residence. If the citizen parent(s)
evidence and on the Poverty Guidelines substitute sponsor or joint sponsor.
adopted the alien orphan abroad, but at
in effect when the request for evidence (ii) Determination of domicile. (A) If
least one of the adoptive parents did not
was issued. the sponsor is residing abroad, but only
see and observe the alien orphan before
(2)(i) * * * temporarily, the sponsor bears the
or during the foreign adoption
(A) An immediate relative under burden of proving, by a preponderance
proceeding, then an affidavit of support
section 201(b)(2)(A)(i) of the Act, of the evidence, that the sponsor’s
under this part is still required, unless
including orphans and any alien domicile (as that term is defined in 8
the citizen parent establishes that, under
admitted as a K nonimmigrant when the CFR 213a.1) remains in the United
the law of the State of the alien orphan’s
alien seeks adjustment of status; States, provided, that a permanent
intended residence in the United States,
* * * * * the foreign adoption decree is entitled to resident who is living abroad
(C) An employment-based immigrant recognition without the need for a temporarily is considered to be
under section 203(b) of the Act, if a formal administrative or judicial domiciled in the United States if the
relative (as defined in 8 CFR 213a.1) of proceeding in the State of proposed permanent resident has applied for and
the intending immigrant is a citizen or residence. obtained the preservation of residence
an alien lawfully admitted for (b) * * * benefit under section 316(b) or section
permanent residence who either filed (1) For immediate relatives and 317 of the Act, and provided further,
the employment-based immigrant family-based immigrants. The person that a citizen who is living abroad
petition or has a significant ownership who filed the Form I–130 or Form I–600 temporarily is considered to be
interest in the entity that filed the immigrant visa petition (or the Form I– domiciled in the United States if the
immigrant visa petition on behalf of the 129F petition, for a K nonimmigrant citizen’s employment abroad meets the
intending immigrant. An affidavit of seeking adjustment), the approval of requirements of section 319(b)(1) of the
support under this section is not which forms the basis of the intending Act.
required, however, if the relative is a immigrant’s eligibility to apply for an (B) If the sponsor is not domiciled in
brother or sister of the intending immigrant visa or adjustment of status the United States, the sponsor can still
immigrant, unless the brother or sister is as an immediate relative or a family- sign and submit a Form I–864 so long
a citizen. based immigrant, must execute a Form as the sponsor satisfies the Department
(ii) * * * I–864 on behalf of the intending of State officer, immigration officer, or
(B) Seeks admission as an immigrant immigrant. If the intending immigrant is immigration judge, by a preponderance
on or after December 19, 1997, in a the beneficiary of more than one of the evidence, that the sponsor will
category specified in paragraph (a)(2)(i) approved immigrant visa petition, it is establish a domicile in the United States
of this section with an immigrant visa the person who filed the petition that is on or before the date of the principal
issued on the basis of an immigrant visa actually the basis for the intending intending immigrant’s admission or
application filed with the Department of immigrant’s eligibility to apply for an adjustment of status. The intending
State officer before December 19, 1997; immigrant visa or adjustment of status immigrant will be inadmissible under
(C) Establishes, on the basis of the who must file the Form I–864. section 212(a)(4) of the Act, and the
alien’s own Social Security (2) For employment-based immigration officer or immigration
Administration record or those of his or immigrants. A relative of an intending judge must deny the intending
immigrant’s application for admission the most recent six months, financial reimbursement obligation that the
or adjustment of status, if the sponsor statements, or other evidence of the sponsor may incur, and to submit to the
has not, in fact, established a domicile sponsor’s anticipated household income personal jurisdiction of any court that
in the United States on or before the for the year in which the intending has subject matter jurisdiction over a
date of the decision on the principal immigrant files the application for an civil suit to enforce the contract or the
intending immigrant’s application for immigrant visa or adjustment of status. affidavit of support. The sponsor, as a
admission or adjustment of status. In the By executing Form I–864, the sponsor party to the contract, may bring suit to
case of a sponsor who comes to the certifies under penalty of perjury under enforce the contract. The intending
United States intending to establish his United States law that the evidence of immigrants and any Federal, state, or
or her principal residence in the United his or her current household income is local agency or private entity that
States at the same time as the principal true and correct and that each transcript provides a means-tested public benefit
intending immigrant’s arrival and or photocopy of each income tax return to an intending immigrant are third
application for admission at a port-of- is a true and correct transcript or party beneficiaries of the contract
entry, the sponsor shall be deemed to photocopy of the return that the sponsor between the sponsor and the other
have established a domicile in the filed with the Internal Revenue Service individual or individuals on whose
United States for purposes of this for that taxable year. income the sponsor relies and may bring
paragraph, unless the sponsor is also a (B) If the sponsor had no legal duty to an action to enforce the contract in the
permanent resident alien and the file a Federal income tax return for the same manner as third party beneficiaries
sponsor’s own application for admission most recent tax year, the sponsor must of other contracts.
