Proposed Affidavit of Support Rule Places Heavy Burden on Sponsors

On October 3, 2020, USCIS announced its intention to amend the rules relating to the I-864, Affidavit of Support. This new rule would make it more difficult for petitioning sponsors to establish they meet the requirements to serve as what is commonly referred to as a “financial sponsor.” It will also make it more difficult for petitioning sponsors to locate eligible joint sponsors. Under the current rules, a financial sponsor must meet meet the following requirements and submit the following documents: 

1. The sponsor’s income must be at or above 125% of the federal poverty guidelines; 

2. The sponsor must submit their Federal Form 1040 (Tax Return), along with W-2s and 1099s, for the most recent tax year and disclose their adjusted gross income from the prior two tax years; 

3. Pay stubs from the most recent six months or bank accounts showing income from the most six months if self-employed; and

4. Proof of status in the U.S.

The new proposed rules will impose heavy documentary requirements on sponsors. Under the new rule, sponsors would have to submit extensive documentation, including credit reports, credit scores, tax returns for three years, and extensive banking records. New requirements include, but are not limited to, the following: 

1. Requiring a joint sponsor if the petitioning sponsor received any kind of means tested benefit with the 36 months preceding the application. This would apply even if the petitioning sponsor now makes well over the federal poverty guidelines. For example, if someone received means tested benefits three years before petitioning for a relative but then had two steady years of income well above the federal poverty guidelines, the petitioner would still need a joint sponsor. In this scenario, a joint sponsor would be required even if a petitioning sponsor made over one million dollars a year for the two years preceding the application; 

2. All sponsors would be required to submit a full three years of tax returns or tax transcripts and W-2s and 1099s; 

3. The new rule would limit who can serve as a “household member” for purposes of establishing total household income. DHS is proposing limiting who can be a household member for purposes of total income to spouses of sponsors and, in certain circumstances, the intending immigration. For example, if a mother petitioned for a child and the the petitioning mother and sponsored child also live with an adult sibling, the sibling would no longer be able to serve as a household member for purposes of total income; 

4. Requiring sponsors and household members to submit credit scores and reports; 

5. Require banking information for sponsors and household members; and 

6. DHS would like to lift the requirement that USCIS would need to receive a subpoena from an outside agency before providing an outside agency with a certified copy of the Affidavit of Support. Under the new rule, DHS could provide an outside agency with a full copy of the affidavit and all supporting documents upon a “formal request.” 

In the proposed rule, the government claims that, currently very little is currently required for a sponsor or joint sponsor to show their income is sufficient to sponsor an immigrant. However, as you can see by the requirements listed above in the first enumerated list, this is not correct. Under the current rules, a sponsor must submit a complete copy of their most recent Federal Form 1040 and all supporting schedules, all W-2s and W-9s for the most recent tax year, and six months worth of pay stubs. In situations where applicants need a joint sponsor, the primary complaint we hear is that the potential joint sponsor does not want to disclose so much financial information to the government. By imposing requirements that sponsors submit banking records, credit reports, etc., the administration will make it even more difficult to find a qualified joint sponsor. 

This rule appears to be another attempt to quell lawful immigration without going through Congress for comprehensive immigration reform. If you have questions about how these new rules could impact your case, please contact us.