Update on public charge, the new affidavit of support & consular processing

On September 30, 1996, the President signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),which, among other changes, provides that an alien is excludable or inadmissible to the United States based upon the likelihood of becoming a public charge if the alien is seeking an immigrant visa, admission as an immigrant, or adjustment of status as: (a) An immediate relative, (b) a family-based immigrant, or (c) an employment-based immigrant (if a sponsoring relative is the petitioning employer or owns a significant ownership interest in the entity that is the petitioning employer), unless the alien is the beneficiary of the new I-864: Affidavit of Support.

The new Affidavit of Support has two ancillary forms, the “Contract Between Sponsor and Household Member” (Form I-864A), and the “Sponsor’s Notice of Change of Address” (Form I-865). INS’s rule included procedural instructions for filling out the forms, and established December 19, 1997 as the effective date on which these forms would be required for submission to immigration and consular officers. The net effect of the new affidavit of support is that it is must be fully executed in order for an alien to immigrate to the U.S.

An Affidavit of Support that has been fully executed and submitted does not, however, automatically establish that the intending immigrant will not be a public charge in the U.S. The ultimate decision on this issue remains vested with the reviewing immigration or consular officer, who must be satisfied that the alien is otherwise not likely to become a public charge upon entering the United States.

The U.S. Department of State (DOS) has clarified that U.S. consulates around the world should not require the new Affidavit of Support, Form I-864, for cases where an applicant had applied for an immigrant visa (i.e., signed the Forms OF-230) before December 19, 1997. The new form will be required for all cases where an OF- 230 is signed on or after December 19, 1997.

Prior to the change in instructions, many applicants who applied before Dec. 19 had already been advised that they must submit the new Form I-864 in order to pursue their cases. The DOS has stated that consulates are not authorized to accept the new Affidavit of Support (Form I-864) from applicants who applied (signed form OF-230) before Dec. 19, 1997. Since the I-864 is now considered a legally binding contract that imposes certain obligations on sponsors and subjects them to potential penalties, it would be inappropriate to use it when not required.

The Department of State in Washington D.C. has advised consulates around the world that Under no circumstances should Form I-864 be included in the Immigrant Visa packet for any applicant who applied before December 19, 1997.

This December 1997 Memorandum modifies the earlier position that the new Form I- 864 is required for any immigrant visa interview conducted on or after December 19, 1997. DOS accepted the position proposed by the American Immigration Lawyers Association that it is not fair to expect the sponsor to sign the new Form I 864 if the applicant had signed the OF-230 several months ago and the date of signing the OF 230 should govern, not the date of the immigrant visa interview at the consulate.

The fourth in a series of cables by the U.S. Department of State regarding the new Affidavit of Support, I-864, addresses the issue of domicile. It spells out that the petitioner, or relative with significant ownership interest in the case of employment- based petition, be domiciled in the United States or its territories and possessions. In some instances, the definition of domicile will disqualify American citizens and legal permanent resident aliens residing abroad from serving as sponsors, with the end result that the applicant will not be able to qualify for an immigrant visa.

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