Family sponsorship is one of the most common ways a foreign national can become a permanent resident, or receive a Green Card. The United States allows U.S. citizens or permanent residents to sponsor family members that include children, parents, spouses and siblings – and bring them into the country.
For more information on the specific visas, please see my article on Path to U.S. Citizenship.
Obtaining a visa through family sponsorship will require the sponsoring family member to complete an affidavit of support, which is a declaration of intent to financially support the immigrant family member. An affidavit of support is required because the Immigration and Nationality Act grants the Attorney General the power to deny entrance into the United States if the individual “is likely at any time to become a public charge.” In another context, a sponsoring employer may also be required to submit an affidavit of support for a foreign national if the sponsored foreign national, or the prospective employee, is related to the employer or holds a 5% or more in ownership interest in the entity that filed the visa petition.
Therefore, whether applying to come to the United States or if already here, converting a temporary visa into permanent resident status, a foreign national must demonstrate they will not become a public charge through the filing of an affidavit of support.
What is a Public Charge?
A public charge is an individual who is unable to support himself or herself without financial support from the government in the form of public cash or an individual who is expected to need long-term care facilities.
When determining if an individual will be a public charge, the United States Citizenship and Immigration Services (USCIS) considers 5 factors: 1) age; 2) health; 3) family status; 4) financial assets, resources, and financial status; and 5) education and skills. None of these factors is individually expositive, but rather each factor is viewed in the totality of the circumstances.
(1) Totality of the Circumstances Approach
At the time of the application, the USCIS uses the totality of the circumstances approach to determine if an individual is likely to become a public charge in the future. The USCIS is looking to determine that a foreign national is capable of financially supporting him or herself in the United States upon arrival; therefore no single element is expository.
For example, a younger woman in good health and with some education will not automatically be rejected because she lacks financial assets since the totality of the circumstances may demonstrate she will not be a public charge. Additionally, an older man in poor health would not automatically be rejected if he had family and financial resources to support him while in the United States because those resources may be sufficient to ensure he will not need governmental financial resources.
Under this approach, the government may deny a foreign national if they are going to need public cash or long-term care services.
(2) Public Cash
Public cash is financial assistance paid to individuals for income maintenance. Examples of income maintenance include cash assistance from Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), or state or local general assistance programs. When determining if a foreign national is likely to be a public charge the use of public cash is considered adversely.
Although presently receiving public cash does not make an individual inadmissible, the foreign national must show they have financial assets that will ensure they will not be a public charge in the future. Additionally, public assistance that is used for long-term care will be considered adversely under the totality of the circumstances approach.
However, if an individual had received public cash in the past but they are no longer receiving public cash previous receipt will not hinder their admissibility if they are able to demonstrate they are financially able to support themselves and will not be a public charge in the future. Often foreign nationals are able to demonstrate they will no longer need public cash by submitting an explanation as to how changes in their life will ensure they no longer need financial assistance, for example, increases in education or obtaining a job or promotion.
Benefits that are not income maintenance are not considered as public cash. These benefits include, but are not limited to: Supplemental Nutrition Assistance Program (SNAP), unemployment compensation, job training services, education assistance, or emergency disaster relief. Although some of these benefits involve cash benefits, disbursements of this nature does not supplement income, rather provides relief with the intent of assisting individuals and families out of poverty.
Family sponsorship through an affidavit of support is required to prove financial independence because immigrant family members often lack the financial resources to demonstrate they will not be a public charge,.
Affidavit of Support
An affidavit of support is a legally binding declaration that the sponsoring family member will financially support the immigrant foreign national. Along with an affidavit of support, the sponsoring family member must provide their previous years’ tax returns and proof of employment; failure to provide either will result in a denial. Additionally, the sponsoring family member (or if applicable, a joint sponsor) must be a U.S. citizen or a permanent resident and is at least 18 years old.
The sponsor remains legally responsible for the immigrant family member until they become a U.S. citizen or can be credited with 40 quarters, 10 years, of work. A sponsor is also required to maintain a valid address with the USCIS and failure to report address changes within 30 days may result in a fine.
An affidavit of support is legally enforceable and the sponsoring family member can be required to pay the United States government back for any public cash distributed to the immigrant family member. In addition, to qualify as a sponsor the family member must have sufficient income or assets.
An affidavit of support is legally enforceable even when a U.S. family member and their immigrant spouse get a divorce. Courts have held when the couple divorces, the U.S. citizen is required to provide 125% of the poverty line for a family household of 1, currently set to $14,850 annually at the time of this article, to their former spouse. Financial support would continue to be enforced until the foreign national became a U.S. citizen or could be credited with 40 quarters of work. An attorney may be able to help mitigate this potential risk.
(1) Income Requirement:
A sponsor must show they have a household income equal to or greater than 125% of the U.S. poverty level for a household of their size. Currently, for a family of 4, the household income of the sponsor must be $30,375 or higher per year. When calculating family size the sponsor must include him/herself, other dependents claimed on their tax returns as well as other foreign nationals previously sponsored who have since then received permanent resident status, and the immigrant they wish to sponsor.
If the sponsor is an active member of the Armed Forces of the United States and wishes to sponsor their spouse or children, then their household income must be equal to or greater than 100% of the poverty line for a household of their size. Currently, for a family of 4, the household income of the sponsor must be $24,300 or higher per year.
If the sponsor’s household receives public cash it is not considered in the income calculation, but sole reliance on public cash would make a sponsor ineligible unless they found a joint sponsor for the immigrant family member, or they have sufficient additional financial assets.
(2) Joint Sponsorship
If the foreign national does not have a family member that meets the annual income requirement, they may obtain a joint sponsor. A joint sponsor must satisfy the income requirement on their own; their income may not be combined with the additional joint sponsor. However, unlike the sponsor, a joint sponsor does not have to be related to the foreign national.
(3) Sufficient Financial Assets.
If the sponsor does not earn 125% of the national poverty line for a household of their size – 100% for active military – they may still qualify as a sponsor if they have enough additional financial assets. Additional assets include stocks, bonds, bank accounts, and real property. These additional assets must meet or exceed 5 times the difference between the sponsor’s income and the minimum income requirement for their household size.
For example, a family of 4 needs an annual household income of $30,750. If the annual household income were $25,000, the sponsor would need $28,750 in additional assets; or the difference, $5,750, times 5. (Step 1: $30,750 – $25,000 = $5,750; Step 2: $5,750 * 5 = $28,750)
In addition to the sponsor’s personal income and assets, they may include the assets and income of other members of their household if the member of the household was listed as a dependent on the sponsor’s federal tax return, or the household member has lived with the sponsor for the last 6 months. The additional assets of the household member will be considered when calculating if the sponsor has 5 times the difference between their income and the poverty line for their household size.
Finally, a sponsor may include the assets of the relative immigrant they are sponsoring when calculating if the sponsor has 5 times the difference between their income and the poverty line for their household size.
Changes Under the Trump Administration
Since taking office in January 2017 President Trump has issued a number of executive orders that impact the immigrant community. Additionally, President Trump has a drafted executive order proposing changes to the process of determining if an individual would be a public charge. As of the date of this article this draft has not yet been finalized.
Proposed changes include the reallocation of what services were considered public cash. Currently, housing subsidies and SNAP programs are not considered adversely when the USCIS evaluates a foreign national’s likeliness to become a public charge, but President Trump has suggested reliance on these programs may be viewed adversely in the future.
Changing what is considered adversely under the totality of the circumstances approach could make it more difficult for foreign nationals to obtain family sponsors because a sponsor’s use of SNAP or housing subsidies would be viewed adversely in the family immigrant member’s application. However, joint sponsorship would still provide an avenue bringing family members into the United States.
Updates will be provided if these requirements change under the Trump administration.