is denied and the sponsor leaves the explain why he or she had no legal duty (3) If there is no spouse or child
United States under a removal order or to a file a Federal income tax return for immigrating with the intending
as a result of the sponsor’s withdrawal that year. If the sponsor claims he or she immigrant, then there will be no need
of the application for admission. had no legal duty to file for any reason for the intending immigrant to sign a
(2) Demonstration of ability to support other than the level of the sponsor’s Form I–864A, even if the sponsor will
intending immigrants. In order for the income for that year, the initial evidence rely on the continuing income of the
intending immigrant to overcome the submitted with the Form I–864 must intending immigrant to meet the income
public charge ground of inadmissibility, also include any evidence of the amount requirement. If, however, the sponsor
the sponsor must demonstrate the and source of the income that the seeks to rely on an intending
means to maintain the intending sponsor claims was exempt from immigrant’s continuing income to
immigrant at an annual income of at taxation and a copy of the provisions of establish the sponsor’s ability to support
least 125 percent of the Federal poverty any statute, treaty, or regulation that the intending immigrant’s spouse or
line. If the sponsor is on active duty in supports the claim that he or she had no children, then the intending immigrant
the Armed Forces of the United States duty to file an income tax return with
whose income is to be relied on must
(other than active duty for training) and respect to that income. If the sponsor
sign the Form I–864A.
the intending immigrant is the sponsor’s had no legal obligation to file a Federal
spouse or child, the sponsor’s ability to income tax return, he or she may submit (4) If the sponsor relies on the income
maintain income must equal at least 100 other evidence of annual income. The of any individual who has signed Form
percent of the Federal poverty line. fact that a sponsor had no duty to file I–864A, the sponsor must also include
(i) Proof of income. (A) The sponsor a Federal income tax return does not with the Form I–864 and Form I–864A,
must include with the Form I–864 either relieve the sponsor of the duty to file with respect to the person who signed
a photocopy or an Internal Revenue Form I–864. the Form I–864A, the initial evidence
Service-issued transcript of his or her (C)(1) The sponsor’s ability to meet required under paragraph (c)(2)(i)(A) of
complete Federal income tax return for the income requirement will be this section. The household member’s
the most recent taxable year (counting determined based on the sponsor’s tax return(s) must be for the same tax
from the date of the signing, rather than household income. In establishing the year as the sponsor’s tax return(s). An
the filing, of the Form I–864). However, household income, the sponsor may rely individual who signs Form I–864A
the sponsor may, at his or her option, entirely on his or her personal income, certifies, under penalty of perjury, that
submit tax returns for the three most if it is sufficient to meet the income the submitted transcript or photocopy of
recent years if the sponsor believes that requirement. The sponsor may also rely the tax return is a true and correct
these additional tax returns may help in on the income of the sponsor’s spouse transcript or photocopy of the Federal
establishing the sponsor’s ability to and of any other person included in income tax return filed with the Internal
maintain his or her income at the determining the sponsor’s household Revenue Service, and that the
applicable threshold set forth in Form I– size, if the spouse or other person is at information concerning that person’s
864P, Poverty Guidelines. Along with least 18 years old and has completed employment and income is true and
each transcript or photocopy, the and signed a Form I–864A. A person correct.
sponsor must also submit as initial does not need to be a U.S. citizen, (5) If the person who signs the Form
evidence copies of all schedules filed national, or alien lawfully admitted for I–864A is not an intending immigrant,
with each return and (if the sponsor permanent residence in order to sign a and is any person other than the
submits a photocopy, rather than an IRS Form I–864A. sponsor’s spouse or a claimed
transcript of the tax return(s)) all Forms (2) Each individual who signs Form I– dependent of the sponsor, the sponsor
W–2 (if the sponsor relies on income 864A agrees, in consideration of the must also attach proof that the person is
from employment) and Forms 1099 (if sponsor’s signing of the Form I–864, to a relative (as defined in 8 CFR 213a.1)
the sponsor relies on income from provide to the sponsor as much of the sponsor and that the Form I–864A
sources documented on Forms 1099) in financial assistance as may be necessary signer has the same principal residence
meeting the income threshold. The to enable the sponsor to maintain the as the sponsor. If an intending
sponsor may also include as initial intending immigrants at the annual immigrant signs a Form I–864A, the
evidence: Letter(s) evidencing his or her income level required by section sponsor must also provide proof that the
current employment and income, 213A(a)(1)(A) of the Act, to be jointly sponsored immigrant has the same
paycheck stub(s) (showing earnings for and severally liable for any principal residence as the sponsor,
unless the sponsored immigrant is the Forces of the United States and the (1) If the intending immigrant is the
sponsor’s spouse. intending immigrant is the sponsor’s spouse or child of a United States
(D) Effect of failure to file income tax spouse or child. The sponsor’s citizen (and the child has reached his or
returns. If a sponsor, substitute sponsor, household income for the year in which her 18th birthday), three times the
joint sponsor, or household member did the intending immigrant filed the difference between the sponsor’s
not file a Federal income tax return for application for an immigrant visa or household income and the Federal
the year for which a transcript or adjustment of status shall be given the poverty line for the sponsor’s household
photocopy must be provided, the Form greatest evidentiary weight; any tax size (including all immigrants
I–864 or Form I–864A will not be return and other information relating to sponsored in any affidavit of support in
considered sufficient to satisfy the the sponsor’s financial history will serve force or submitted under this section);
requirements of section 213A of the Act, as evidence tending to show whether (2) If the intending immigrant is an
even if the household income meets the the sponsor is likely to be able to alien orphan who will be adopted in the
requirements of section 213A of the Act, maintain his or her income in the United States after the alien orphan
unless the sponsor, substitute sponsor, future. If the projected household acquires permanent residence (or in
joint sponsor, or household member income for the year in which the whose case the parents will need to seek
proves, by a preponderance of the intending immigrant filed the a formal recognition of a foreign
evidence, that he or she had no duty to application for an immigrant visa or adoption under the law of the State of
file. If the sponsor, substitute sponsor, adjustment of status meets the the intending immigrant’s proposed
joint sponsor or household member applicable income threshold, the residence because at least one of the
cannot prove that he or she had no duty affidavit of support may be held to be parents did not see the child before or
to file, then the Form I–864 or Form I– insufficient on the basis of the during the adoption), and who will, as
864A will not be considered sufficient household income but only if, on the a result of the adoption or formal
to satisfy the requirements of section basis of specific facts, including a recognition of the foreign adoption,
213A of the Act until the sponsor, material change in employment or acquire citizenship under section 320 of
substitute sponsor, joint sponsor, or income history of the sponsor, the Act, the difference between the
household member proves that he or she substitute sponsor, joint sponsor or sponsor’s household income and the
has satisfied the obligation to file the tax household member, the number of Federal poverty line for the sponsor’s
return and provides a transcript or copy aliens included in Forms I–864 that the household size (including all
of the return. sponsor has signed but that have not yet immigrants sponsored in any affidavit of
(ii) Determining the sufficiency of an entered into force in accordance with support in force or submitted under this
affidavit of support. The sufficiency of paragraph (e) of this section, or other section);
an affidavit of support shall be relevant facts, it is reasonable to infer
(3) In all other cases, five times the
determined in accordance with this difference between the sponsor’s
that the sponsor will not be able to
paragraph. household income and the Federal
maintain his or her household income at
(A) Income. The sponsor must first poverty line for the sponsor’s household
calculate the total income attributable to a level sufficient to meet his or her
size (including all immigrants
the sponsor under paragraph (c)(2)(i)(C) support obligations.
sponsored in any affidavit of support in
of this section for the year in which the (iii) Inability to meet income force or submitted under this section).
intending immigrant filed the requirement. (A) If the sponsor is unable (C) Joint sponsor. A joint sponsor
application for an immigrant visa or to meet the minimum income must execute a separate Form I–864 on
adjustment of status. requirement in paragraph (c)(2)(iii) of behalf of the intending immigrant(s) and
(B) Number of persons to be this section, the intending immigrant is be willing to accept joint and several
supported. The sponsor must then inadmissible under section 212(a)(4) of liability with the sponsor or substitute
determine his or her household size as the Act unless: sponsor. A joint sponsor must meet all
defined in 8 CFR 213a.1. (1) The sponsor, the intending the eligibility requirements under
(C) Sufficiency of income. Except as immigrant or both, can meet the paragraph (c)(1) of this section, except
provided in this paragraph, or in significant assets provision of paragraph that the joint sponsor does not have to
paragraph (a)(1)(v)(B) of this section, the (c)(2)(iv)(B) of this section; or have filed a visa petition on behalf of
sponsor’s affidavit of support shall be (2) A joint sponsor executes a separate the intending immigrant. The joint
considered sufficient to satisfy the Form I–864. sponsor must demonstrate his or her
requirements of section 213A of the Act (B) Significant assets. The sponsor ability to support the intending
and this section if the reasonably may submit evidence of the sponsor’s immigrant in the manner specified in
expected household income for the year ownership of significant assets, such as paragraph (c)(2) of this section. A joint
in which the intending immigrant filed savings accounts, stocks, bonds, sponsor’s household income must meet
the application for an immigrant visa or certificates of deposit, real estate, or or exceed the income requirement in
adjustment of status, calculated under other assets. An intending immigrant paragraph (c)(2)(iii) of this section
paragraph (c)(2)(iii)(A) of this section, may submit evidence of the intending unless the joint sponsor can
would equal at least 125 percent of the immigrant’s assets as a part of the demonstrate significant assets as
Federal poverty line for the sponsor’s affidavit of support, even if the provided in paragraph (c)(2)(iv)(A) of
household size as defined in 8 CFR intending immigrant is not required to this section. The joint sponsor’s
213a.1, under the Poverty Guidelines in sign a Form I–864A. The assets of any household income must equal at least
effect when the intending immigrant person who has signed a Form I–864A 125% of the Poverty Guidelines for the
filed the application for an immigrant may also be considered in determining joint sponsor’s household size, unless
visa or for adjustment of status, except whether the assets are sufficient to meet the joint sponsor is on active duty in the
that the sponsor’s income need only this requirement. To qualify as Armed Forces and the intending
equal at least 100 percent of the Federal ‘‘significant assets’’ the combined cash immigrant is the joint sponsor’s spouse
poverty line for the sponsor’s household value of all the assets (the total value of or child, in which case the joint
size, if the sponsor is on active duty the assets less any offsetting liabilities) sponsor’s household income is
(other than for training) in the Armed must exceed: sufficient if it equals at least 100% of
the Poverty Guidelines for the joint the filing of a sufficient affidavit of be subject to removal from the United
sponsor’s household size. An intending support under section 213A of the Act States.
immigrant may not have more than one and this section, an alien may be found * * * * *
joint sponsor, but, if the joint sponsor’s to be inadmissible under section (e) Commencement and termination
household income is not sufficient to 212(a)(4) of the Act if the alien’s case of support obligation. (1) With respect to
meet the income requirement with includes evidence of specific facts that, any intending immigrant, the support
respect to the principal intending when considered in light of section obligation and change of address
immigrant, any spouse and all the 212(a)(4)(B) of the Act, support a obligation imposed on a sponsor,
children who, under section 203(d) of reasonable inference that the alien is substitute sponsor, or joint sponsor
the Act, seek to accompany the likely at any time to become a public under Form I–864, and any household
principal intending immigrant, then the charge. member’s support obligation under
joint sponsor may specify on the Form Form I–864A, all begin when the
(v) Verification of employment,
I–864 that the Form I–864 is submitted immigration officer or the immigration
only on behalf of the principal income, and assets. The Federal
Government may pursue verification of judge grants the intending immigrant’s
intending immigrant and those application for admission as an
accompanying family members any information provided on or with
Form I–864, including information on immigrant or for adjustment of status on
specifically listed on the Form I–864. the basis of an application for admission
The remaining accompanying family employment, income, or assets, with the
employer, financial or other institutions, or adjustment that included the Form I–
members will then be inadmissible 864 or Form I–864A. Any person
under section 212(a)(4) of the Act unless the Internal Revenue Service, or the
Social Security Administration. To completing and submitting a Form I–
a second joint sponsor submits a Form 864 as a joint sponsor or a Form I–864A
I–864 on behalf of all the remaining facilitate this verification process, the
sponsor, joint sponsor, substitute as a household member is not bound to
family members who seek to accompany any obligations under section 213A of
the principal intending immigrant and sponsor, or household member must
sign and submit any necessary waiver the Act if, notwithstanding his or her
who are not included in the first joint signing of a Form I–864 or Form I–864A,
sponsor’s Form I–864. There may not be form when directed to do so by the
immigration officer, immigration judge, the Department of State officer (in
more than two joint sponsors for the
or Department of State officer who has deciding an application for an
family group consisting of the principal
jurisdiction to adjudicate the case to immigrant visa) or the immigration
intending immigrant and the
which the Form I–864 or I–864A relates. officer or immigration judge (in
accompanying spouse and children who
A sponsor’s, substitute sponsor’s, joint deciding an application for admission or
will accompany the principal intending
sponsor’s, or household member’s adjustment of status) includes in the
immigrant.
(D) Substitute sponsor. In a family- failure or refusal to sign any waiver decision a specific finding that the
sponsored case, if the visa petitioner needed to verify the information when sponsor or substitute sponsor’s own
dies after approval of the visa petition, directed to do so constitutes a household income is sufficient to meet
but the U.S. Citizenship and the income requirements under section
withdrawal of the Form I–864 or I–
Immigration Services determines, under 213A of the Act.
