On May 23, 2019, President Trump signed a memorandum directing the Secretaries of Agriculture and Health and Human Services to enforce the existing immigration law regarding lawful permanent residence sponsor reimbursement. With this enforcement, the federal government will seek reimbursement from lawful permanent residence sponsors where the sponsored immigrant obtains public benefits.
For any immigrant applying for lawful permanent residence (a green card) due to family ties (family-based immigration), a financial sponsor is required to sign Form I-864, Affidavit of Support. The sponsor is always the person petitioning for the immigrant and may also include an additional joint-sponsor, if one is needed. The sponsor must agree to financially sponsor the immigrant, which includes the following:
- Provide support to the immigrant so that he or her income is at least 125 percent of the Federal Poverty Guidelines for his or her household size;
- Have his or her income and assets considered by the federal government as available to the immigrant when the immigrant applies for certain federal means-tested public benefits and possibly some state or local means-tested public benefits;
- Agree to be sued for support by the immigrant, where support is necessary to reach the threshold stated above; and
- Agree to reimburse the federal government, state, local or private agency for the amount of benefits provided to the immigrant.
Means-tested public benefits currently include food stamps, Supplemental Security Income (SSI), Medicaid, Temporary Assistance for Needy Families (TANF) and State Child Health Insurance Program (CHIP). This agreement is accomplished by the completion and the submission of the Form I-864, Affidavit of Support and would be effective upon the signing of the form and the issuance of lawful permanent residence to the immigrant.
Since 1997, the law has been in place for the federal government and other state, local and private agencies to include a sponsor’s income and assets when evaluating a lawful permanent resident (LPR) for means-tested public benefits and to seek reimbursement from the sponsor of an LPR who has received means-tested public benefits. However, the former is rarely implemented, and the latter has never been enforced by the federal government or any other state, local and private agency.
President Trump’s memorandum seeks to implement two changes to current policies. First, it requires all federal agencies that provide means-tested public benefits to make sure that each agency includes the sponsor’s income and assets as available to the LPR when determining whether the immigrant meets the income and/or asset requirements for the public benefit. Going forward, when an LPR applies for federal means-tested public benefits and the application asks for income and/or assets, the LPR will need to include the sponsor’s income and/or assets as well. Second, President Trump wants all federal agencies that provide means-tested public benefits to lawful permanent residents to seek reimbursement from the LPR’s sponsor.
President Trump’s memorandum establishes a significant change in policy. The memorandum gives the federal agencies 90 days to update and/or put procedures and guidance in place for the enforcement of the income/asset inclusion in public benefits determinations and the reimbursement law. It further provides a directive to provide enforcement officials with the procedures and guidance for notifying sponsors of reimbursement obligations by the end of the fiscal year 2019 (September). It is expected that sponsors could start receiving notifications from the federal government by the end of the year.
So, before signing a Form I-864, Affidavit of Support for an LPR, it is important to understand the legal ramifications of that signature now more than ever, otherwise you may end up with a letter from the federal government asking for reimbursement.
Attorney Paul Messina focuses his practice on all aspects of employment-based, investor-based and family-based immigration law. He has extensive experience in proceedings before United States Citizenship and Immigration Services (USCIS) and the Consular Section of the United States Department of State. He has handled a variety of immigration cases, including employment-based green cards, EB-5 investment-based green cards (direct and through regional centers), and many of the non-immigrant visa/status categories as well as family-based green cards.
Author’s note: The Immigration Corner presents current and relevant topics in immigration law. The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue.