[Federal Register Volume 71, Number 119 (Wednesday, June 21, 2006)]
[Rules and Regulations]
[Pages 35732-35757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5522]



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Part II





Department of Homeland Security





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U.S. Citizenship and Immigration Services



8 CFR Parts 204, 205, 213a and 299



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Department of Justice





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Executive Office for Immigration Review

8 CFR Parts 1205 and 1240



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Affidavits of Support on Behalf of Immigrants; Final Rule

  Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 / 
Rules and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Parts 204, 205, 213a and 299

[DHS 2004-0026; CIS No. 1807-96]
RIN 1615-AB45

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1205 and 1240

[EOIR No. 150F; AG Order No. 2824-2006]
RIN 1125-AA54


Affidavits of Support on Behalf of Immigrants

AGENCIES: U.S. Citizenship and Immigration Services, Department of 
Homeland Security; Executive Office for Immigration Review, Department 
of Justice.

ACTION: Final rule.

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SUMMARY: This final rule adopts, with specified changes, an interim 
rule published by the former Immigration and Naturalization Service on 
October 20, 1997. This final rule clarifies several issues raised under 
the interim rule regarding who needs an affidavit of support, how 
sponsors qualify, what information and documentation they must present, 
and when the income of other persons may be used to support an 
intending immigrant's application for permanent residence. These 
changes are intended to make the affidavit of support process clearer 
and less intimidating and time-consuming for sponsors, while continuing 
to ensure that sponsors will have sufficient means available to support 
new immigrants when necessary. The final rule also makes clear that, 
when an alien applies for adjustment of status in removal proceedings, 
the immigration judge's jurisdiction to adjudicate the adjustment 
application includes authority to adjudicate the sufficiency of the 
affidavit of support.

DATES: This final rule is effective July 21, 2006.

FOR FURTHER INFORMATION CONTACT: Concerning amendments made by this 
Final Rule to 8 CFR parts 204, 205, 213A and 299: Jonathan Mills, 
Immigrant Program Management Branch, Office of Regulations and Product 
Management, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 111 Massachusetts Avenue, NW., Room 3214, 
Washington, DC 20529; telephone (202) 272-8530 (not a toll free call); 
or Lisa S. Roney, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Ave, NW., Room 4062, Washington, DC 20529; telephone (202) 272-1470 
(not a toll free call).
    Concerning amendments made by this Final Rule to 8 CFR parts 1205 
and 1240: MaryBeth Keller, General Counsel, Executive Office for 
Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, 
Virginia 22041; telephone (703) 305-0470 (not a toll free call).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. The Interim Rule
    B. Synopsis of the Final Rule
II. Description of and Response to Comments
    A. Employment Sponsored Immigrants
    B. Effect of an intending immigrant's Work History
    C. Effect of the Child Citizenship Act of 2000 on the Affidavit 
of Support Requirement
    D. Definition of ``Domicile''
    E. Sponsors Under the Age of 18
    F. Joint Sponsors
    G. Effect of the Visa Petitioner's Death
    H. Other Sponsorship Requirements
    I. Orphan Cases
    J. Miscellaneous Comments
    K. Children Who Immigrate Under Section 211(a) of the Act
    L. Role of the Immigration Judges
    M. Additional Changes to Department of Justice Rules
III. Regulatory Analysis
    A. Regulatory Flexibility Act
    B. Unfunded Mandates Reform Act
    C. Administrative Procedure Act
    D. Assessment of Regulatory Impact on the Family
    E. Paperwork Reduction Act
    F. Executive Order 12866
    G. Executive Order 13132
    H. Executive Order 12988 Civil Justice Reform

I. Background

    Section 531(a) of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Division C, 
amended section 212(a)(4) of the Immigration and Nationality Act (Act) 
to provide that an alien is inadmissible as an alien likely to become 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 relative of the alien is the petitioning employer or has a 
significant ownership interest in the entity that is the petitioning 
employer. Sections 212(a)(4)(C)-(D) and 213A of the Act, 8 U.S.C. 
1182(a)(4)(C)-(D) and 1183a. To avoid a finding of inadmissibility as a 
public charge, the alien must be the beneficiary of an affidavit of 
support filed under section 213A of the Act, 8 U.S.C. 1183a. Section 
213A of the Act specifies the conditions that must be met in order for 
an affidavit of support to be sufficient to overcome the public charge 
inadmissibility ground.

A. The Interim Rule

    The former Immigration and Naturalization Service (Service) 
published an interim rule implementing these requirements in the 
Federal Register on October 20, 1997, at 62 FR 54346. The interim rule 
adopted 8 CFR part 213A, defining the procedures for submitting 
affidavits of support under section 213A of the Act, defining a 
sponsor's ongoing obligations under the affidavit of support, and 
specifying the procedures that Federal, State, or local agencies or 
private entities must follow to seek reimbursement from the sponsor for 
provision of means-tested public benefits. In conjunction with the 
interim rule, the Service also created three new public use forms: Form 
I-864, Affidavit of Support Under Section 213A of the Act; Form I-864A, 
Contract Between Sponsor and Household Member; and Form I-865, 
Sponsor's Notice of Change of Address. The interim rule was effective 
on December 19, 1997.
    On March 1, 2003, the Service ceased to exist and its functions 
were transferred from the Department of Justice to the Department of 
Homeland Security (DHS), pursuant to the Homeland Security Act of 2002, 
Public Law 107-296. The Secretary of Homeland Security is the issuing 
authority for most of the provisions of this final rule, since the 
Homeland Security Act transferred immigration services functions to 
U.S. Citizenship and Immigration Services (USCIS) of DHS. The Attorney 
General, however, continues to have authority relating to the Executive 
Office for Immigration Review. The Attorney General, therefore, is the 
issuing authority for the provisions of this final rule that relate to 
the jurisdiction of the immigration judges.

B. Synopsis of the Final Rule

    This current rulemaking adopts the interim rule as a final rule, 
with the changes discussed in this Supplementary Information. The 
changes reflect the response of USCIS and the Department of Justice to 
the comments received relating to the

[[Page 35733]]

interim rule. USCIS also notes that it has adopted two additional 
public use forms to comply with the requirements of the final rule. 
USCIS designed Form I-864EZ, EZ Affidavit of Support, for use by a 
sponsor who relies only on his or her own employment to meet the income 
requirements under section 213A of the Act and the final rule. An 
intending immigrant uses Form I-864W, Intending Immigrant's I-864 
Exemption, to establish that a Form I-864 is not required in his or her 
case. More information about these new Forms is included in the section 
of this Supplementary Information relating to the Paperwork Reduction 
Act. Also, pursuant to section 213A(i) of the Act, the final rule makes 
clear that USCIS may disclose a sponsor's social security number, as 
well as the sponsor's last known address, to a benefit granting agency 
seeking to obtain reimbursement from the sponsor.

II. Description of and Response to Comments

    The comment period ended on February 17, 1998. The Service received 
117 comments that were submitted during the comment period. USCIS and 
DOJ have considered these comments in formulating the final rules.
    The following is a discussion of the comments and USCIS's 
responses.

A. Employment Sponsored Immigrants

Definition of ``Significant Ownership Interest''
    Sections 212(a)(4)(D) and 213A(f)(4) of the Act and 8 CFR 
213a.2(b)(2) require the submission of Form I-864 in the case of an 
employment-based immigrant if a relative of the immigrant either filed 
the visa petition or has a ``significant ownership interest'' in the 
entity that did so. The interim regulation, at 8 CFR 213a.1, defined 
``significant ownership interest'' as an ownership interest of five 
percent or more in a for-profit entity. Nine commenters (with 51 
signers) believe that this five percent threshold is too low. One 
commenter, for example, argued that a five percent interest cannot be 
considered ``significant'' because ``no ability to control or even 
influence [the entity] can result from such a low level of ownership.'' 
These commenters believe that an affidavit of support should not be 
required unless the relative owns at least 50 percent of the 
petitioning entity. They based this suggestion on the Department of 
State's determination in the Foreign Affairs Manual that a treaty 
investor must own at least 50 percent of the entity in order to meet 
the ``substantial investment'' requirement for treaty investor visas. 
See Foreign Affairs Manual, Volume 9, Sec. 41.51, note 3.1 to 22 CFR 
41.51.
    The final rule retains the five percent threshold adopted in the 
interim rule. In accordance with the authorities cited in the 
supplemental information to the interim rule, at 62 FR 54347, USCIS 
believes that the term ``significant ownership interest'' had a well-
settled meaning in Federal statutes and regulations when Congress 
included the term in sections 212(a)(4)(D) and 213A(f)(4) of the Act. 
The commenters' observation that these definitions are in ``unrelated'' 
statutes is not persuasive, since it is the meaning of the term itself 
that is at issue. In the absence of the enactment of a different 
definition of ``significant ownership interest,'' there is no clear 
basis for adopting a different definition for section 213A of the Act.
Citizenship or Resident Alien Status of the Relative-Employer
    Three commenters asked whether the affidavit of support requirement 
will apply to employment-based immigrants if the relative with the 
significant ownership interest is not a United States citizen or 
resident alien. For employment-based immigrants, the purpose of the 
affidavit of support is to ensure that a relative who could file a 
family-based visa petition will not use employment as a means to avoid 
the affidavit of support requirement that would apply if the relative 
were to file an alien relative visa petition. Relatives who are not 
U.S. citizens or resident aliens are ineligible to file alien relative 
visa petitions. For this reason, 8 CFR 213a.1 defines ``relative,'' for 
purposes of the affidavit of support requirement, to include only those 
family members who can file alien relative visa petitions. The final 
rule clarifies that a relative must be either a U.S. citizen or a 
resident alien in order for the affidavit of support requirement to 
apply to an employment-based immigrant.

B. Effect of an Intending Immigrant's Work History

    Under section 213A(a)(3)(A) of the Act, all of a sponsor's 
obligations under the affidavit of support end once the intending 
immigrant has worked, or can be credited with, 40 qualifying quarters 
of coverage as defined under title II of the Social Security Act, 42 
U.S.C. 401 et seq. One comment (with 21 signatures) suggested that the 
affidavit of support requirement should not apply at all if, when the 
intending immigrant seeks an immigrant visa or adjustment of status, 
the intending immigrant can already meet this requirement. This comment 
is well-taken. If the intending immigrant can establish, on the basis 
of the records of the Social Security Administration, that he or she 
already has, or can be credited with, the necessary quarters of 
coverage, requiring the Form I-864 would serve no real purpose--the 
sponsor's obligations would terminate as soon as they arose. The final 
rule therefore adopts this suggestion.

C. Effect of the Child Citizenship Act of 2000 on the Affidavit of 
Support Requirement

    On October 30, 2000, President Clinton signed into law the Child 
Citizenship Act of 2000, Public Law 106-395, 114 Stat. 1631. Section 
101 of Public Law 106-395 amended section 320 of the Act, effective 
February 27, 2001. Under this amendment, the alien child of a citizen 
becomes a citizen automatically under section 320 of the Act if, before 
the child's 18th birthday, the child is lawfully admitted for permanent 
residence while in the legal and physical custody of a citizen parent 
and while residing with the citizen parent in the United States. It is 
likely that most alien children of citizens will acquire citizenship at 
the same moment as their admission for permanent residence.
    Because the requirements under the affidavit of support end when 
the sponsored immigrant becomes a citizen, USCIS concludes that 
imposing the affidavit of support requirement in these cases would be 
needless. Therefore, the final rule provides that no Form I-864 is 
required if the alien establishes that he or she will acquire 
citizenship automatically under section 320, as amended, upon his or 
her admission or adjustment of status. Note, however, that this final 
rule excuses the immigrant children of citizens from the requirement of 
filing a Form I-864 only. In a given case, it may still be that, in 
light of the general factors specified in section 212(a)(4)(B) of the 
Act--the alien's age, health, family status, assets, resources and 
financial status, education and skills--an immigrant child of a citizen 
would be inadmissible under section 212(a)(4)(A) of the Act as an alien 
likely to become a public charge. DHS does not consider it likely for 
this issue to arise in many cases, however. Under the amended section 
320, most adopted children will acquire citizenship upon their 
admission to the United States or soon thereafter. Even a child with a 
serious medical condition, therefore, would most likely be a citizen 
before the child would become dependent on public assistance as a 
result of the condition.
    The Child Citizenship Act applies to adopted children and alien 
orphans, as

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well as to birth children. Note, however, that amended section 320 of 
the Act requires the child to be in the legal and physical custody of a 
citizen parent in order for the child to acquire citizenship upon 
admission as a permanent resident. If the citizen parent, residing in 
the United States, adopts an alien orphan abroad, and both parents saw 
the child before or during the adoption, then the legal parent-child 
relationship will already exist for immigration purposes when the alien 
orphan is admitted to the United States as a permanent resident. If all 
the other requirements of section 320 of the Act are met, the alien 
orphan will become a citizen at admission. If, however, the alien 
orphan is to be adopted in the United States only after admission, then 
the alien orphan will not become a citizen until the adoption is 
finalized. The citizen parent will therefore have to sign a Form I-864. 
A Form I-864 will also be required of the citizen parent when there is 
a completed foreign adoption, but one or both of the parents did not 
see the child before or during the adoption, unless the citizen parent 
can establish that, under the law of the State of the child's proposed 
residence, the foreign adoption will be entitled to recognition without 
the need for any formal administrative or judicial proceeding in that 
State.
    The petitioning citizen parent must still submit a sufficient Form 
I-864 if the child immigrates after the child's 18th birthday, and also 
if the child immigrates before the child's 18th birthday, but the child 
is no longer a ``child'' as defined in section 101(b)(1) of the Act 
because the child is married.