864A, so that, in adjudicating the
8 CFR 205.1(a)(3)(i)(C), that for (2)(i) The support obligation and the
intending immigrant’s application for an
humanitarian reasons it would not be change of address reporting requirement
immigrant visa or adjustment of status,
appropriate to revoke approval of the imposed on a sponsor, substitute
the Form I–864 or Form I–864A will be
visa petition, then a substitute sponsor, sponsor and joint sponsor under Form
deemed not to have been filed.
as defined in 8 CFR 213a.1, may sign the I–864, and any household member’s
(vi) Effect of fraud or material support obligation under Form I–864A,
Form I–864. The substitute sponsor
concealment or misrepresentation. A all terminate by operation of law when
must meet all the requirements of this
Form I–864 or Form I–864A is the sponsored immigrant:
section that would have applied to the
visa petitioner, had the visa petitioner insufficient to satisfy the requirements (A) Becomes a citizen of the United
survived and been the sponsor. The of section 213A of the Act and this part, States;
substitute sponsor’s household income and the affidavit of support shall be (B) Has worked, or can be credited
must equal at least 125% of the Poverty found insufficient to establish that the with, 40 qualifying quarters of coverage
Guidelines for the substitute sponsor’s intending immigrant is not likely to under title II of the Social Security Act,
household size, unless the intending become a public charge, if the 42 U.S.C. 401, et seq., provided that the
immigrant is the substitute sponsor’s Department of State officer, immigration sponsored immigrant is not credited
spouse or child and the substitute officer or immigration judge finds that with any quarter beginning after
sponsor is on active duty in the Armed Form I–864 or Form I–864A is forged, December 31, 1996, during which the
Forces (other than active duty for counterfeited, or otherwise falsely sponsored immigrant receives or
training), in which case the substitute executed, or if the Form I–864 or Form received any Federal means-tested
sponsor’s household income is I–864A conceals or misrepresents facts public benefit;
sufficient if it equals at least 100% of concerning household size, household (C) Ceases to hold the status of an
the Poverty Guidelines for the substitute income, employment history, or any alien lawfully admitted for permanent
sponsor’s household size. If the other material fact. Any person who residence and departs the United States
substitute sponsor’s household income knowingly participated in the forgery, (if the sponsored immigrant has not
is not sufficient to meet the counterfeiting, or false production of a filed USCIS Form I–407, Abandonment
requirements of section 213A(a)(f)(1)(E) Form I–864 or Form I–864A, or in any of Lawful Permanent Resident Status,
of the Act and paragraph (c)(2) of this concealment or misrepresentation of this provision will apply only if the
section, the alien will be inadmissible any material fact, may be subject to a sponsored immigrant is found in a
unless a joint sponsor signs a Form I– civil penalty under section 274C of the removal proceeding to have abandoned
864. Act, to criminal prosecution, or to both, that status while abroad);
(iv) Remaining inadmissibility on to the extent permitted by law. If the (D) Obtains in a removal proceeding
public charge grounds. Notwithstanding person is an alien, the person may also a new grant of adjustment of status as
relief from removal (in this case, if the joint sponsor, household member, or § 213a.3 Notice of change of address.
sponsored immigrant is still subject to intending immigrant has presented a (a)(1) If the address of a sponsor
the affidavit of support requirement signed Form I–864 or Form I–864A to an (including a substitute sponsor or joint
under this part, then any individual(s) immigration officer or immigration sponsor) changes for any reason while
who signed the Form I–864 or I–864A judge, the sponsor, substitute sponsor, the sponsor’s support obligation under
in relation to the new adjustment joint sponsor, or household member the affidavit of support remains in effect
application will be subject to the may disavow his or her agreement to act with respect to any sponsored
obligations of this part, rather than those as sponsor, substitute sponsor, joint immigrant, the sponsor shall file Form
who signed a Form I–864 or I–864A in sponsor, or household member only if I–865, Sponsor’s Notice of Change of
relation to an earlier grant of admission he or she does so in writing and submits Address, with U.S. Citizenship and
as an immigrant or of adjustment of the document to the immigration officer Immigration Services (USCIS) no later
status); or or immigration judge before the decision than 30 days after the change of address
(E) Dies. on the adjustment application. becomes effective. As evidence that the
(ii) The support obligation under (g) Aliens who accompany or follow- sponsor, substitute sponsor, or joint
Form I–864 also terminates if the to-join a principal intending immigrant. sponsor has complied with this
sponsor, substitute sponsor or joint (1) To avoid inadmissibility under requirement, USCIS will accept a
sponsor dies. A household member’s section 212(a)(4) of the Act, an alien photocopy of the properly completed
obligation under Form I–864A who applies for an immigrant visa, Form I–865, together with proof of the
terminates when the household member admission, or adjustment of status as an Form’s delivery to the proper service
dies. The death of one person who had alien who is accompanying, as defined center (such as a post-marked United
a support obligation under a Form I–864 in 22 CFR 40.1, a principal intending States Postal Service Express Mail or
or Form I–864A does not terminate the immigrant must submit clear and true certified mail receipt, showing that the
support obligation of any other sponsor, photocopies of the signed Form(s) I–864 sponsor mailed the Form I–865 to the
substitute sponsor, joint sponsor, or (and any Form(s) I–864A) filed on proper USCIS service center, together
household member with respect to the behalf of the principal intending with the corresponding post-marked
same sponsored immigrant. immigrant.
