I have been writing about the Affidavit of Support that is required whenever a person immigrates based on his relationship to a U.S. citizen or lawful permanent resident.    A sponsor (discussed several weeks ago) needs to establish that he can keep the immigrant off welfare.   Today, I want to discuss what are the obligations that a sponsor undertakes.

The purpose of this Affidavit of Support originally was so that if Immigrants would try to sign up for welfare, the welfare department would count the income of the petitioner and deny welfare to the immigrant.   The sole responsibility of the sponsor was to prevent the immigrant from going on welfare — the  sponsor wasn’t actually required to do anything.

However, these affidavits are written broadly.   They state that the government can sue the sponsor if the immigrant gets welfare or other government benefits.  The affidavits even include language stating that the immigrant can sue the sponsor to require him to support her at 125 percent of the poverty level.   And the joint sponsor or household member is equally liable.

Originally, it was disputed as to what this all meant, and who could sue.   It is not clear to me that any of the Federal or state governments have passed the regulations allowing them to sue over this affidavit, but I do not know that for a fact.   President Trump had stated that he would enforce these Affidavits of Support to recoup any welfare-type payments that are paid to or on behalf of the sponsored immigrant — but I don’t believe that any steps were taken in that direction.  In addition, it was originally understood that the immigrant could not sue the sponsor, but over the past twenty years, more and more courts are stating that the immigrant can sue the sponsor for support based on this Affidavit. Again, it is likely that this is true of joint sponsors and household members as well — that they can be sued like sponsors.

There is discussion in the new rule passed by President Trump that it is expected that the sponsor will voluntarily take steps to make sure that the immigrant will not need to go on welfare.    Part of the new requirements is to establish that the sponsor has the intent to support the immigrant if necessary.  There are no clear rules that say that a sponsor actually needs to do that, but the consulates, at least, have started looking for evidence showing that there is a reason to believe that the sponsor not only has the necessary income and assets but also is committed enough to the immigrant to carry through with the promise of support.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Just a reminder, I am writing about the Affidavit of Support that is required whenever a person immigrates based on his relationship to a U.S. citizen or lawful permanent resident.    A sponsor (discussed several weeks ago) needs to establish that he can keep the immigrant off welfare.  The basic requirement is that the sponsor needs to establish that between his income and assets, he can keep the immigrant off of welfare for three years (if the immigrant is a spouse of a US citizen) or five years for all others.

In order to do this, he needs to establish that his U.S. income is at 125% of the poverty level when you add together his family (including all dependents) and the immigrant.   If the sponsor (or joint sponsor) does not have enough income, he can use assets that are in the US or easily brought to the U.S.   The calculations get a little complicated here, so I will try to keep it as simple as possible.   We will assume that the immigrant is the spouse of a U.S. citizen.   The sponsor, if he is unemployed, will need to demonstrate that he has enough assets to equal three years of income at the 125% level.   In other words, if 125% of the poverty level is $50,000, the sponsor will need to demonstrate that he has $150,000 in assets.

If the sponsor has some income, but not enough, he can use assets to supplement his income.  Using the last example — suppose the sponsor had $40,000 of income per year.   He is short $10,000 per year.   Over three years, that will total $30,000.   So, the sponsor will need to demonstrate that he has $30,000 in assets in addition to his $40,000 per year income.

It is important to add that these calculations are not the end of the conversation.   It used to be that 125% of the poverty level is all that you needed to demonstrate.   Under the new rules enacted by President Trump — and still in effect — that is just the minimum.   The USCIS could require more if they felt that 125% of the poverty level will not be enough to ensure that the immigrant will not go on welfare.   The rules state that income at 250% of the poverty level is a much better indication that the immigrant will not need to go on welfare.   Due to this new rule — and the uncertainty that it causes — there really is no clear guide anymore, I encourage people to present as strong an affidavit of support as they can — and, if it is not clearly well above the 125% level, to also have a joint sponsor.   I discussed joint sponsors a few weeks ago.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

As stated in my recent posts, in order to be a sponsor (whether a main sponsor or a joint sponsor) for an Affidavit of Support you need to establish domicile in the U.S.    Remember, an Affidavit of Support is needed whenever a person immigrates based on his relationship to a U.S. citizen or lawful permanent resident.  To be honest, domicile is a slippery concept.   It does not mean,”residence”, which is where your intent to live is.  Domicile is where you actually live (I guess that means you can intend to live in one place and actually live in another).   But it does not automatically mean where you are living — if you can follow that.   Let me give you an example.   Joe goes to Germany for two years.   He keeps his real residence in Pennsylvania with his parents and that is where he has all his financial ties and what he views as home.  Both his residence and his domicile are in Pennsylvania and his stay in Pennsylvania is decidedly temporary, even though it is two years.   Now, same situation, and he still views his parents’ home in Pennsylvania as his permanent home with relationship and financial ties there, but he starts to view Germany as his home away from home — you might say that while his residence is in Pennsylvania, his domicile is in Germany.

This is very important.   If the petitioner (and any joint sponsors) want to file an Affidavit of Support, they need to show that they are domiciled in the US.   If they are living in the US, that is easy to show.    If they are living abroad for more than a relatively short visit, it is a more difficult issue to prove.

One way to prove that your domicile is in the US is to show that you are just temporarily abroad, even if it is for an extended period.  You will want to show proof of a US address and ties to that US address — especially financial ties, but also other ties as well — I often include pictures of my client’s room in the US and pictures of their personal effects that are still at that address.

However, the longer you are out of the country, the harder it is to prove that you are out of the US temporarily.   One way around this situation is to show that you will be returning to the US by proof that there is a job waiting for you in the US.  I also usually include a letter from the people where you will be staying stating that you will be living with them.  It is even better if you can get a lease — but getting a lease and a job offer can be very difficult when you don’t know how long it will be until you come to the US.

A final option is for M-ssionaries only.   There is a sort of exception for M-ssionary workers abroad.  I say “sort of” because they still need to prove that they are abroad “temporarily” which is the same as what I discussed above.   However, the advantage is that historically, there is sort of an assumption that m-ssionaries maintain their residence (and domicile) in the US and are on the “field” only temporarily.   However, since the Consulates don’t always properly apply this rule, I always provide as much evidence of ties to the US as I can.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong