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Basically, there are two parts to being able to come to the US.
First, you need to qualify for some immigration status or benefit – you must be eligible for one of the many paths to a green card, for one of the many non-immigrant visas types, or for one of several other ways someone can legally come to the US.
Second – and this is where all grounds for inadmissibility come in – there must be nothing which prohibits you from coming to the US: there must be nothing in a person’s background that meets a long list of things that would make the US wish to keep them out (make them “inadmissible” to the US).
On this list of things that might prohibit a person from becoming a permanent resident is something called the “Public Charge” ground of inadmissibility – the idea that if you will need certain kinds of assistance from the government to survive in the US, you shouldn’t be permitted in.
In the context of an employment-based application to enter, normally the salary offered for the position allows the person trying to enter to overcome this ground for inadmissibility.
However for a family-based application – such as an application based on marriage to a US citizen – the petitioner must pledge to provide support. This is done by signing an Affidavit of Support – a binding contract with the US government saying not only that the petitioning relative will provide support to the person being sponsored, but also that the person will reimburse the government for support provided to the sponsored individual. There are actually two different types of “Affidavit of Support,” used in different contexts.
These days, even a valid Affidavit of Support reflecting current income may only be the start of overcoming this issue.
While all family-based petitioners must sign such an agreement, certain requirements must be met for the petitioner’s Affidavit of Support, without more, to overcome the public charge ground. One is that the person signing must be a citizen or permanent resident of the US, domiciled (making their home) in the US. The first part isn’t an issue – they would need to be a citizen or permanent resident to be petitioning to begin with.
However, where the petitioner has been living abroad with the beneficiary, the “domicile” requirement may cause a problem. This can often be overcome by a showing that the petitioner had an immediate intent to return along with the beneficiary. Another – and a very significant – requirement is that an Affidavit of Support needs to reflect sufficient financial means so as to ensure the government that support (or reimbursement to the government for support) can be provided. In most cases, this means that the petitioner needs to show income of 125% of the federal poverty line income for the relevant area for a household the size of the petitioner’s (counted as the petitioner, the person being sponsored, any other dependents of the petitioner, and anyone else that the petitioner has signed an affidavit of support for in the past). In some cases, less than 125% of poverty line is acceptable.
There are actually several possible ways to solve this:
- The petitioner can meet the requirements with assets in lieu of income – assets of three times the required income in the case of a marriage-based permanent residence case filed by a citizen, assets of five times the required amount for any other type of family-based case. Sufficient evidence of the existence of these assets would need to be provided;
- If the person being sponsored is in the US and working, that person can sign a separate form called a “Contract Between Sponsor and with Household Member” to add their income to the petitioner’s income as listed on the Affidavit of Support. In fact, any qualifying member of the petitioner’s household can sign this form and add their income for consideration – they need not be the person being sponsored; or
- Another, separate Affidavit of Support can be completed and signed by a “Joint Sponsor” – some other person living in the US as a US citizen or permanent resident with sufficient income or assets to meet the income requirement for a household of their own household size (which may be larger than that of the petitioner, significantly increasing the required income). This person can be some other family member, but need not be.
Yes, they do – even if the income requirement is actually being met with someone else’s income or assets. This is required so that a government agency later seeking to recoup money spent to support the beneficiary can go after the petitioner as well as any household member or joint sponsor for reimbursement. Just because the petitioner doesn’t have sufficient income or assets now doesn’t mean they won’t in the future.
Not necessarily, though in the past it would have been. Generally, up until the later portion of 2017, a sufficient Affidavit of Support was in itself considered sufficient to deal with this issue.
Policies then began changing to instruct adjudicating officers to look at all circumstances – employability of the applicant (including age and educations/skills), illness, and other factors – in making a determination.
The obligation can end under some circumstances, but not always when you expect it to.
To the surprise of many, a divorce does NOT terminate a support obligation for a person who signed an Affidavit of Support – not for a US citizen or permanent resident spouse petitioner, and not for a joint sponsor. The obligation continues after a divorce until specific circumstances are met.
What circumstances DO end the support obligation under an Affidavit of Support? The following:
- The sponsored foreign national can be credited with 40 qualifying quarters of work (a quarter being equal to three months at four quarters per year) – basically, the equivalent of ten full years of work without interruption for layoff, leave, disability, etc.
- The sponsored foreign national becomes a U.S. citizen;
- The sponsored foreign national departs the U.S. and no longer has permanent residence;
- The sponsored foreign national dies;
- The person signing the Affidavit of Support dies (the estate is responsible for obligations accruing before, but not after, death of the one signing); or
- The sponsored foreign national becomes somehow subject to removal (deportation), and obtains permanent residence again in removal proceedings based on someone else’s Affidavit of Support.