(3) The termination of the sponsor’s, United States Postal Service return
(2)(i) To avoid inadmissibility under
substitute sponsor’s, or joint sponsor’s receipt card or other proof of delivery
section 212(a)(4) of the Act, an alien
obligations under Form I–864 or of a provided by the United States Postal
who applies for an immigrant visa,
household member’s obligations under Service, or, if the sponsor, substitute
admission, or adjustment of status as an
Form I–864A does not relieve the sponsor, or joint sponsor sent the Form
alien who is following-to-join a
sponsor, substitute sponsor, joint principal intending immigrant must I–865 by a commercial delivery service,
sponsor, or household member (or their submit new Forms I–864 and I–864A, a photocopy of the shipping label and
respective estates) of any reimbursement together with all documents or other signature proof of delivery).
obligation under section 213A(b) of the evidence necessary to prove that the (2) If the sponsor is an alien, filing
Act and this section that accrued before new Forms I–864 and I–864A comply Form I–865 does not relieve the sponsor
the support obligation terminated. with the requirements of section 213A of the requirement under 8 CFR 265.1
(f) Withdrawal of Form I–864 or Form of the Act and 8 CFR part 213a. also to file a Form AR–11, Alien’s
I–864A. (1) In an immigrant visa case, (ii) When paragraph (g)(2)(i) of this Change of Address Card.
once the sponsor, substitute sponsor, section requires the filing of a new Form * * * * *
joint sponsor, household member, or I–864 for an alien who seeks to follow- ■ 9. Section 213a.4 is amended by:
intending immigrant has presented a to-join a principal sponsored immigrant, ■ a. Revising paragraph (a);
signed Form I–864 or Form I–864A to a the same sponsor who filed the visa ■ b. Adding a heading to paragraph (b),
Department of State officer, the sponsor, petition and Form I–864 for the and adding a sentence at the end of
substitute sponsor, joint sponsor, or principal sponsored immigrant must file paragraph (b); and by
household member may disavow his or the new Form I–864 on behalf of the ■ c. Revising paragraph (c).
her agreement to act as sponsor, alien seeking to follow-to-join. If that The revisions and additions read as
substitute sponsor, joint sponsor, or person has died, then the alien seeking follows:
household member if he or she does so to follow-to-join is inadmissible unless
in writing and submits the document to a substitute sponsor, as defined by 8 § 213a.4 Actions for reimbursement,
the Department of State officer before CFR 213a.1, signs a new Form I–864 public notice, and congressional reports.
the actual issuance of an immigrant visa that meets the requirements of this (a) Requests for reimbursement;
to the intending immigrant. Once the section. Forms I–864A may be signed by commencement of civil action. (1) By
intending immigrant has obtained an persons other than the person or agencies. (i) If an agency that provides
immigrant visa, a sponsor, substitute persons who signed Forms I–864A on a means-tested public benefit to a
sponsor, joint sponsor, or household behalf of the principal sponsored sponsored immigrant wants to seek
member cannot disavow his or her immigrant. reimbursement from a sponsor,
agreement to act as a sponsor, joint (iii) If a joint sponsor is needed in the household member, or joint sponsor, the
sponsor, or household member unless case of an alien who seeks to follow-to- program official must arrange for service
the person or entity who filed the visa join a principal sponsored immigrant, of a written request for reimbursement
petition withdraws the visa petition in and the principal sponsored immigrant upon the sponsor, household member,
writing, as specified in 8 CFR also required a joint sponsor when the or joint sponsor, by personal service, as
205.1(a)(3)(i)(A) or 8 CFR principal sponsored immigrant defined by 8 CFR 103.5a(a)(2), except
205.1(a)(3)(iii)(C), and also notifies the immigrated, that same person may, but that the person making personal service
Department of State officer who issued is not required to be, the joint sponsor need not be a Federal Government
the visa of the withdrawal of the for the alien who seeks to follow-to-join officer or employee.