D. Definition of ``Domicile''

    Eight comments questioned the definition of ``domicile.'' Several 
commenters objected that, because of the way the interim rule defined 
``domicile,'' it would preclude citizens and resident aliens who are 
domiciled abroad from filing affidavits of support. It is true that 
those who are not domiciled in the United States may not file 
affidavits of support until they establish domiciles in the United 
States. This result is clearly what Congress intended in imposing the 
domicile requirement. An agreement to submit to the jurisdiction of a 
court in the United States, suggested by three comments, cannot 
substitute for this clear statutory requirement.
    It appears that the commenters may have misunderstood the scope of 
the definition. In particular, in 1997 the Service did not intend, and 
USCIS does not now intend, the reference to sections 316(b), 317, and 
319(b) of the Act to exhaust the situations in which a person 
sojourning abroad may be said to retain a domicile in the United 
States. The final rule revises the definition to tie ``domicile'' to 
the sponsor's principal residence. The final rule also clarifies that a 
person residing temporarily abroad may file an affidavit of support if 
he or she can show, by a preponderance of the evidence, that he or she 
still has a domicile in the United States. To avoid confusion, the 
final rule makes this clarification in a new 8 CFR 213a.2(c)(1)(ii), 
rather than in the definition itself.
    The final rule does provide in section 213a.2(c)(1)(ii) a single 
exception, under which a sponsor who is not domiciled in the United 
States (i.e., cannot show his or her residence abroad has been only 
temporary) may submit a Form I-864. The sponsor may do so only if the 
sponsor establishes, by a preponderance of the evidence, that the 
sponsor will have established his or her domicile in the United States 
no later than the date of the intending immigrant's admission or 
adjustment of status. The intending immigrant will, however, be 
inadmissible as an alien likely to become a public charge if the 
sponsor has not actually become domiciled in the United States by the 
date of the decision on the intending immigrant's application for 
admission or adjustment of status. Thus, the sponsor must arrive in the 
United States before, or at the same time as, the intending immigrant, 
and the sponsor must intend to establish his or her domicile in the 
United States.

E. Sponsors Under the Age of 18

    Four commenters objected to the requirement that the sponsor must 
be at least 18 years old. They noted that this requirement will mean 
that a citizen or resident alien spouse who does not meet the age 
requirement cannot file an affidavit of support on behalf of the spouse 
seeking to immigrate. Similarly, a parent who is under 18 years old 
could not do so for his or her alien children. Congress set the age 
limit in section 213A(f)(1)(B) of the Act. USCIS cannot change the age 
limit in the regulations unless Congress amends section 213A of the 
Act. If the sponsor or joint sponsor was not 18 when he or she signed a 
Form I-864, the signature will have no legal effect under section 213A 
of the Act. Rather than requiring rejection of the Form I-864, however, 
the final rule provides that, to cure the improper filing, the sponsor 
or joint sponsor must sign it again on or after his or her 18th 
birthday before there can be a decision on the intending immigrant's 
application for an immigrant visa or adjustment of status.

F. Joint Sponsors

    Four commenters argued that the joint sponsorship provision is too 
restrictive to provide a practical alternative. One of these 
commenters, in particular, suggested that the sponsor and joint sponsor 
should be able to ``pool'' their income, that is, that the joint 
sponsor should only be required to make up the difference between the 
sponsor's income and the income threshold. However, sections 213A(f)(2) 
and (5) of the Act permit a joint sponsor only in one specified 
situation: when the sponsor's income is not sufficient. The joint 
sponsor, according to section 213A(f)(5) of the Act, must be able to 
meet the income threshold. For this reason, the final rule cannot, and 
does not, adopt the suggestion that, like the household members, the 
sponsor and joint sponsor should be able to ``pool'' their income.
    One comment suggested that a joint sponsor should be allowed if the 
visa petitioner is under 18. Sections 213A(f)(2) and (5) of the Act 
provide the only statutory basis for joint sponsors, and allow for a 
joint sponsor only if the sponsor's income is not sufficient. There is 
no similar provision for cases involving sponsors who are not at least 
18, or who are not domiciled in the United States.
    One of the eight commenters on the domicile issue discussed earlier 
suggested that the regulation should permit a joint sponsor if the visa 
petitioner cannot meet the domicile requirement. But sections 
213A(f)(2) and (5) of the Act provide the only statutory basis for 
joint sponsors, and allow for a joint sponsor only if the principal 
sponsor's income is not sufficient. If the person who is required to be 
the sponsor is not domiciled in the United States, and, as noted 
earlier in the discussion of domicile, does not intend to establish a 
domicile in the United States, then there is no one who has standing to 
sign an affidavit of support on behalf of the intending immigrant.
    The final rule also makes clear that an intending immigrant may not 
have more than one joint sponsor, in addition to the principal sponsor. 
This clarification is consistent with the statement of managers 
accompanying IIRIRA with respect to section 213A, which clearly 
indicates that the managers did not consider it appropriate to permit a 
second joint sponsor if the joint sponsor's income was not sufficient. 
H. Rep. No. 104-828 at 242 (1996). It is not necessary, however, for 
all the derivative beneficiaries of a visa petition to have the same 
joint sponsor as the

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principal beneficiary. For example, suppose the principal beneficiary 
has a wife and four children who will accompany the principal 
beneficiary to the United States. It may be the case that a willing 
joint sponsor would have sufficient income to file an affidavit of 
support for the husband and wife and only one of the children. The 
final rule would permit the joint sponsor to accept responsibility only 
for those three aliens, and would allow a second joint sponsor to file 
an affidavit of support for the other three children. Each joint 
sponsor would then be responsible only for those aliens named in that 
joint sponsor's own Form I-864. The principal intending immigrant and 
the accompanying spouse and children, as a group, however, may not have 
more than two joint sponsors.

G. Effect of the Visa Petitioner's Death

    Seven commenters suggested that a joint sponsor should be permitted 
if the visa petitioner dies before the visa petition is approved, and 
the beneficiary has obtained ``relief from revocation'' under 8 CFR 
205.1(a)(3)(i)(C). There is no authority to approve a visa petition 
after the petitioner dies. See Abboud v. INS, 140 F.3d 843 (9th Cir. 
1998); Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993); Matter of Varela, 13 
I. & N. Dec. 453 (BIA 1970). If the petitioner dies before approval of 
the visa petition, there is no basis for approving the visa petition.
    The legal situation is different if the visa petitioner dies after 
approval of the visa petition. Section 205 of the Act authorizes 
revocation of approval of a visa petition for ``good and sufficient 
cause.'' The related regulation, 8 CFR 205.1(a)(3)(i)(C), provides that 
the petitioner's death automatically revokes approval of a family-based 
immigrant petition. This same regulation, however, allows the approval 
to remain in force if USCIS, in the exercise of discretion, 
``determines that for humanitarian reasons revocation would be 
inappropriate.'' 8 CFR 205.1(a)(3)(i)(C).
    Reinstatement of approval of the visa petition does not waive the 
affidavit of support requirements under section 213A of the Act. 
However, on March 13, 2002, the Family Sponsor Immigration Act, Public 
Law 107-150, 116 Stat. 74, was enacted. Public Law 107-150 amended 
section 213A(f)(5) of the Act to permit another relative to sign the 
affidavit of support if the petitioner dies after the visa petition is 
approved, where it is determined that revoking the approval would not 
be appropriate. This final rule incorporates the provisions of section 
213A(f)(5)(B), as amended by Public Law 107-150. A substitute sponsor 
must be either a citizen or national, or else an alien lawfully 
admitted for permanent residence. The substitute sponsor must also be 
at least 18 years of age, and must have a domicile in the United 
States. If USCIS allows the approval of the visa petition to stand, 
then the sponsored alien's spouse, parent, mother-in-law, father-in-
law, sibling, child (if at least 18 years of age), son, daughter, son-
in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, 
grandchild, or a legal guardian may sign the affidavit of support.
    The final rule also adopts a special rule for cases in which the 
alien beneficiary was, before the petitioner's death, the spouse of a 
citizen. Under section 201(b)(2)(A)(i) of the Act, if an alien was 
married to a citizen for at least 2 years at the time of the citizen's 
death, the alien may file a petition on his or her own behalf, so long 
as the alien does so within 2 years of the citizen's death, and has not 
remarried. Section 212(a)(4)(C)(i)(I) of the Act, in turn, relieves 
that alien of the affidavit of support requirement, once USCIS approves 
the new petition. The final rule provides that it will not be necessary 
for the beneficiary to file a new petition (Form I-360, Petition for 
Amerasian, Widow(er), or Special Immigrant) as the widow(er) of a 
citizen. Instead, the final rule provides for automatic conversion of 
the citizen's spousal Form I-130, Petition for Alien Relative, to a 
widow(er)'s petition upon the citizen's death if, on that date, the 
widow(er) meets the requirements of section 201(b)(2)(A)(I) of the Act 
as it relates to widow(er)'s petitions. This automatic conversion will 
apply whether the citizen spouse dies before or after approval of the 
Form I-130. Since the alien spouse will then immigrate as the widow(er) 
of a citizen, it will not be necessary to submit a Form I-864 from a 
substitute sponsor.
    The final rule retains the provision of the interim rule that 
permits a joint sponsor if the visa petitioner dies after the principal 
beneficiary has immigrated, but before a family member entitled to 
``follow to join'' the principal beneficiary immigrates. (``Following 
to join'' permits spouses and children of an alien to obtain the status 
nonimmigrant visa or immigrant visa and priority date of the principal 
alien.) The final rule, however, conforms the provision to the 
requirements of the Family Sponsor Immigration Act. That is to say, the 
substitute sponsor must be a citizen, national, or permanent resident 
alien, at least 18 years of age, and related to the new intending 
immigrant in at least one of the ways described in section 
213A(f)(5)(B) of the Act, as amended by Public Law 107-150.

H. Other Sponsorship Requirements

    Section 213A(f)(1)(D) of the Act provides that the sponsor must be 
the person ``petitioning for the admission of the alien under section 
204'' of the Act. The interim rule, in 8 CFR 213a.2(b)(1), made clear 
that the sponsor must be the visa petitioner whose petition is the 
actual basis for the intending immigrant's eligibility to apply for the 
immigrant visa or adjustment of status. One commenter noted that an 
alien may be the beneficiary of more than one approved visa petition, 
filed by several relatives. This commenter believes that any one of 
these petitioners should be able to be the sponsor. For example, if the 
intending immigrant applies for a visa as an immediate relative, on the 
basis of his wife's visa petition, but his mother also filed a third 
family-based preference petition, then his mother, instead of his wife, 
should be able to be the sponsor.
    This comment cannot be adopted. The reference in section 
213A(f)(1)(D) of the Act to section 204 of the Act can most reasonably 
be taken to mean that Congress anticipated that the sponsor would be 
the same person whose visa petition has made the intending immigrant's 
application for an immigrant visa or for adjustment of status currently 
possible. If the mother in this example is going to be the sponsor, 
then the alien will have to wait until the priority date for her 
petition is reached. The mother may, of course, choose to be a joint 
sponsor if the visa petitioner/sponsor cannot meet the income 
threshold.
Proof of Sponsor's Social Security Number, Citizenship, and Residence
    One commenter suggested that every sponsor should have to prove his 
or her citizenship, residence, and Social Security number. It is not 
necessary to incorporate this suggestion into the final rule. USCIS 
already verifies the citizenship or resident alien status of those who 
file alien relative visa petitions. Moreover, the general authority to 
gather evidence concerning an alien's eligibility to enter the United 
States, granted under section 287(b) of the Act, is a sufficient basis 
for USCIS to require additional evidence concerning these issues. Such 
evidence may include verification of a sponsor's Social Security 
number, especially when there is a reasonable basis to question the 
sponsor's identity or eligibility to sign the Form I-864. A joint 
sponsor, however, will have to

[[Page 35736]]

prove his or her eligibility to be a joint sponsor.
Nonimmigrant Fiance(e)s
    Another commenter asked for clarification that the nonimmigrant 
fiance(e) of a citizen does not need a Form I-864 when the fiance(e) 
comes to the United States as a K-1 nonimmigrant fiance(e) under 
section 101(a)(15)(K) of the Act to marry the citizen. This is correct. 
A K-1 nonimmigrant fiance(e), however, is admitted for only 90 days. 
The lawful status of the K-1 nonimmigrant fiance(e), and any 
accompanying child admitted as a K-2 nonimmigrant, ends unless, within 
this 90-day period, the K-1 nonimmigrant fiance(e) marries the citizen 
who filed the K-1 nonimmigrant visa petition. After the marriage, the 
K-1 nonimmigrant fiance(e) and any accompanying children admitted as K-
2 nonimmigrants must then apply for adjustment to permanent resident 
status. Sections 201(b)(2)(A)(i) and 245(d) of the Act make it clear 
that, when an alien who has been admitted as a K-1 nonimmigrant 
fiance(e), and any accompanying child admitted as a K-2 nonimmigrant, 
applies for adjustment of status, he or she does so as an immediate 
relative. Since the K nonimmigrant adjusts as an immediate relative, 
sections 212(a)(4) and 213A make the nonimmigrant inadmissible unless 
the citizen spouse files a Form I-864 for both the K-1 nonimmigrant 
fiance(e) and any accompanying children admitted as K-2 nonimmigrants.
    This commenter also believed that Forms I-864 should be required 
for other nonimmigrants, such as students and the family members of 
students and nonimmigrants in work-related classifications. Section 
213A of the Act, however, clearly applies only to certain immigrants. 
There is no basis in section 213A of the Act for adopting this comment.
Continued Use of the Form I-134, Affidavit of Support
    The interim rule clarified in 8 CFR 213a.5 that the regulations 
relating to the use of Forms I-864, I-864A, and I-865 do not apply to 
other situations where immigration or consular officers have permitted 
the use of Form I-134. The Form I-134 is the long-used affidavit of 
support that, as several State courts have held, does not impose an 
obligation that could be enforced against the sponsor by lawsuit. San 
Diego County v. Viloria, 276 Cal. App. 2d 350, 80 Cal. Rptr 869 (Cal. 
App. 1969); Michigan ex rel. Attorney General v. Binder, 356 Mich. 73, 
96 N.W. 2d 140 (Mich. 1959); California Dept. Mental Hygiene v. Renel, 
10 Misc.2d 402, 173 N.Y.S. 2d 231 (N.Y. App. Div. 1958). Seven 
commenters asked for clarification of the situations when Form I-134 
may be used. The discretion concerning use of Form I-134 has long been 
quite broad. The sole purpose of 8 CFR 213a.5 is to retain that broad 
discretion. For this reason, the final rule makes no change to 8 CFR 
213a.5.
Definitions of ``Household Size'' and ``Household Income''
    Numerous comments were received concerning the definitions of 
``household size'' and ``household income'' and the use of the Form I-
864A.
    In general, these commenters believed that ``household size'' was 
defined too broadly, since all related people at the same residence 
would be considered in the household, even if they were, in fact, 
separate economic ``households.'' These comments are well-founded. The 
final rule, therefore, provides for flexibility in the definition of 
``household size.''
    In all cases, the sponsor must include in calculating the 
``household size'' the sponsor, his wife or her husband, the sponsor's 
unmarried children under the age of 21 (other than a step-child who 
meets the requirements of section 101(b)(1)(B) of the Act but who is 
not part of the sponsor's household, is not claimed as a dependent by 
the sponsor for tax purposes, and is not seeking to immigrate based on 
the step-parent/step-child relationship), and any other person--whether 
related to the sponsor or not--claimed as a dependent on the sponsor's 
income tax returns. The sponsor must include his or her spouse and all 
persons claimed as dependents for tax purposes, even if these persons 
do not actually have the same principal residence as the sponsor. The 
sponsor may exclude any unmarried children under 21 if these children 
have reached majority under the law of the place of domicile and the 
sponsor does not claim them as dependents on the sponsor's income tax 
returns.
    If, in fact, the household consists of a more extended family, the 
sponsor may elect to include other relatives in determining the 
``household size.'' Under this alternative, the sponsor may then 
include in the calculation of household size any relative of the 
sponsor who has the same principal residence as the sponsor. In 
determining the household size, ``relative'' has the same meaning as 
for the affidavit of support regulation as a whole--that is, in 
addition to the spouse, unmarried children under 21, and any other 
persons legally claimed as dependents, the sponsor may include his or 
her father, mother, adult son, adult daughter, brother, or sister. The 
final rule removes the interim rule's requirement that the household 
member must have resided in the sponsor's household for at least six 
months in order to sign a Form I-864A. The final rule also clarifies, 
as requested by three commenters, that no person should be counted more 
than once in determining the size of the household.
    The definition of ``household income'' is revised to correspond to 
the revised definition of ``household size.'' In determining the 
``household income'' the sponsor may include the income of any other 
persons included in calculating the ``household size,'' but these other 
persons, including the sponsor's spouse or children (who must be at 
least 18 years old), must still sign Form I-864A in order for the 
sponsor to use this option. The final rule retains the Form I-864A 
requirement to ensure that the family member's promise of support is 
enforceable. As with the sponsor's spouse and dependents, the income of 
these other relatives in the residence may be ``pooled'' to determine 
the household income. In response to one comment, the final rule 
clarifies that a person included in calculating ``household income'' 
must be at least 18 years old to sign a Form I-864A.
Intending Immigrant as Part of the Sponsor's Household
    Two commenters argued that the intending immigrant and his or her 
family should not be considered in determining the sponsor's 
``household size'' for purposes of the affidavit of support. Section 
213A(f)(6)(A)(iii) of the Act clearly requires the sponsor's income to 
meet the income threshold ``for a family unit of a size equal to the 
number of members of the sponsor's household * * * plus the total 
number of * * * aliens sponsored by that sponsor.'' Consequently, the 
sponsor must continue to include the intending immigrants in 
calculating the ``household size,'' and must also include any other 
immigrants sponsored under any other Form I-864 if the sponsor's 
obligation is still in effect.
Sponsor's Reliance on the Intending Immigrant's Income
    One commenter suggested that the intending immigrant's own income 
should never be considered in determining the household income, and 
that section 213A(f)(6)(A)(ii) of the Act permits consideration of the 
intending immigrant's assets, but not his or her income. The commenter 
also observed

[[Page 35737]]

that ``most'' intending immigrants will be giving up their jobs abroad, 
and so will no longer have that income. Many immigrants, however, 
acquire permanent residence through adjustment of status after working 
lawfully in the United States. Some intending immigrants work in the 
United States as nonimmigrants, and then go abroad and return with 
immigrant visas. Other intending immigrants may obtain transfers, so 
that they work in the United States for the same employer as abroad, or 
may have investments or other lawful sources of income that will 
continue to be available. The intending immigrant, moreover, is 
considered in calculating the sponsor's household size, and it is the 
income of the household that determines whether the sponsor can satisfy 
the income threshold.
    The final rule, therefore, clarifies that the sponsor may rely on 
the intending immigrant's income if the intending immigrant is either 
the sponsor's spouse or has the same principal residence as the sponsor 
and can show by a preponderance of the evidence that the intending 
immigrant's income will continue, after acquisition of permanent 
residence, from the same source (such as lawful employment with the 
same employer or some other lawful source). The prospect or offer of 
employment in the United States that has not yet actually begun will 
not be sufficient to meet this requirement.
Who Must Sign the Form I-864
    On a similar theme, one commenter asked whether the intending 
immigrant can sign the Form I-864 if the intending immigrant's own 
resources will be the chief basis for the sufficiency of the Form I-
864. The commenter's example is a 22-year-old student, of meager 
resources, who has filed a Form I-130 for her father, who is 
independently wealthy.
    Section 213A(f)(6)(A)(ii) of the Act provides that the sponsor may 
rely on the intending immigrant's assets. However, sections 
212(a)(4)(C) and 213A(f)(1) of the Act make it clear that the daughter, 
not the father, must sign and file the Form I-864, although it may 
prove that it is the father's resources, not the daughter's, that make 
meeting the ``significant assets'' provision possible. As noted, she 
may rely on her father's income, as distinct from his assets, only if 
her father has the same principal residence as she does and can show by 
a preponderance of the evidence that his income will continue from the 
same source, even after acquisition of permanent residence.
Documenting the Sponsor's Current Income
    Eighteen commenters pointed out that Form I-864 does not include a 
place for the sponsor to indicate his or her current income. This 
oversight was corrected in the September 15, 2003, edition of Form I-
864. The final rule now makes it clear that it is the sponsor's income 
in the year in which the intending immigrant applies for an immigrant 
visa or adjustment of status that is to bear the greatest evidentiary 
weight in determining whether the affidavit of support is sufficient. 
The tax forms for past years serve as an indication of the sponsor's 
ability to maintain that income over time.
    These 18 comments implicitly suggested another question: For what 
year must the sponsor's income meet the requirements of section 213A? 
This question will arise regularly, since it is often the case that 
there will be a lapse of time between the filing of the Form I-864 and 
the decision on the immigrant visa or adjustment application. The final 
rule clarifies that, as a general principle, the sufficiency of the 
Form I-864 will be determined based on the household income for the 
year in which the intending immigrant filed the immigrant visa or 
adjustment application. There is one exception, however. If more than a 
year has elapsed since the submission of the Form I-864, the final rule 
gives the Department of State officer, immigration officer, or 
immigration judge the discretion to request more current information if 
the Department of State officer, immigration officer, or immigration 
judge concludes that this additional evidence is necessary to the 
proper adjudication of the case. In any case in which the intending 
immigrant is requested to submit additional evidence, the additional 
evidence must relate to the current year, not to the year of the filing 
of the immigrant visa or adjustment application. The sufficiency of the 
Form I-864 will then be adjudicated based on the additional evidence.
    DHS does not intend that a one-year delay between the filing and 
adjudication of the immigrant visa or adjustment application will 
routinely lead to a request for additional evidence. If the sponsor has 
a stable employment and income history, it may in many cases be 
reasonable to infer that this history has continued, so that additional 
evidence would not become necessary simply through the passage of time. 
It is necessary to provide authority to request additional evidence, 
however, for the sake of those cases in which, on the basis of the 
evidence of record, a reasonable adjudicator could find the sponsor's 
ability to maintain a sufficient income is reasonably open to question.
Changes in the Poverty Guidelines
    Eight commenters suggested that a sponsor should not have to 
provide a new Form I-864 if the Poverty Guidelines change while the 
case is awaiting decision. It will not be necessary to file a new Form 
I-864 in this case. The final rule also clarifies that the sufficiency 
of the affidavit of support will be determined in accordance with the 
Poverty Guidelines in effect when the intending immigrant files the 
application for an immigrant visa or adjustment of status. So that the 
record will include the correct version of the Poverty Guidelines, the 
final rule provides that the intending immigrant is to file a copy of 
the current edition of Form I-864P, Poverty Guidelines, with his or her 
application. USCIS updates the Form I-864P each year to reflect the 
annual adjustment in the Poverty Guidelines.
    There is one exception to this general rule: If, in the exercise of 
discretion, the Department of State officer, immigration officer, or 
immigration judge requests additional evidence because more than one 
year has elapsed since the filing of the application, then the 
sufficiency of the Form I-864 will be determined based on the Poverty 
Guidelines in effect when the request for evidence was made.
``Discretion'' To Discount a Form I-864 Despite Sufficient Current 
Income
    The interim rule, at 8 CFR 213a.2(c)(2)(v), provided that a 
Department of State officer, immigration officer, or immigration judge 
may find an affidavit of support to be insufficient, even if the 
sponsor's income meets the income threshold, if the officer finds that 
it is unlikely that the sponsor will be able to maintain that income. 
Twenty-one commenters argued that this element of the interim rule 
gives the deciding officer too much ``discretion.'' One of these 
comments, moreover, maintained that, if the officer can reject 
marginally sufficient Forms I-864, the officer should also be able to 
accept marginally insufficient Forms I-864. The provision in the 
interim rule was not ``discretionary.'' It is not enough that the 
sponsor has sufficient income. Section 213A(f)(1)(E) of the Act clearly 
specifies that the sponsor must demonstrate that he or she can maintain 
that income. The final rule does specify, however, that, if the sponsor 
satisfies all other requirements of section 213A of the Act, a 
sufficient income will ordinarily make the affidavit of support

[[Page 35738]]

sufficient, unless, on the basis of the specific facts of a given case, 
the deciding officer finds that the sponsor has not demonstrated his or 
her ability to maintain that income over time.
    The sponsors employment history could be one specific fact that 
could warrant such a finding. Suppose, for example, that the sponsor 
recently started a new job after a long period of unemployment. If the 
sponsor has a reasonable prospect that the employment will continue, 
then it may well be that the affidavit of support will be sufficient. 
If, however, the new position is, by its terms, only temporary or 
seasonal, it would be reasonable to hold that the income is not 
sufficient to show that the sponsor can reasonably be expected to be 
able to maintain his or her household income at the income threshold.
    Another situation may involve one person who has filed visa 
petitions for several relatives--two brothers and a sister, for example 
at--the same time, so that each beneficiary's priority date becomes 
current at about the same time. The relatives may then apply for 
immigrant visas or for adjustment of status at about the same time. 
Strictly speaking, the legal support obligation would not be in effect 
when these siblings (and their accompanying spouses and children) apply 
for visas, since none of them have been admitted as permanent residents 
yet. Thus, the second brother and the sister, for example, would not be 
included in calculating the ``household size'' for the first brother's 
affidavit of support. Yet the fact that the same person must sign an 
affidavit of support for several people would surely be relevant in 
determining whether the sponsor can meet the support obligation for all 
of those aliens. The Department of State officer, immigration officer, 
or immigration judge may, therefore, properly consider these other 
affidavits of support (although not yet in effect) in determining 
whether the sponsor can meet the requirements of section 213A with 
respect to the alien(s) whose case(s) are under review. It may prove 
that only one or two of the intending immigrants (and their 
accompanying family members) will be able to immigrate at that time, 
unless someone is willing to be a joint sponsor for those intending 
immigrants who, if included, would put the household size beyond the 
size for which the sponsor's income is sufficient.
    On a related issue, the final rule clarifies that a sufficient 
affidavit of support will not overcome the public charge ground of 
inadmissibility in every possible case. In most cases, the affidavit of 
support will carry the greatest weight. In a particular case, however, 
there may be specific facts about the intending immigrant's situation, 
under the factors specified in section 212(a)(4)(B) of the Act--the 
alien's age, health, family status, assets, resources and financial 
status, education and skills--that warrant a finding that the intending 
immigrant remains inadmissible on public charge grounds, even if the 
affidavit of support meets the requirements of section 213A of the Act.
Effect of the Sponsor's Own Receipt of Means-Tested Public Benefits
    Several commenters objected to the requirement that the sponsor 
must disclose whether the sponsor or any household members have 
received means-tested public benefits. The argument is that section 
213A of the Act does not authorize this requirement. USCIS does not 
agree that section 213A of the Act does not permit USCIS to ask about 
past receipt of means-tested public benefits. In most cases, however, 
information about this issue will not add much evidence of probative 
value. As a matter of policy, therefore, the sponsor will not be asked 
to disclose his or her receipt of means-tested public benefits. The 
Service already removed this question from the November 5, 2001, 
edition of the Form I-864. If a sponsor uses an older edition of the 
Form I-864, the sponsor may leave that question unanswered. However, 
USCIS notes that the sponsor may not include any means-tested benefits 
received in calculating the household income. The sponsor may, of 
course, rely on retirement benefits, unemployment compensation, 
workman's compensation, or other benefits that the sponsor has 
received, that must be included as taxable income. The duration of the 
sponsor's eligibility for these benefits may be relevant in determining 
the sponsor's ability to maintain his or her income over time.
Income Tax Returns
    Section 213A(f)(6)(A)(i) of the Act requires the sponsor to provide 
certified copies of his or her individual income tax returns for the 
last three years before the sponsor signed the Form I-864. One 
commenter suggested that the final rule should make clear that the 
sponsor must provide the complete return as actually filed, including 
all Internal Revenue Service Forms W-2 (if the sponsor relies on income 
from employment), Forms 1099 (if the sponsor relies on income from 
sources documented on Forms 1099 in meeting the income threshold), or 
other documentary evidence of income, and not just the Forms 1040, 
1040A or 1040EZ. The final rule makes this clarification.
    Section 213A(f)(6)(B) of the Act gives discretion to alter the 
affidavit of support requirements so that a sponsor need only file a 
copy of the tax return from the most recent tax year, rather than the 
returns for the three most recent tax years. This final rule adopts 
this alternative. That is, once this final rule enters into force, a 
sponsor will only be required to submit one Federal tax return, for the 
most recent tax year. However, the sponsor may, at his or her option, 
submit the sponsor's or household member's Federal income tax returns 
for the three most recent years if the sponsor believes these 
additional tax returns may help to establish the sponsor's ability to 
maintain his or her household income at the applicable threshold set 
forth in Form I-864P, Poverty Guidelines.
Use of IRS Transcripts Instead of Copies of the Required Tax Returns
    Another commenter asked whether the sponsor may submit IRS-
generated transcripts of the returns. Under current IRS policy, IRS 
will provide transcripts, free of charge, if the sponsor files IRS Form 
4506T. There is, by contrast, a fee for filing an IRS Form 4506, rather 
than the free IRS Form 4506T, if one wants to obtain an actual 
photocopy of the filed return. It is important to note that the interim 
rule did not require the sponsor to obtain photocopies of the sponsor's 
own returns from the IRS. If, as the IRS recommends, the sponsor has 
kept photocopies or duplicate originals of the sponsor's returns in the 
sponsor's own files, the sponsor may submit copies of his or her own 
file copies. Section 213A requires the submission of certified copies, 
but the interim rule and the Form I-864 itself make it clear that, by 
signing the Form I-864, the sponsor certifies under penalty of perjury 
that the copies are true copies. The final rule does give the sponsor, 
substitute sponsor, joint sponsor, household member, or intending 
immigrant the option of submitting either photocopies or IRS-generated 
transcripts of the required tax returns. Along with the transcripts or 
photocopies, the sponsor, joint sponsor, or household member must 
submit copies of all Forms W-2, Forms 1099, and schedules, as specified 
in the rule.
No Legal Duty To File a Tax Return
    Two commenters addressed the situation of a sponsor who had no 
legal duty to file a tax return for a particular year. The sponsor 
would bear the burden of showing the basis for his or

[[Page 35739]]

her claim that he or she had income that was not subject to taxation, 
including the source and amount of the income. If the claim that the 
sponsor had no duty to file is based on the sponsor's income being too 
low to require a return, proof that the income was below the threshold 
will be enough to establish that the sponsor had no duty to file. If 
the sponsor claimed that the sponsor had no duty to file for some 
reason other than the sponsor's income level, this burden may require 
the sponsor to provide the officer with information, including 
citations to or copies of statutes, treaties, or regulations that 
support the claim that the sponsor had no duty to file.
    One commenter asked, for example, about the situation in which the 
sponsor claimed that a tax treaty affects the sponsor's tax liability 
under United States law. The sponsor would have to include a copy of 
the relevant treaty provision. The other commenter asked what sort of 
evidence a sponsor may submit to show he or she had no duty to file, 
and asked whether a joint sponsor would always be required. The sponsor 
would submit whatever evidence the sponsor has to support the claim, 
such as proof that the sponsor's income was below the level at which a 
return is required for the year in question. The visa petitioner must 
file an affidavit of support even if the visa petitioner had no duty to 
file an income tax return for one or more of the past three years. A 
joint sponsor would be necessary if the sponsor's income did not meet 
the 125 percent income threshold in section 213A of the Act.
    The most common situation in which there is a claim that the 
sponsor had no duty to file a Federal income tax return will probably 
involve sponsors who reside in Puerto Rico. These sponsors, under 26 
U.S.C. 933(1), may exclude from their taxable income any income from a 
source in Puerto Rico (other than from U.S. Government employment in 
Puerto Rico). If a sponsor had no income from a source outside Puerto 
Rico, it may well be the case that he or she will have considerable 
income, none of which is subject to the Federal income tax. In this 
case, the sponsor will have to present other evidence to substantiate 
his or her claimed income. In most cases, the sponsor's Puerto Rico 
income tax return, if any, would be the most probative alternative 
evidence. Those who reside in Guam, the U.S. Virgin Islands, or the 
Commonwealth of the Northern Mariana Islands would also need to present 
evidence in accordance with the special tax provisions that apply to 
persons living in those places.
Proof of Income Through Self-Employment
    Finally, one commenter believed that, for self-employed persons, 
the sponsor's income should be taken from line 7 of Schedule C to IRS 
Form 1040. That is to say, the self-employed sponsor's income should be 
the gross receipts of the person's business, minus the cost of goods 
sold, but without subtracting legitimate deductions the sponsor has 
taken. USCIS cannot adopt this suggestion. The focus of concern is the 
sponsor's ability to provide the necessary support to the intending 
immigrant(s). Money paid for expenses included in part II of Schedule C 
is not available for this purpose. Moreover, it is the amount of income 
after deduction of expenses that is carried over from Schedule C to the 
Form 1040 itself. Consequently, the final rule retains the original 
definition of income, but clarifies that total income means the entry 
for total income shown on the appropriate line of the relevant Federal 
individual income tax return, IRS Form 1040, 1040A, or 1040EZ, not the 
preliminary calculation of gross income on Schedule C. The final rule 
also tracks the language on IRS Forms 1040 and 1040A by using the term 
``total income'' rather than ``gross income'' in relation to those 
forms, and the term ``adjusted gross income'' in relation to Form 
1040EZ.
Use of Photocopies of Forms I-864 and I-864A for Accompanying Family 
Members
    The interim rule required that, for accompanying family members, 
the sponsor could file copies of the Forms I-864 and I-864A filed for 
the principal intending immigrant, so long as the copies bore original 
signatures and notarizations. On May 18, 1998, however, the Service 
announced, at 63 FR 27193, that the sponsor could submit complete 
photocopies of these original Forms I-864 and I-864A for the 
accompanying family members, so long as the forms for the principal 
intending immigrant bear original signatures and notarizations. The 
final rule incorporates this change.
    The Service also revised Form I-864 so that the sponsor now signs 
the Form ``under penalty of perjury under the laws of the United 
States,'' thus making it unnecessary to sign or acknowledge the Form I-
864 before an officer authorized to administer oaths or take 
acknowledgements. The November 5, 2001, edition of the Form I-864 still 
includes the notary's jurat block, for those who may wish to have the 
Form I-864 notarized. Under 28 U.S.C. 1746, however, signing before a 
notary is not necessary.
Significant Assets
    Ten commenters objected to the requirement that the assets of the 
sponsor or intending immigrant must equal at least five times the 
difference between the applicable income threshold and the actual 
household income. One of these ten commenters argued that this 
requirement could impose a special hardship on large families, forcing 
``painful choices of bringing only part of the family.'' One commenter, 
on the other hand, supported this requirement.
    Those who objected to this requirement believed that a lower 
figure, such as twice the difference between the applicable income 
threshold and the actual household income, would be sufficient to 
qualify as ``significant assets.'' The purpose of the requirement, 
however, is to ensure that a sponsor whose income is not sufficient 
will nevertheless be able to provide the needed support until the 
sponsorship obligation ends. In most cases, an alien is not eligible 
for naturalization until he or she has been a permanent resident alien 
for at least 5 years. It is likely, therefore, that the sponsor's 
obligation will last at least that long. One commenter did point out 
that the spouse of a citizen can naturalize after 3 years. Thus, the 
final rule modifies the ``significant assets'' requirement slightly. If 
the intending immigrant is immigrating as the spouse or child of a 
citizen (but the child has already reached his or her 18th birthday), 
the ``significant assets'' requirement will be satisfied if the assets 
equal three times, rather than five times, the difference between the 
applicable income threshold and the actual household income. As noted, 
many IR-4 immigrants (orphans coming to the United States for adoption) 
will become citizens soon after admission, as soon as the adopting 
parents complete the adoption in the United States. As long as the 
parents' assets equal the difference between the applicable income 
threshold and the actual household income, they will be deemed to have 
met the ``significant assets'' requirement.
Beginning and End of the Sponsor's Support Obligation
    The interim rule did not specify precisely when the obligations 
under Form I-864 or Form I-864A actually commence. No comments were 
received on this issue. Nevertheless, the final rule clarifies that the 
mere signing of Form I-864 or Form I-864A does not

[[Page 35740]]

impose any obligations on the sponsor, joint sponsor, or household 
member. A sponsor may file a fully sufficient Form I-864, but the 
intending immigrant may be held to be inadmissible on some other basis. 
In another case, the intending immigrants included in a Form I-864 or 
Form I-864A may not all acquire permanent residence on the same day. 
The final rule clarifies that, for the obligations to arise, the 
intending immigrant must actually acquire permanent resident status on 
the basis of the application supported by the Form I-864 or Form I-
864A. Additionally, a potential joint sponsor who signed a Form I-864 
that met all the requirements of the affidavit of support regulation 
would be bound by the support obligations only if the immigration 
judge, immigration officer, or consular officer found that the 
principal sponsor did not meet the income threshold, so that the joint 
sponsor's Form I-864 was actually necessary to the grant of permanent 
residence to the intending immigrant.
    In response to nine commenters, the final rule clarifies that a 
household member's obligations under Form I-864A terminate under the 
same circumstances as the sponsor's obligations under Form I-864 
terminate. One commenter asked whether a household member's obligation 
under Form I-864A terminates when he or she leaves the household. It 
does not. One of the commenters suggested that divorce should terminate 
a support obligation. Another commenter suggested that divorce should 
be irrelevant to the support obligation. Finally, one commenter 
maintained that the support obligation should terminate five years 
after the sponsored immigrants become resident aliens, ``even if they 
do not become citizens or work.''
    Section 213A of the Act specifies the two circumstances that end 
the support obligation: The sponsored immigrant's (1) naturalization or 
(2) having acquired 40 quarters of coverage under the Social Security 
Act. The interim rule added two more: (1) The death of the sponsor or 
sponsored immigrant or (2) the sponsored immigrant's abandonment of 
status and permanent departure from the United States. These two 
additional grounds for termination exist as a matter of logical 
necessity. Section 213A of the Act does not provide any basis to say 
that divorce does, or does not, affect a support obligation under an 
affidavit of support. If the sponsored immigrant is an adult, he or she 
probably can, in a divorce settlement, surrender his or her right to 
sue the sponsor to enforce an affidavit of support. The sponsored 
immigrant and the sponsor (or joint sponsor) may not, however, alter 
the sponsor's obligations to DHS and to benefit-granting agencies.
    This final rule adds two additional situations that will terminate 
the obligations that result from the signing of a Form I-864 or I-864A. 
First, as noted, the interim rule terminated these obligations if the 
sponsored immigrant ceases to be an alien lawfully admitted for 
permanent residence and leaves the United States. It is not always the 
case, however, that an alien who abandons permanent residence does so 
formally, such as by filing a USCIS Form I-407 when departing the 
United States. In many cases, the issue of abandonment is determined 
only in a later removal proceeding. The final rule makes clear that a 
formal adjudication in a removal proceeding that an alien has abandoned 
permanent resident status will also terminate any remaining obligations 
under any Form I-864 or I-864A submitted when the person became a 
permanent resident.
    Second, some aliens who have already been admitted as permanent 
residents but have become subject to removal apply for a new grant of 
adjustment of status as a means of relief from removal. If an alien in 
this situation seeks this new adjustment as an immediate relative or as 
a family-based immigrant (or as an employment-based immigrant who will 
work for a relative or a relative's firm), the alien may need to submit 
a new Form I-864 or I-864A with the new adjustment application. The 
grant of adjustment will terminate the support obligations resulting 
from any earlier Forms I-864 or I-864A, and those obligations will then 
rest on whomever signed the Forms I-864 or I-864A in support of the new 
adjustment application.
    Thirteen commenters believed that USCIS should notify sponsors when 
the sponsorship obligations have terminated. Adopting this suggestion 
is not feasible. Since the sponsor is a relative, it is likely that the 
sponsor will know, or can inquire of the sponsored immigrant, whether 
any fact that terminates the obligation has occurred. The only bases 
for termination of which USCIS is likely to be aware are the sponsored 
immigrant's naturalization or the sponsored immigrant's formal 
abandonment of permanent residence or formal removal from the United 
States. The termination of the obligation would be an affirmative 
defense to any deeming of the sponsor's income to the sponsored 
immigrant, request for reimbursement, or notice of intent to fine for 
failure to file Form I-865 to report a change of address.
Reporting a Change of Address
    One commenter suggested that Form I-865, Sponsor's Notice of Change 
of Address, is virtually worthless, since the sponsor need not report 
the sponsored immigrant's name, address, or other identifying 
information. Form I-865 need not include information about the 
sponsored immigrant, because the USCIS database automatically links a 
Form I-865 to every Form I-864 that the sponsor may have filed, based 
on the sponsor's Social Security number.
    The commenter also suggested that USCIS should send a confirmation 
that it has received a Form I-865. USCIS will consider this suggestion 
as USCIS expands its automated capabilities. Until this expansion 
occurs, a sponsor or joint sponsor may protect his or her ability to 
verify that he or she has complied with the requirement to file Form I-
865 by submitting the properly completed Form I-865 by mail (using the 
U.S. Postal Service's Express Mail, priority mail, or certified mail 
service) or by shipping it through a commercial delivery service, and 
keeping the proof of mailing or shipment as well as the return receipt 
or other confirmation of delivery for his or her files.
    Accordingly, the final rule provides that USCIS will accept the 
United States Postal Service certificate of mailing and a return 
receipt or delivery confirmation as proof that the sponsor or joint 
sponsor filed the Form I-865 with the office whose address appears on 
the certificate of mailing and return receipt. If the sponsor uses a 
commercial delivery service, USCIS will accept the delivery service's 
shipping label and proof of delivery of the properly completed Form I-
865 to the appropriate USCIS office.

I. Orphan Cases

    Sixty-two commenters objected to the requirement that U.S. citizens 
who adopt alien orphan children, as defined in section 101(b)(1)(F) of 
the Act, must file affidavits of support on behalf of these children. 
Fifty of the 62 comments on this issue were substantially identical 
letters. The other 12, while not identical, raised issues included in 
the 50 identical letters.
    It is likely that many, and perhaps most, alien orphans will be 
exempt from the affidavit of support requirement under the provision of 
this final rule that relieves an alien of the need to have an affidavit 
of support if the alien already has, or can be credited with, 40 
quarters of coverage under the Social Security Act. An alien child is 
entitled to be credited with all the quarters of coverage earned by 
each of his or her

[[Page 35741]]

parents before the child's 18th birthday. To qualify as an alien 
orphan, the alien must not have reached his or her 16th birthday before 
the adopting parent(s) filed the visa petition. Thus, the orphan can be 
credited with each of his or her parents' quarters of coverage. The 
parents, in turn, need not have worked full-time in order to obtain 
quarters of coverage. In 1998, for example, a person earned four 
quarters of coverage if he or she made at least $2,800.00 in covered 
earnings during that year (62 FR 58762). It is likely that many, if not 
most, citizens adopting orphans will already have sufficient quarters 
of coverage to make the filing of an affidavit of support unnecessary. 
If the parents' Social Security Administration records show that, 
between them, they already have 40 quarters of coverage, then they will 
not need to file a Form I-864 for the alien orphan.
    As already noted in this Supplementary Information, moreover, this 
final rule relieves the child of a citizen of the affidavit of support 
requirement, if the child will, upon admission, acquire citizenship 
under section 320 of the Act. No affidavit of support will be 
necessary, therefore, if the adoption of an alien orphan is already 
final when the alien orphan seeks admission or adjustment of status 
and, since both parents saw the child before or during the adoption 
proceeding, the alien orphan will become a citizen under section 320 of 
the Act, as amended, upon his or her admission or adjustment of status.
    The long-term impact of the affidavit of support requirement is 
also likely to be small in orphan cases for another reason. Section 
213A(a)(2) of the Act terminates the sponsor's obligations under the 
affidavit of support when the sponsored immigrant naturalizes. Assuming 
the child meets all other requirements of section 320 of the Act, as 
amended, that provision will make the alien orphan who is not adopted 
abroad a citizen as soon as the citizen parent finalizes the alien 
orphan's adoption in the United States. Unlike the sponsors of adults, 
therefore, the citizen sponsors of immigrant children have considerable 
control over how long the affidavit of support obligations will 
continue.
    For the sake of those adopting parents who intend to adopt an alien 
orphan after bringing the child to the United States, but who cannot 
meet the quarters of coverage exception, USCIS will address the orphan-
related comments. The comments and the responses are set out as 
follows.
    Comment: Requiring affidavits of support on behalf of alien orphan 
children is duplicative, since the adopting parents must already 
provide information concerning their financial status when they file 
the orphan visa petition.
    Response: The Form I-864 does not simply duplicate the visa 
petition process. It has long been settled that whether the intended 
beneficiary is actually admissible to the United States is not at issue 
in the visa petition process. See Matter of O, 8 I. & N. Dec. 295 (BIA 
1959). The only issues in the visa petition proceeding are whether the 
alien child qualifies as an orphan and whether the petitioner qualifies 
as a prospective adoptive parent. Whether the orphan is actually 
admissible can be decided only when that issue is adjudicated in 
connection with an application for an immigrant visa, for admission as 
an immigrant, or for adjustment of status. Section 212(a)(4)(C) of the 
Act specifically requires an affidavit of support for all aliens who 
immigrate as the immediate relatives of U.S. citizens. Like all 
unmarried minor children of citizens, orphans immigrate as immediate 
relatives. Thus, section 213A of the Act clearly requires affidavits of 
support in these cases. Moreover, the Form I-864 also provides the 
basis for deeming the sponsor's income to the sponsored immigrant, for 
purposes of determining the sponsored immigrant's eligibility for 
means-tested public benefits, and makes the sponsor responsible for 
reimbursing agencies for the costs of means-tested public benefits.
    Comment: Requiring an affidavit of support at the immigrant visa 
stage introduces uncertainty, since the adopting parents will not be 
able to know whether the children are admissible. The regulation should 
provide for ``pre-approval'' of the Form I-864, for example, when the 
parents file Form I-600, Petition to Classify Orphan as an Immediate 
Relative or I-600A, Petition for Advance Processing of Orphan Petition.
    Response: This uncertainty exists in all immigrant visa cases, 
since approval of a visa petition never guarantees that the intended 
beneficiary will be found to be admissible when he or she applies for 
an immigrant visa, for admission, or for adjustment of status. USCIS 
cannot ``pre-approve'' the Form I-864, since only the officer who has 
jurisdiction over the application for an immigrant visa, for admission 
as an immigrant, or for adjustment of status has authority to determine 
whether an alien is admissible. The parents will, however, know their 
own financial situation, including whether they have, between them, at 
least 40 qualifying quarters of coverage under the Social Security Act. 
They will also know the requirements they must meet to satisfy section 
213A of the Act. Their knowledge of the facts of their situation and of 
the legal requirements will enable them to make a reasonable prediction 
about their ability to satisfy the requirements of the law.
    Comment: Parents should not be required to file an affidavit of 
support on behalf of their children because they are already 
responsible for the support of their children and therefore the Form I-
864 just duplicates the already-existing support obligation.
    Response: The affidavit of support requirement goes beyond the 
general obligation to support one's children, by providing, in 
accordance with the clear statutory mandate, that a benefit-granting 
agency may deem the sponsor's income to be the sponsored immigrant's 
income, and that the sponsor must reimburse agencies for the costs of 
any means-tested public benefits that may be accorded to the sponsored 
immigrant.
    Comment: Requiring production of tax returns and other financial 
information is overly intrusive, especially since the regulation 
permits USCIS to make this information available to agencies that may 
provide means-tested public benefits.
    Response: Section 213A(f)(6) of the Act specifically requires the 
sponsor to produce his or her tax returns. Section 213A(a)(3)(C) of the 
Act requires USCIS to make the sponsor's name, address, and Social 
Security number available to public assistance agencies through the 
system for alien verification of eligibility. USCIS will provide these 
documents to other agencies only in relation to a deeming action or an 
action to enforce the sponsor's support obligation. USCIS will not make 
the documents, or the information in them, routinely available to other 
agencies.
    Comment: Requiring the adopting parents to provide notice of any 
change of address violates their rights as citizens.
    Response: Section 213A(d) of the Act clearly requires the sponsor 
to provide notice of a change of address, so long as the affidavit of 
support obligation remains in force. This requirement will not apply to 
those who, because they have already accrued 40 qualifying quarters of 
coverage, need not submit an affidavit of support. Also, the 
requirement to notify USCIS of a change of address ends when the child 
is naturalized.
    Comment: Either of the adopting parents, and not just the one who 
signed the visa petition, should be able to be

[[Page 35742]]

the orphan's sponsor. It may be that the parent who signed the petition 
is not the parent who has the income sufficient to meet the income 
requirements.
    Response: The sponsor must be the person who is actually the visa 
petitioner. As long as one parent who is actually the visa petitioner 
signs the Form I-864 and the other signs a Form I-864A, both spouses' 
incomes may be considered in determining the household income.
    Comment: Requiring the adopting parent to complete part 3 of Form 
I-864 is not consistent with the rules governing the use of Form I-
600A, the application for advance processing of an orphan petition. 
When a prospective adoptive parent files Form I-600A, it is not 
necessary to identify the prospective immigrant.
    Response: A prospective adoptive parent uses Form I-600A if he or 
she wants to begin the processing before he or she has identified the 
particular child to be adopted. The parent must also file Form I-600, 
the petition to classify an orphan as an immediate relative, once the 
child has been identified. Since the parent files Form I-864 when the 
child actually applies for an immigrant visa, the child's identity will 
be known, enabling the sponsor to include this information in part 3 of 
Form I-864.
    Comment: Requiring proof of employment or self-employment is unfair 
to adopting parents who may have taken time off from work in order to 
prepare for adopting the child.
    Response: Temporary absence from the work force will not require 
rejection of the affidavit of support, so long as the sponsor can show 
that either the household income or the sponsor's assets meet the 
requirements of the regulation. As with all sponsors, there is no 
requirement that the sponsor be employed in order to qualify as a 
sponsor. What section 213A of the Act requires is that the sponsor's 
income, whether from employment, investments, or some other lawful 
source, must meet the income threshold established by section 213A of 
the Act, or else that the sponsor can meet the alternative 
``significant assets'' provision.
    Comment: Requiring affidavits of support for alien orphans 
discriminates against these children and their parents, since parents 
of biological children do not have to comply with the requirements.
    Response: A biological parent must meet the requirements of section 
213A of the Act if the biological child is an alien who will immigrate 
on the basis of the biological parent's visa petition and will not 
acquire citizenship at admission under section 320 of the Act, as 
amended, just as a prospective adoptive parent must meet these 
requirements if the adopted child is going to immigrate based on the 
prospective adoptive parent's visa petition, but will not acquire 
citizenship at admission under section 320 of the Act, as amended. The 
same rule applies to a child born in or out of wedlock, to a stepchild, 
and to an adopted child that does not qualify as an orphan. In each 
case, the citizen parent must file Form I-864, unless the child has, or 
can be credited with, 40 qualifying quarters of coverage under the 
Social Security Act, or unless the child will, at admission, acquire 
citizenship under section 320 of the Act, as amended.
    Comment: Adopting parents should not have to disclose their past 
receipt of means-tested public benefits.
    Response: As already noted, a sponsor will no longer be required to 
provide this information.
Definition of ``Means-Tested Benefits''
    Six commenters addressed the definition of ``means-tested public 
benefits.'' The interim rule specified that, in order to qualify a 
program as a means-tested public benefit program, for purposes of the 
deeming and reimbursement requirements, the agency that administers the 
program should publicize the agency's determination that the program is 
a means-tested public benefit program. One commenter argued that the 
definition of means-tested public benefit is too narrow. The commenter 
suggested that the regulation should incorporate the definition 
included in an earlier, unenacted, version of what became section 213A 
of the Act. As the commenter pointed out, however, this definition was 
deleted from the bill under the so-called ``Byrd rule,'' 2 U.S.C. 644. 
This commenter argued that the striking of the definition should not be 
considered an expression of the actual congressional intent in enacting 
the final bill, but only as a preliminary parliamentary move. The fact 
remains that Congress did not enact the definition that this commenter 
prefers.
    Other commenters believed that the rule or the Form I-864 should 
specify exactly which programs qualify as means-tested public benefits. 
This alternative would require a revision of the regulation and of the 
Form I-864 each time a new means-tested public benefit was created or 
an existing one abolished. The final rule strengthens the requirement 
of the interim rule at 8 CFR 213a.4(b) that a benefit agency make 
public its determination that a program qualifies as a means-tested 
public benefit if the agency wants to deem a sponsor's income to a 
sponsored immigrant and to seek reimbursement from a sponsor. The 
Federal agency's publication in the Federal Register of the agency's 
determination that a program is a means-tested public benefit is 
sufficient to give all persons notice of the determination. 44 U.S.C. 
1507. Several states have their own corresponding systems for 
publishing relevant regulatory and administrative determinations. So 
long as a Federal agency gives notice in the Federal Register, or a 
State agency gives notice in whatever manner is provided for under 
State law, therefore, any sponsor can by reasonable effort learn which 
programs are ``means-tested public benefit'' programs.
    A related comment is that a sponsor should be responsible only for 
those programs that have been designated as ``means-tested public 
benefit'' programs as of the date the sponsor signs the Form I-864. 
Again, because ``means-tested public benefit'' was defined in the 
interim rule, a sponsor cannot reasonably claim not to know which 
programs are enforceable against him or her. However, USCIS agrees that 
as the interim rule encouraged governments to report which specific 
programs were means-tested, some notice by publication of benefit 
programs is appropriate. This final rule provides that any government 
providing a means-tested public benefit must publish that it is a 
means-tested public benefit prior to the date the benefit was first 
provided to the immigrant, for that government to be eligible to be 
reimbursed by the sponsor who sponsored that immigrant.
Enforcement of the Affidavit of Support
    Numerous commenters suggested that the regulation should more 
precisely define the scope of the sponsor's liability. For example, 
must the sponsor provide money to the sponsored immigrant, or may the 
support be provided in kind? Does the sponsored immigrant have a duty 
to support himself or herself, which the sponsor can raise as an 
affirmative defense to a suit by the sponsored immigrant? Is the 
sponsor's liability to a benefit granting agency limited to the 
difference between the sponsored immigrant's income and the 125 percent 
income threshold? Or is the scope of liability, at least potentially, 
unlimited? If the sponsor was supporting the sponsored immigrant at the 
proper level, or the sponsored immigrant was otherwise ineligible for 
assistance, but the agency mistakenly provided assistance, is the 
sponsor liable? Like the interim rule, this final rule does not address 
these issues. It is for the proper court to

[[Page 35743]]

adjudicate any suit that may be brought to enforce an affidavit of 
support.
    One commenter asked how the liability is to be apportioned among 
the sponsor, a joint sponsor, and any signers of Form I-864A. Under 
section 213A of the Act, the sponsor and joint sponsor are jointly and 
severally liable. Under the regulation, a person who signs a Form I-
864A also agrees to be held jointly and severally liable with the 
sponsor. The general principles that govern joint and several liability 
will apply in these cases. This means that the sponsor and the joint 
sponsor are equally responsible under the law for the sponsored 
immigrant's support. If the sponsored immigrant receives a means-tested 
benefit, the agency may seek reimbursement, and if necessary, may sue 
only the sponsor, only the joint sponsor, or both the sponsor and the 
joint sponsor.
    Another commenter believed it contrary to the intent of Congress to 
permit the sponsored immigrant to sue to enforce the support 
obligation. Section 213A(a)(1)(B) of the Act expressly says the 
sponsored immigrant must be able to seek to enforce the affidavit of 
support. Congress clearly intended to permit the sponsored immigrant to 
sue to enforce the support obligation, if necessary.
    One commenter criticized the rule because section 213A of the Act 
requires the sponsor to provide the sponsored immigrant with enough 
support to keep the sponsored immigrant's income at ``no less than'' 
125 percent of the Poverty Guidelines, but the rule speaks of ``at or 
above'' 125 percent. The regulation does not use the expression ``at or 
above.'' In any event, USCIS is at a loss to understand the difference. 
To avoid liability, the sponsor must maintain the sponsored immigrant 
at 125 percent. If the sponsor chooses to do more, the sponsor may do 
so. But neither section 213A of the Act nor the rule requires a sponsor 
to do so.
    One comment asked whether a State agency must comply with the 
requirement to request reimbursement, if the agency has no intention to 
sue. Section 213A(b) of the Act makes the request for reimbursement a 
prerequisite to suit, but does not require the agency to sue. For this 
reason, section 213A(b) of the Act would not require any agency to make 
a request for reimbursement, if that agency has no intention to sue. 
This observation, of course, pertains only to section 213A of the Act, 
and has no bearing on whether the agency may have a legal obligation, 
apart from section 213A of the Act, to seek reimbursement or to bring 
suit.
    This commenter also asked about how the deeming requirement and the 
reimbursement requirement relate to each other. This question relates, 
in part, to the eligibility requirements for a specific benefit 
program. The basic assumption is that, if the sponsor's income is 
sufficiently high, then deeming the sponsor's income to the sponsored 
immigrant will make the sponsored immigrant ineligible for the program. 
No benefits would then be paid, and no reimbursement obligation would 
arise. Similarly, the purpose of the ``indigence exception'' in section 
421(e) of Public Law 104-193 that this commenter addresses is to 
prevent the sponsored immigrant from falling into total distress if the 
sponsor defaults on his or her obligation. The agency may then provide 
assistance, assuming the sponsored immigrant is otherwise eligible, and 
collect the cost of the benefits from the sponsor.
    This commenter also objected to the reference in 8 CFR 213a.2 to 
another section of title 8 for the definition of ``personal service.'' 
The complete text of the Code of Federal Regulations is readily 
available to the public from the Government Printing Office, in public 
libraries, computer-assisted research services, and on the USCIS 
Internet Web site at http://www.uscis.gov. To define a term that has 
already been defined is not necessary. In response to a different 
comment, however, the final rule does clarify that personal service of 
a request for reimbursement under section 213A(b) of the Act and 8 CFR 
213.4(a) need not be made by a Federal Government officer or employee.
    This commenter believed that USCIS should be the sponsor's agent 
for purposes of service on the sponsor of a request for reimbursement 
or of a summons and complaint. Section 213A of the Act provides no 
basis for the adoption of this suggestion. USCIS will provide the 
sponsor's last known address to an agency entitled to that information. 
It then falls to the agency to accomplish service of process.
    This commenter also argued that the agency should be able to 
include anticipated future benefits in the request for reimbursement. 
There is no duty to reimburse until the agency actually provides some 
benefit. If additional benefits are paid, nothing in section 213A of 
the Act or regulation precludes a subsequent request for reimbursement.

J. Miscellaneous Comments

    In addition, the Service received seven broad general comments in 
favor of the interim rule, and 19 broad general comments against the 
interim rule. These comments also addressed specific issues, and so the 
response to these comments as they relate to those issues have been 
included in the discussion of those issues. Three of the negative 
comments, however, warrant a separate response.
    First, 14 of the negative comments expressed concern that the 
interim rule would undercut the principle of family unification by 
making it more difficult for citizens and resident aliens to bring 
their family members to the United States. This result may follow from 
the strengthening of the public charge inadmissibility ground. The 
general principle of family unification, however, always operates in 
light of the specific requirements of the immigration laws. Family 
unification cannot provide a basis for admitting an alien who is unable 
to overcome a ground of inadmissibility for which the law does not 
provide a waiver.
    Another commenter argued that the new affidavit of support 
requirement was not intended to impose financial obligations on U.S. 
citizens and permanent resident sponsors. But section 213A of the Act 
clearly does impose financial obligations on sponsors. Section 
213A(b)(2) of the Act permits assistance agencies to sue the sponsor 
for reimbursement of means-tested public benefits. Section 
213A(a)(1)(B) of the Act permits the sponsored immigrant to sue as 
well.
    Another commenter argued that the regulation should adopt a 
different interpretation of the support requirements because people 
from different cultures often support family members on far less money 
than United States citizens are generally accustomed to. Section 213A 
of the Act, however, clearly specifies that the household income must 
meet a specified threshold. There is no administrative authority to 
disregard the income requirements that Congress has enacted.
    Two commenters argued that it is ``unfair'' that the new affidavit 
of support requirement applies to aliens who immigrate on the basis of 
visa petitions filed and approved before the new requirement entered 
into force. One of the commenters suggested that the commenter's son 
would have married someone else, if he had known he would have to sign 
an enforceable Form I-864. It is beyond question that Congress may 
enact new immigration provisions and make them apply to cases that were 
already pending. Matter of Alarcon, 20 I. & N. Dec. 557, 562 (BIA 
1992). Section 531(b) of IIRIRA clearly makes the new affidavit of 
support requirement apply to aliens who apply for admission (or, by 
extension,

[[Page 35744]]

adjustment of status) on or after the day the requirement entered into 
force.
    The Supplementary Information that accompanied the interim rule 
indicated that the duties imposed on the sponsor arise from the 
sponsor's participation in a voluntary Federal program. One commenter 
objected to the characterization of the affidavit of support 
requirement as ``voluntary,'' since completing Form I-864 is the only 
way to satisfy the requirements of section 213A of the Act. The only 
voluntary aspect, according to this comment, ``is to sponsor an 
immigrant or not sponsor an immigrant.'' But that is precisely what 
makes it voluntary. The sponsor is under no legal obligation to file a 
visa petition, nor is the sponsor obligated to sign Form I-864. But if 
the sponsor chooses to facilitate the immigration of alien relatives, 
the sponsor must comply with the legal requirements for doing so.
    This commenter also objected to the designation of consular 
officers as immigration officers, for purposes of the interim rule, and 
to the fact that consular officers should play any role at all in the 
process. The Form I-864, according to this comment, should be pre-
approved by USCIS. Consular officers have for decades had authority 
under the Act and its predecessors to adjudicate applications for 
immigrant visas. In doing so, the consular officer must necessarily 
determine whether the applicant is inadmissible as likely to become a 
public charge. Also, the commenter appeared to misunderstand the reason 
for designating consular officers as immigration officers for the 
limited purpose of this rule. Under section 531(b) of IIRIRA, no 
affidavit of support is required if the alien had his or her interview 
with ``an immigration officer'' before the affidavit of support 
requirement entered into force. Without the designation to which this 
commenter objects, the new requirement would have applied to all aliens 
who had obtained visas before December 19, 1997, but who did not 
actually immigrate until after that date. USCIS considered it more 
prudent to ``grandfather'' this finite class of aliens, rather than 
impose on USCIS, the consuls, and the aliens the burden of having to 
reconsider the validity of the already-issued visas in light of the new 
requirements.
    Finally, a commenter asked for clarification of what constitutes a 
``material misrepresentation'' that would render the affidavit of 
support insufficient to overcome the public charge inadmissibility 
ground. According to the Supreme Court's decision in Kungys v. United 
States, 485 U.S. 759 (1988), a concealment or misrepresentation of fact 
is material if disclosure of the truth would have had a natural 
tendency to influence an official decision. The critical question is 
whether the sponsor has, and can maintain, a household income that is 
at least 125 percent of the Poverty Guidelines for a household of the 
same size. Certainly, misrepresentations or concealments about 
household size, income, or employment history would always be material. 
Whether other concealments or misrepresentations would be material 
would depend on the facts of particular cases.

K. Children Who Immigrate Under Section 211(a) of the Act

    This final rule also adopts one additional revision that is not 
based on any comments. This revision concerns children admitted under 
section 211(a) of the Act. This provision waives the immigrant visa 
requirement for certain children who accompany their immigrant 
parent(s) to the United States, but who are born after issuance of the 
immigrant visa to the parent(s). These children are not counted against 
the numerical limits on immigration, nor is any separate visa petition 
filed for them. Thus, section 204 of the Act does not form the basis of 
their admission, and they are not properly classified as ``immediate 
relatives,'' ``family-based immigrants'' or ``employment-based 
immigrants.'' Since they do not belong to any of the classes specified 
in sections 212(a)(4)(C) or (D) and 213A of the Act, the final rule 
makes clear that there is no need in these cases for an affidavit of 
support that meets the requirements of section 213A of the Act. It will 
still be necessary for the child's parent or parents to establish that 
the child is not inadmissible on public charge grounds. Section 
212(a)(4)(B) of the Act, and the case law that section 212(a)(4)(B) of 
the Act is drawn from, rather than section 213A of the Act, will govern 
this determination.

L. Role of the Immigration Judges

    This jointly published final rule includes new provisions, in 8 CFR 
part 1240, relating to the authority of immigration judges, an issue 
that the interim rule did not address and about which the Service 
received no comments. The interim rule did not include immigration 
judges as officers with authority to adjudicate the sufficiency of a 
Form I-864. The Attorney General has concluded, however, that it is 
appropriate for immigration judges to have this authority. Immigration 
judges regularly adjudicate applications for adjustment of status filed 
by aliens in removal proceedings, and in many of these cases, section 
212(a)(4)(C) or (D) of the Act requires the applicant to submit an 
affidavit of support that complies with the requirements of secton 213A 
of the Act in order to establish that the applicant is not likely to 
become a public charge. This rule amends 8 CFR part 1240 and expressly 
authorizes an immigration judge to review the affidavit of support in 
order properly to decide the adjustment application, when this issue 
arises in removal proceedings. The provisions of 8 CFR part 213a also 
now refer to the immigration judge when this reference is appropriate. 
The Attorney General, rather than the Secretary of Homeland Security, 
is promulgating the amendments to 8 CFR part 1240 since these 
amendments relate to the jurisdiction of immigration judges.

M. Additional Changes to Department of Justice Rules

    As noted previously, the Secretary of Homeland Security has 
included in this final rule an amendment to 8 CFR 205.1 that implements 
the Family Sponsor Immigration Act, Public Law 107-150. The Department 
of Justice regulation at 8 CFR 1205.1 includes substantially the same 
provision as 8 CFR 205.1. Both 8 CFR 205.1(a)(3)(i)(C) and 8 CFR 
1205.1(a)(3)(i)(C) refer to the ``Attorney General'' as having 
discretion to reinstate approval of a family-based immigrant visa 
petition, in a case in which the approval is revoked by the 
petitioner's death. Under section 451 of the Homeland Security Act, 
this discretion now rests with USCIS since, before enactment of the 
Homeland Security Act, the Board of Immigration Appeals did not have 
jurisdiction to adjudicate an appeal from a district or service center 
director's decision not to reinstate the approval. Matter of Zaidan, 19 
I. & N. Dec. 297 (BIA 1985). Section 5304(c)(1) of the Intelligence 
Reform and Terrorism Prevention Act of 2004, Public Law 108-458, amends 
section 205 of the Act to make clear that the Secretary of Homeland 
Security, not the Attorney General, now has authority to revoke 
approval of an immigrant visa petition. To avoid conflict between 8 CFR 
205.1 and 8 CFR 1205.1, this final rule includes an amendment to 8 CFR 
1205.1. As with the amendments to 8 CFR part 1240, the Attorney General 
is promulgating this conforming amendment.
    The Secretary of Homeland Security hereby amends the regulations of 
the Department of Homeland Security to clarify the affidavit of support 
process under section 213A of the Immigration

[[Page 35745]]

and Nationality Act. The Secretary is exercising his authority under 
sections 103 and 213A of the Act (8 U.S.C. 1103, 1183a).
    The Attorney General is amending part 1240 of the regulations of 
the Department of Justice to clarify the authority and procedures 
before immigration judges to adjudicate an affidavit of support under 
section 213A of the Immigration and Nationality Act. The Attorney 
General also is amending part 1205 of the regulations of the Department 
of Justice to conform the text of 8 CFR 1205.1(a)(3)(i)(C) to the text 
of 8 CFR 205.1(a)(3)(i)(C) as amended by the Secretary of Homeland 
Security. The Attorney General is exercising his authority under 
section 103(g) of the Act, and his authority under 28 U.S.C. 503, 509-
510.

III. Regulatory Analyses

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996 
(SBRFA), requires an agency to prepare and make available to the public 
a regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small governmental jurisdictions). DHS has reviewed this regulation in 
accordance with the Act and has determined, with respect to the 
amendments made by this final rule to 8 CFR parts 204, 205, 213a, and 
299, and the Department of Justice has determined, with respect to the 
amendments made to 8 CFR parts 1205.1 and 1240, that it will not have a 
significant economic impact on a substantial number of small entities.
    The factual basis for this determination is that this rule applies 
to individuals who file affidavits of support on behalf of immigrants, 
and the immigrants they sponsor. The impact is on these persons in 
their capacity as individuals, so that they are not, for purposes of 
the rule, within the definition of small entities established by 5 
U.S.C. 601(6). In this regard, it is important to note that it is the 
immigrant's relative in that relative's individual capacity, and not 
the firm, that incurs the obligation to support an employment-based 
immigrant who is subject to the affidavit of support requirement.

B. Unfunded Mandates Reform Act

    Since the duties imposed on the sponsor arise from the sponsor's 
participation in a voluntary Federal program, this rule is not a 
Federal private sector mandate, as defined by 2 U.S.C. 658(7)(A)(ii). 
The rule implements statutory requirements placed on Federal, state, 
and local government agencies related to seeking reimbursement of 
benefits from a sponsor under an affidavit of support. Agencies must 
also provide certain reports to USCIS. Under 2 U.S.C. 1531, however, no 
Federal Intergovernmental Mandate Assessment is required because this 
rule ``incorporate[s] requirements specifically set forth in law.''

C. Administrative Procedure Act

    Under 5 U.S.C. 553(d), a substantive rule generally may not enter 
into force until 30 days after publication in the Federal Register. A 
longer delay applies to a ``major rule,'' as defined in the 
Congressional Review Act, 5 U.S.C. 804, as amended by SBRFA. This final 
rule, however, is not a ``major rule,'' and so will enter into force on 
July 21, 2006. In accordance with the general rule that governs 
immigration cases, Matter of Alarcon, supra, this final rule will apply 
to any case decided on or after that date, even if the alien filed his 
or her application for an immigrant visa, for admission as an 
immigrant, or for adjustment of status, after December 19, 1997, but 
before July 21, 2006. The interim rule will continue to apply to any 
case adjudicated before July 21, 2006.
    The Secretary of Homeland Security notes that the amendments made 
by this final rule to 8 CFR parts 204 and 205 were not included in the 
interim rule. No further notice and comment, however, is necessary with 
respect to these provisions. First, the addition of these provisions to 
the final rule is a direct result from, and a logical outgrowth of, the 
comments received concerning the impact of a visa petitioner's death on 
the alien beneficiary's case. Second, the Secretary of Homeland 
Security finds good cause that, under 5 U.S.C. 553(b)(3)(B), notice and 
comment on these issues is unnecessary because it is impracticable and 
not in the public interest to delay these provisions since they are not 
adverse to the interests of those affected by them. In fact, the 
provisions will benefit those affected by them, since, without these 
specific amendments, those affected by them would likely be unable to 
immigrate.
    The Attorney General also finds that under 5 U.S.C. 553(b)(3)(B), 
notice and comment concerning the amendments to 8 CFR part 1240 is not 
necessary. These amendments are rules of agency practice and procedure. 
The amendments clarify the authority of an immigration judge to 
adjudicate issues relating to affidavits of support that arise in cases 
that are already within the immigration judge's jurisdiction.

D. Assessment of Regulatory Impact on the Family

    The immigration law facilitates reunification of families by 
according preferences to aliens who are close relatives of citizens and 
resident aliens. The affidavit of support requirement, imposed by the 
Act itself, may make some family members ineligible to immigrate 
because their sponsoring relative cannot satisfy the income 
requirements. This final rule should, however, make it somewhat easier 
to comply with the affidavit of support requirement, thus increasing 
the likelihood that aliens subject to the requirement will be able to 
immigrate. For this reason, DHS has determined, as provided by section 
654 of the 1999 Treasury and General Government Appropriations Act, 
Public Law 105-277, Division A, section 101(h), 112 Stat. 2681, 2681-
528, that the provisions of this final rule that amend 8 CFR parts 204, 
205, 213a, and 299 will not have an adverse impact on the strength or 
stability of the family. For the same reasons, the Attorney General 
makes the same finding with respect to the amendments that this rule 
makes to 8 CFR part 1240.

E. Paperwork Reduction Act

    The information collection requirements contained in this rule 
(Form I-864, Affidavit of Support Under Section 213A of the Act, Form 
I-864EZ, EZ Affidavit of Support, Form I-864A, Contract Between Sponsor 
and Household Member, Form I-864W, Intending Immigrant's I-864 
Exemption and Form I-865, Sponsor's Notice of Change of Address), have 
been previously approved for use by the Office of Management and Budget 
(OMB) under the provisions of the Paperwork Reduction Act (PRA). The 
OMB control numbers for the Forms I-864, I-864A and I-865 are contained 
in 8 CFR 299.5, Display of control numbers. This final rule amends 8 
CFR 299.5 to update the OMB control numbers for those Forms and to add 
the control numbers for the Forms I-864EZ and I-864W.
    As already noted, this final rule also reflects the creation of two 
new Forms. First, USCIS established a new Form I-864EZ, EZ Affidavit of 
support under section 213A. A sponsor may use this Form I-864EZ, 
instead of Form I-864, if the sponsor meets all of these requirements: 
The sponsor is the Form I-130 visa petitioner (and there is no

[[Page 35746]]

need for a joint sponsor or a Form I-864A); the affidavit of support is 
filed on behalf of only one intending immigrant; the sponsor is seeking 
to qualify based on the sponsor's own income alone (not on the basis of 
assets); and all the sponsor's income is shown on IRS Forms W-2. 
Second, USCIS established a new Form I-864W, Intending Immigrant's I-
864 Exemption. An intending immigrant submits the Form I-864W, instead 
of the Form I-864, to establish that the intending immigrant is not 
required to submit the Form I-864 because the intending immigrant (a) 
already has, or can be credited with, 40 quarters of coverage under the 
Social Security Act; (b) is the child of a U.S. citizen, and will 
acquire citizenship under section 320 of the Act if the application for 
admission as an immigrant or for adjustment of status is approved; or 
(c) is the widow(er) of a U.S. citizen or the battered spouse or child 
of a U.S. citizen or permanent resident alien. As noted, the final rule 
adds the OMB Control Number for these Forms to 8 CFR 299.5.

F. Executive Order 12866

    Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 
51735, October 4, 1993, requires a determination whether a regulatory 
action is ``significant'' and therefore subject to review by the Office 
of Management and Budget (OMB). This rule has been identified as 
significant under Executive Order 12866 and has been reviewed by OMB. 
This rule is not considered economically significant under section 3(f) 
of the Executive Order because it will have an annual effect on the 
economy of less than $100 million. DHS notes that the former 
Immigration and Naturalization Service did consider the interim rule to 
be an economically significant regulatory action. The former Service 
did not receive any comments on this estimate. After further 
consideration of the policy impact, we have reexamined how to define 
the baseline. Since it is reasonable to assume that the world absent 
this final regulation will resemble the present, the baseline should 
reflect the future effect of current government programs and policies. 
In this case, DHS forecasts that revisions from the Interim Final rule, 
and current status quo, will have an annual impact far below the $100 
million threshold required for an economically significant regulation.
    This final rule implements provisions of section 423 of the 
Personal Responsibility and Work Opportunity Reconciliation Act of 
1996, Public Law 104-193, as amended by IIRIRA. Under this legislation, 
any family-based immigrant, and in certain cases, an employment-based 
immigrant, is inadmissible as a likely public charge unless an eligible 
sponsor files a legally enforceable affidavit of support.
    Public Law 104-193 also established new requirements limiting the 
ability of aliens--even those who are lawfully admitted for permanent 
residence--to obtain means-tested public benefits. The precise scope of 
these requirements, and of the statutory exceptions, is beyond the 
scope of this final rule since DHS does not administer the affected 
means-tested public benefit programs. DHS has concluded that these 
savings are more properly attributed to these other provisions of 
Public Law 104-193, as amended, rather than the affidavit of support 
requirements created by section 213A of the Act and implemented by the 
interim rule and this final rule. The implementation of section 213A of 
the Act is likely to have an impact on sponsors, sponsored aliens, and 
the Government, but DHS believes that the economic impact has not, 
since the interim rule entered into force, exceeded $100 million in any 
given fiscal year, nor is the impact likely to exceed this threshhold 
in the future.
Background
    If a sponsored immigrant applies for designated Federal means-
tested public benefits, the income and resources of the sponsor and the 
sponsor's spouse are ``deemed'' to be available to the sponsored 
immigrant in determining the sponsored immigrant's eligibility for the 
benefit. The underlying assumption of this deeming provision is that, 
since the sponsor has agreed in the Affidavit of Support to provide 
financial support for an immigrant, then that sponsor's income and 
resources should be taken into account when determining whether a 
sponsored immigrant is eligible for a designated means-tested benefit. 
In most cases, the counting of the sponsor's income and assets as the 
income and assets of the sponsored immigrant means that the sponsored 
immigrant is deemed to have income and assets at a level sufficient to 
make the sponsored immigrant ineligible for the benefit sought. 
Affidavits of support will be enforceable against sponsors by any 
agency providing designated Federal, state, or local means-tested 
benefits, with certain exceptions (notably emergency medical care, 
disaster relief, school lunches, foster care or adoption assistance for 
a child whose foster or adoptive parent is a citizen or a qualified 
alien, student loans, and Head Start benefits) until the sponsored 
immigrants become U.S. citizens or can be credited with 40 quarters of 
work.
    Since the enactment of the first general immigration statute on 
August 3, 1882, the law has required all prospective immigrants to the 
United States to demonstrate that they would not become public charges 
after admission. Section 212(a)(4) of the Immigration and Nationality 
Act (INA), as amended in 1996, provides that immigrants may be 
inadmissible until they provide such evidence. Prior to these new 
public charge provisions and the legally enforceable and mandatory 
affidavit of support requirements specified in the 1996 Personal 
Responsibility and Work Opportunity Reconciliation Act and IIRIRA, 
there were no statutory provisions regarding the requirements or means 
by which prospective immigrants, whether adjusting status through the 
former Immigration and Naturalization Service in the United States or 
obtaining immigrant visas from Department of State consular officers 
overseas, could establish the availability of financial support in the 
United States.
    Before implementation of the 1996 laws, prospective immigrants 
demonstrated to Consular and Immigration officers that they would not 
become public charges through several means, including the prospective 
immigrant's personal funds, savings, or assets; prearranged employment 
in the United States; a public charge bond; a non-binding affidavit of 
support from a relative or friend in the United States who had adequate 
income; or a combination of these methods. Although adequate income was 
not defined in statute or regulation, consular and immigration officers 
often used guidelines published in the Department of State Foreign 
Affairs manual to establish that prospective immigrants would not 
become public charges after entry. These guidelines suggested that, for 
an affidavit of support to be considered a favorable factor in 
establishing that the prospective immigrant would not become a public 
charge, the income of the person signing the affidavit of support 
should be equal to or greater than 100 percent of the applicable 
Federal poverty guideline. Although these non-binding affidavits of 
support were intended for use in assessing the financial support of 
family-based immigrants, they were occasionally filed on behalf of 
other categories of immigrants as well as other groups of aliens such 
as students and parolees. Three Federal programs--Aid to Families with 
Dependent Children (AFDC), Supplemental Security Income

[[Page 35747]]

