USCIS Increases Oversight and Enforcement of Affidavit of Support ObligationsPosted September 10, 2020 Green Card
On September 10, 2020, the United States Citizenship and Immigration Services (USCIS) launched a “sponsor deeming” and “agency reimbursement” initiative that will enable agencies that administer federal means-tested benefits to ensure more effective compliance with laws that apply when a financial sponsor executes an enforceable Affidavit of Support on behalf of a sponsored immigrant. Federal means-tested public benefits include Medicaid, Children’s Health Insurance Program, Temporary Assistance for Needy Families, Supplemental Nutrition Assistance Program, and Supplemental Security Income.
This sponsorship compliance function stems from the May 23, 2019, Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens, which directed increased oversight and data collection when determining eligibility for federal means-tested benefits and reimbursement requirements as it pertains to sponsored immigrants.
Most family-based and some employment-based applicants for lawful permanent resident (LPR) status must submit Form I-864/Form I-864EZ, Affidavit of Support, through which a sponsor agrees to make his or her income and assets available to support a sponsored immigrant. This support obligation continues until:
- The sponsored immigrant becomes a U.S. citizen;
- The sponsored immigrant has worked or can receive credit for 40 quarters of coverage under the Social Security Act;
- The sponsored immigrant is no longer a lawful permanent resident and has departed the United States;
- The sponsored immigrant is subject to removal, but applies for and obtains, while in removal proceedings, a new grant of adjustment of status based on a new affidavit of support, if one is required;
- The sponsored immigrant dies; or
- The sponsor dies. The sponsor’s estate, however, may still be responsible for the cost of benefits accumulated before the sponsor’s death.
Notably, the support obligation is not dischargeable in bankruptcy nor can it be written away in a prenuptial agreement. Sponsored immigrants have been successful for many years now in suing their financial sponsors for financial support under the Affidavit of Support, despite the fact that it is an enforceable contact between the financial sponsor and the government. Prior to the current administration, agencies that administer federal means-tested benefits have never actually tried to enforce or collect reimbursement for the cost of any means-tested public benefits that have been provided to sponsored immigrants.
Sponsored immigrants may be ineligible for certain federal or state means-tested public benefits because an agency will consider the income and assets of the sponsor (and the sponsor’s household members, if applicable) when determining the immigrant’s eligibility for these benefits. This process is called “deeming.”
As part of the “sponsor deeming” initiative USCIS has launched a new Systematic Alien Verification for Entitlements (SAVE) platform that will make it easier for agencies that administer means federal means-tested benefits to determine whether the requestor is a sponsored immigrant and thus deemed ineligible to receive the benefit requested.
If an agency inadvertently provides a means-tested public benefit to a sponsored immigrant during the period the support obligation is in effect, then the agency or its lawful designee, if any (for example, a collection agency), may ask the sponsor to reimburse the agency for the cost of those means-tested public benefits. If a sponsor does not comply with the terms of the reimbursement request, then the agency can sue the sponsor and obtain a court order for reimbursement.
As part of the “agency reimbursement” initiative, USCIS is encouraging all agencies that administer federal means-tested benefits, to use the new SAVE platform to identify and pursue reimbursement where applicable.
If you are a financial sponsor, are thinking about sponsoring an individual, or are a sponsored immigrant and have questions about how enforcement may affect you, please reach out to your designated Meltzer Hellrung attorney or contact us at firstname.lastname@example.org