petition. the principal sponsored immigrant. (ii) The request for reimbursement
(2) In an adjustment of status case, ■ 8. Section 213a.3(a) is revised to read must specify the date the sponsor,
once the sponsor, substitute sponsor, as follows: household member, or joint sponsor’s
support obligation commenced (this is reimbursement in accordance with this paragraph (c)(3) of this section. The
the date the sponsored immigrant section. copy should be accompanied by a cover
became a permanent resident), the (2) By the sponsored immigrant. letter that includes the reference ‘‘Civil
sponsored immigrant’s name, alien Section 213A(b) of the Act does not Judgments for Congressional Reports
registration number, address, and date require a sponsored immigrant to under section 213A(i)(3) of the Act.’’
of birth, as well as the types of means- request the sponsor or joint sponsor to Failure to file a certified copy of the
tested public benefit(s) that the comply with the support obligation, final civil judgment in accordance with
sponsored immigrant received, the dates before bringing an action to compel this section has no effect on the
the sponsored immigrant received the compliance. plaintiff’s ability to collect on the
means-tested public benefit(s), and the (3) Role of USCIS and DHS. Upon the judgment pursuant to law.
total amount of the means-tested public receipt of a duly issued subpoena, (2) If a Federal, state, or local agency
benefit(s) received. USCIS may provide a certified copy of or private entity that administers any
(iii) It is not necessary to make a a Form I–864 or Form I–864A that has means-tested public benefit makes a
separate request for each type of means- been filed on behalf of a specific alien determination under section 421(e) of
tested public benefit, nor for each for use as evidence in a civil action to the Personal Responsibility and Work
separate payment. The agency may enforce the Form I–864 or Form I–864A, Opportunity Reconciliation Act of 1996
instead aggregate in a single request all and may also disclose the last known in the case of any sponsored immigrant,
benefit payments the agency has made address and social security number of the program official shall send written
as of the date of the request. A state or the sponsor, substitute sponsor, or joint notice of the determination, including
local government may make a single sponsor. Requesting information the name of the sponsored immigrant
reimbursement request on behalf of all through the Systematic Alien and of the sponsor, to the address listed
of the state or local government agencies Verification for Entitlement (SAVE)
in paragraph (c)(3) of this section. The
that have provided means-tested public Programis sufficient, and a subpoena is
written notice should include the
not required, to obtain the sponsored
benefits. reference ‘‘Determinations under 421(e)
immigrant’s current immigration or
(iv) So that the sponsor, household of the Personal Responsibility and Work
citizenship status or the name, social
member, or joint sponsor may verify the Opportunity Reconciliation Act of
security number and last known address
accuracy of the request, the request for 1996.’’
of a sponsor, substitute sponsor, or joint
reimbursement must include an sponsor. (3) The address referred to in
itemized statement supporting the claim (b) Designation of means-tested public paragraphs (c)(1) and (c)(2) of this
for reimbursement. The request for benefits. * * * A sponsor, joint section is: Office of Program and
reimbursement must also include a sponsor, or household member is not Regulation Development, U.S.
notification to the sponsor, household liable to reimburse any agency for any Citizenship and Immigration Services,
member, or joint sponsor that the benefit with respect to which a public 20 Massachusetts Avenue, NW.,
sponsor, household member, or joint notice of the determination that the Washington, DC, 20529.
sponsor must, within 45 days of the date benefit is a means-tested public benefit
of service, respond to the request for was not published until after the date PART 299—IMMIGRATION FORMS
reimbursement either by paying the the benefit was first provided to the
reimbursement or by arranging to ■ 10. The authority citation for part 299
immigrant.
commence payments pursuant to a (c) Congressional reports. (1) For continues to read as follows:
payment schedule that is agreeable to purposes of section 213A(i)(3) of the Authority: 8 U.S.C. 1101 and note, 1103; 8
the program official. Act, USCIS will consider a sponsor or CFR part 2.
(v) Prior to filing a lawsuit against a joint sponsor to be in compliance with ■ 11. Section 299.1 is amended in the
sponsor, household member, or joint the financial obligations of section 213A table by revising the entries for Form I–
sponsor to enforce the sponsor, of the Act unless a party that has 864 and Form I–864A, and by adding
household member, or joint sponsor’s obtained a final judgment enforcing the Form I–864EZ and Form I–864W, in
support obligation under section sponsor or joint sponsor’s obligations proper alphanumeric sequence, to read
213A(b)(2) of the Act, a Federal, state, under section 213A(a)(1)(A) or 213A(b) as follows:
or local governmental agency or a of the Act has provided a copy of the
private entity must wait 45 days from final judgment to the USCIS by mailing § 299.1 Prescribed forms.
the date it serves a written request for a certified copy to the address listed in * * * * *
Form No. Edition date Title and description
* * * * * * *
I–864 ............................................................................................ 09/15/2003 Affidavit of support under Section 213A of the Act.
I–864A ......................................................................................... 09/15/2003 Contract between sponsor and household member.
I–864EZ ....................................................................................... 09/15/2003 EZ Affidavit of support under Section 213A of the Act.
I–864W ........................................................................................ 09/15/2003 Intending immigrant’s I–864 exemption.
* * * * * * *
■ 12. Section 299.5 is amended in the 864EZ and Form I–864W, in proper § 299.5 Display of control numbers.
table by revising headings and the alphanumeric sequence, to read as * * * * *

entries for Form I–864, Form I–864A, follows:
and Form I–865, and by adding Form I–
Currently as-
Form No. Form title signed OMB
Control No.
* * * * * * *
I–864 ......................................................... Affidavit of support under Section 213A of the Act ..................................................... 1615–0075
I–864A ....................................................... Contract between sponsor and household member .................................................... 1615–0075
I–864EZ ..................................................... EZ Affidavit of support under Section 213A of the Act ............................................... 1615–0075
I–864W ...................................................... Intending immigrant’s I–864 Exemption ....................................................................... 1615–0075
I–865 ......................................................... Sponsor’s Change of Address ..................................................................................... 1615–0076
* * * * * * *
Department of Justice Authority: 8 U.S.C. 1103, 1182, 1186a, § 1240.34 Renewal of application for
1224, 1225, 1226, 1227, 1251, 1252 note, adjustment of status under section 245 of
8 CFR Chapter V—Authority and Issuance the Act.
1252a, 1252b, 1362; secs. 202 and 203, Pub.
■ Accordingly, for the reasons stated in L. 105–100 (111 Stat. 2160, 2193); sec. 902, * * * In a relevant case, the
the joint preamble and pursuant to the Pub. L. 105–277, (112 Stat. 2681). immigration judge may adjudicate the
authority vested in me as the Attorney sufficiency of an Affidavit of Support
■ 16. Section 1240.11(a)(2) is amended
General of the United States, chapter V Under Section 213A (Form I–864),
by revising the second sentence and
of title 8 of the Code of Federal executed on behalf of an applicant for
Regulations is amended as follows: adding a new sentence at the end, to
admission or for adjustment of status, in
read as follows: accordance with the provisions of
PART 1205—REVOCATION OF section 213A of the Act and 8 CFR part
§ 1240.11 Ancillary matters, applications.
APPROVAL OF PETITIONS 213a.
(a) * * *
■ 13. The authority citation for part ■ 18. Section 1240.49(a) is amended by
1205 continues to read as follows: (2) * * * The immigration judge shall adding after the sixth sentence a new
inform the alien of his or her apparent sentence, to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153,
eligibility to apply for any of the
1154, 1155, 1182, and 1186a. § 1240.49 Ancillary matters, applications.
benefits enumerated in this chapter and
■ 14. Section 1205.1 is amended by shall afford the alien an opportunity to (a) * * * In a relevant case, the
revising paragraph (a)(3)(i)(C) to read as make application during the hearing, in immigration judge may adjudicate the
follows: accordance with the provisions of sufficiency of an Affidavit of Support
§ 1240.8(d). In a relevant case, the Under Section 213A (Form I–864),
§ 1205.1 Automatic revocation. executed on behalf of an applicant for
immigration judge may adjudicate the
(a) * * * sufficiency of an Affidavit of Support admission or for adjustment of status, in
(3) * * * accordance with the provisions of
Under Section 213A (Form I–864),
(i) * * * section 213A of the Act and 8 CFR part
executed on behalf of an applicant for
(C) Upon the death of the petitioner, 213a. * * *
admission or for adjustment of status, in
except as provided for in 8 CFR accordance with the provisions of * * * * *
205.1(a)(3)(i)(C). section 213A of the Act and 8 CFR part Dated: June 13, 2006.
* * * * * 213a. Alberto R. Gonzales,
* * * * * Attorney General.
PART 1240—PROCEEDINGS TO
Dated: April 11, 2006.
DETERMINE REMOVABILITY OF ■ 17. Section 1240.34 is amended by Michael Chertoff,
ALIENS IN THE UNITED STATES adding at the end a new sentence, to
Secretary.
read as follows:
■ 15. The authority citation for part [FR Doc. 06–5522 Filed 6–20–06; 8:45 am]
1240 is revised to read as follows: BILLING CODE 4410–10–P

Rule: Immigration: Affidavits of Support On Behalf of Immigrants

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