(SSI), and Food Stamps--included the income of sponsors signing the 
affidavit of support for three years (or, under SSI, five years after 
1992) following the immigrant's entry in considering the financial 
eligibility of sponsored immigrants for their benefit programs. Based 
on research conducted on immigrants admitted in FY 1994, about three-
quarters of all family-based immigrants were sponsored using the 
discretionary affidavit of support.
Impact on Federal and State Benefit Agencies
    The fiscal impact of this final rule is largely on Federal and 
State agencies administering designated means-tested public benefit 
programs, sponsors, and sponsored immigrants. These designated means-
tested programs are required to implement sponsor deeming policies 
(discussed above) as part of determining the eligibility of a sponsored 
immigrant for such means-tested benefits. Sponsor deeming generally 
makes it more difficult for sponsored immigrants to become eligible for 
benefits since the sponsor's income and resources are counted as being 
available to the sponsored immigrant. This addition of a sponsor's 
income to a sponsored immigrant's income usually results in an income 
level that exceeds the level necessary for benefit eligibility. As part 
of this eligibility determination process, Federal and State agencies 
must determine whether a permanent resident applicant for means-tested 
public benefits has a sponsor under section 213A of the Act. To do so, 
agencies can ask the USCIS SAVE Program whether a permanent resident 
applicant has a sponsor under section 213A of the Act, and if so, to 
provide the name, last known address, and Social Security number of 
each sponsor. With this information, the agency can determine whether a 
permanent resident applicant is subject to sponsor deeming policies, 
and will potentially be able to notify the sponsor about the sponsored 
immigrant's application for benefits, as well as to request from a 
sponsor information on his or her current income and assets, as 
appropriate, to be used along with the immigrant's income and assets, 
as appropriate, to determine eligibility for means-tested public 
benefits. Such information is also necessary for an agency to seek 
reimbursement from sponsors for the amount of means-tested benefits 
that might be provided to sponsored immigrants.
Impact on Petitioner and Joint Sponsors
    An alien who seeks admission as an immigrant under section 
201(b)(2) or 203(a) of the Act, whether from abroad or by adjustment of 
status when already in the United States, is inadmissible unless the 
relative petitioning for the alien's admission has completed and signed 
a legally binding and enforceable affidavit of support on behalf of the 
intending immigrant and any accompanying family members. To be 
sufficient to allow the intending immigrant(s) to obtain lawful 
permanent resident status, the petitioner must demonstrate income that 
meets or exceeds 125 percent of the applicable poverty guideline for 
his or her household size, which includes the sponsored intending 
immigrant(s) as well as any other immigrants the petitioner previously 
sponsored and is still obliged to support. If the petitioner cannot 
meet this threshold, one or two joint sponsors who can meet the income 
requirements and who are willing to also submit legally binding 
affidavits of support may do so on behalf of these intending 
immigrants.
    Before enactment of section 213A of the Act, most family-based 
immigrants obtained and submitted a non-binding affidavit of support. 
However, it was not universally the case that the affidavit of support 
was signed by the person who filed the visa petition. Now, under 
section 213A of the Act, each visa petitioner must sign a binding Form 
I-864, Affidavit of Support. Since only three-quarters of new 
immigrants were sponsored using the earlier non-binding affidavit of 
support and about one-quarter of these sponsors were persons other than 
the petitioner, there is an additional requirement for close to half of 
persons seeking the immigration of their relatives. There are 
additionally increased requirements for sponsors to qualify as well as 
new documentary provisions. Therefore, all sponsors have somewhat more 
responsibilities and many have an additional responsibility.
    To complete the affidavit of support, a sponsor must complete Form 
I-864 and assemble the required supporting documentation. Supporting 
immigrants so that they will not become public charges may also impose 
costs on sponsors. These costs are difficult to quantify since in most 
cases the sponsored immigrants will become largely or entirely self-
supporting. Under the sponsorship provisions of the law, however, a 
sponsor is required, as needed, to support each immigrant for whom they 
signed an affidavit of support at 125 percent of the poverty line until 
the sponsorship obligation terminates, usually through the sponsored 
immigrant naturalizing or being credited with 40 qualifying quarters 
under Title II of the Social Security Act.
    Sponsors who sign the new affidavits of support can be held 
responsible for reimbursement of any Federally-funded means-tested 
public benefits, and potentially some State-funded programs, paid to 
sponsored immigrants while the affidavit of support is in effect.
Impact on Sponsored Immigrants
    Sponsored immigrants are affected by the new provisions to the 
extent that they must present the documents to the Federal interviewing 
official and serve as the intermediary between the sponsor and the 
government official for obtaining additional supporting documentation 
or an affidavit of support from an additional or different joint 
sponsor. Sponsored immigrants are also less likely to be eligible for 
any means-tested public benefits since the deeming provisions cover 
more benefit programs and last a longer period of time than under the 
earlier non-binding affidavit of support. Barring submission of a 
sufficient affidavit of support for each immigrating family member, 
intending immigrants may find that their immigration--or that of some 
of their family members--is delayed. New provisions in the final rule 
allow each family unit to have two separate joint sponsors, thus 
reducing situations in which family unification does not occur because 
of the inability to find a joint sponsor who is willing and able to 
support the entire family unit at level specified in the applicable 
poverty guidelines.
Impact on the Administering Agencies
    The interim rule also noted that the affidavit of support 
requirements have imposed some administrative costs on the Federal 
Government agencies administering the affidavit of support. Since all 
petitioners must now submit affidavits of support and a sizeable 
portion of immigrants require one or two joint sponsors, Federal 
officials have considerably more documentation to review. Additionally, 
if needed, certain household members of a sponsor may enter into an 
agreement with the sponsor to provide income to help support the 
sponsored immigrant(s) through signing an I-864A and submitting 
supporting documentation. Deficiencies in submitting complete 
information have increased requests for additional information and 
additional review by Federal officials.
    Federal costs also relate to the printing and distribution of the 
Form I-

[[Page 35748]]

864 and related forms. This cost has been reduced somewhat by the 
availability of the affidavit of support forms for downloading from the 
USCIS Web page. The administrative costs arise, more significantly, 
from the additional time it takes to adjudicate applications for 
immigrant visas or adjustment of status. Before the enactment of 
section 213A of the Act, consular and immigration officers determined 
whether each new immigrant was likely to become a public charge based 
on a variety of factors, including the alien's age, health, and job 
skills; proof of a job offer in the United States; by examining the 
non-binding affidavit of support or by the submission of other 
documentation, including demonstration of significant assets. The use 
of Form I-134 was only one option that was available. The Form I-864, 
by contrast, is required in almost all family-based cases. Because use 
of the Form I-864 is more widespread, and because the statutory 
requirements for an acceptable Form I-864 are exacting, reviewing an 
affidavit of support is considerably more time-consuming now than it 
was before before enactment of section 213A of the Act.
    Some of these costs may be offset by subsequent adjustments to fees 
for immigrant visa and adjustment of status applications, a cost borne 
primarily by new family-based immigrants to the United States. For 
example, section 232 of H.R. 3247, 106th Cong. (1st Sess. 1999), as 
enacted by section 1000(a)(7) of the Consolidated Appropriations Act, 
2000, Public Law 106-113, permits consular officers to assess a fee for 
services designed to ensure that sponsors properly complete affidavits 
of support before they are forwarded to consular officers. Unlike the 
Department of State, DHS does not currently charge an additional filing 
fee when an adjustment of status case includes an affidavit of support. 
Thus, the costs that DHS incurs are not currently offset by application 
fees. The User Fee statute, 31 U.S.C. 9701, may warrant adjusting the 
USCIS fee schedule to include a fee to recover the costs associated 
with reviewing a Form I-864 in connection with an application for 
adjustment of status. The interim rule did not, however, include any 
provision relating to fees. Before adding a filing fee for the Form I-
864 USCIS would, therefore, promulgate a separate rulemaking after a 
new notice and comment period. USCIS must also maintain automated 
sponsorship information on the sponsors of those immigrants who are 
sponsored and make this information available to benefit-providing 
agencies upon request.
    This regulation may also have an economic impact on State and local 
governments, either because they choose to deem sponsor income and 
resources for their own programs or because they choose to make their 
own locally or State-funded assistance programs available to permanent 
residents while they are not eligible for Federal means-tested 
programs. Savings to States from reduced use of Federally funded means-
tested public benefits toward which States match funds may be offset by 
some increased use of locally and State-funded programs. In the absence 
of information about what actions States will choose to take, costs and 
savings to State and local governments are not estimated.

G. Executive Order 13132

    DHS certifies that this regulation will not have substantial direct 
effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. In particular, 
this final rule does not in any way interfere with a State's ability to 
make its own policy choice about whether to attribute a sponsor's 
income and assets to a sponsored immigrant, for purposes of the 
sponsored immigrant's eligibility for State-funded benefits. Therefore, 
in accordance with section 6 of Executive Order 13132, it is determined 
that this rule does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement.
    In this respect it is important to note the decisions of the 
Supreme Court in Printz v. United States, 521 U.S. 898 (1997), and New 
York v. United States, 505 U.S. 144 (1992). In these cases, the Court 
reaffirmed the fundamental constitutional principle that the 
``[f]ederal Government may neither issue directives requiring the 
States to address particular problems, nor command the states' 
officers, or those of their political subdivisions, to administer or 
enforce a Federal regulatory program.'' Printz, 521 U.S. at 918. 
Nothing in section 213A of the Act, nor in this rule, violates this 
principle.
    Whether to have any State-funded means-tested benefits remains a 
matter for each State to determine in accordance with its own 
constitutional processes and policy priorities. It is also for each 
State to determine whether to deem a sponsor's income to the sponsored 
immigrant, in determining a sponsored immigrant's eligibility for any 
State-funded means-tested benefits the state chooses to adopt. It also 
is for each State to determine whether to seek reimbursement from the 
sponsor for any State-funded means-tested benefits an alien may 
improperly receive. No State is required to take any action, other than 
to give public notice of any decision the State makes concerning these 
matters.
    Section 213A of the Act does require a State agency that does want 
to obtain reimbursement to request it before filing suit. But since the 
State agency's right to seek reimbursement from the sponsor, on the 
basis of an affidavit of support, exists solely as a matter of Federal 
law, the requirement to request reimbursement is not a matter of 
compelling the State to administer a federal program. Rather, the 
requirement is simply a condition precedent to the State's exercise of 
a right that would not exist in the absence of section 213A of the Act. 
The States do have certain reporting requirements under section 213A of 
the Act, section 421 of Public Law 104-193, and this rule. But the 
Printz Court expressly refrained from holding that requiring States to 
provide information to the Federal Government violates the principle of 
the Printz decision. 521 U.S. at 918.

H. Executive Order 12988 Civil Justice Reform

    This final rule meets the applicable standards set forth in section 
3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects

8 CFR Part 204

    Administrative practice and procedures, Aliens, Employment, 
Immigration, Petitions.

8 CFR Part 205

    Administrative practice and procedures, Aliens, Immigration, 
Petitions.

8 CFR Part 213a

    Administrative practice and procedures, Aliens, Affidavits of 
support, Immigrants.

8 CFR Part 299

    Aliens, Forms, Immigration, Reporting and recordkeeping 
requirements.

8 CFR Part 1205

    Administrative practice and procedures, Aliens, Immigration, 
Petitions.

8 CFR Part 1240

    Administrative practice and procedure; Immigration.

[[Page 35749]]

Department of Homeland Security

8 CFR CHAPTER I--AUTHORITY AND ISSUANCE

0
Accordingly, for the reasons stated in the joint preamble, and pursuant 
to my authority as Secretary of Homeland Security, the interim rule 
adding 8 CFR part 213a and amending 8 CFR part 299 that was published 
at 62 FR 54346 on October 20, 1997, is adopted as a final rule with the 
following changes, and 8 CFR parts 204 and 205 are amended as follows:

PART 204--IMMIGRANT PETITIONS

0
1. The authority citation for part 204 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 
1255, 1641; 8 CFR part 2.


0
2. Section 204.2 is amended by adding a new paragraph (i)(1)(iv) to 
read as follows:


Sec.  204.2  Petitions for relatives, widows and widowers, and abused 
spouses and children.

* * * * *
    (i) * * *
    (1) * * *
    (iv) A currently valid visa petition previously approved to 
classify the beneficiary as an immediate relative as the spouse of a 
United States citizen must be regarded, upon the death of the 
petitioner, as having been approved as a Form I-360, Petition for 
Amerasian, Widow(er) or Special Immigrant for classification under 
paragraph (b) of this section, if, on the date of the petitioner's 
death, the beneficiary satisfies the requirements of paragraph (b)(1) 
of this section. If the petitioner dies before the petition is 
approved, but, on the date of the petitioner's death, the beneficiary 
satisfies the requirements of paragraph (b)(1) of this section, then 
the petition shall be adjudicated as if it had been filed as a Form I-
360, Petition for Amerasian, Widow(er) or Special Immigrant under 
paragraph (b) of this section.
* * * * *

PART 205--REVOCATION OF APPROVAL OF PETITIONS

0
3. The authority citation for part 205 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, 
and 1186a.


0
4. Section 205.1 is amended by revising paragraph (a)(3)(i)(C) to read 
as follows:


Sec.  205.1  Automatic revocation.

    (a) * * *
    (3) * * *
    (i) * * *
    (C) Upon the death of the petitioner, unless:
    (1) The petition is deemed under 8 CFR 204.2(i)(1)(iv) to have been 
approved as a Form I-360, Petition for Amerasian, Widow(er) or Special 
Immigrant under 8 CFR 204.2(b); or
    (2) U.S. Citizenship and Immigration Services (USCIS) determines, 
as a matter of discretion exercised for humanitarian reasons in light 
of the facts of a particular case, that it is inappropriate to revoke 
the approval of the petition. USCIS may make this determination only if 
the principal beneficiary of the visa petition asks for reinstatement 
of the approval of the petition and establishes that a person related 
to the principal beneficiary in one of the ways described in section 
213A(f)(5)(B) of the Act is willing and able to file an affidavit of 
support under 8 CFR part 213a as a substitute sponsor.
* * * * *

PART 213a--AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS

0
5. The authority citation for part 213a continues to read as follows:

    Authority: 8 U.S.C. 1183a; 8 CFR part 2.


0
6. Section 213a.1 is amended by:
0
a. Revising the definitions for ``Domicile'', ``Household income'', 
``Household size'', ``Income'', ``Sponsor'' and ``Sponsored immigrant'' 
and by
0
b. Adding the definitions for ``Joint sponsor'' and ``Substitute 
sponsor'' in proper alphabetical sequence.
    The revisions and addition read as follows:


Sec.  213a.1  Definitions.

* * * * *
    Domicile means the place where a sponsor has his or her principal 
residence, as defined in section 101(a)(33) of the Act, with the 
intention to maintain that residence for the foreseeable future.
* * * * *
    Household income means the income used to determine whether the 
sponsor meets the minimum income requirements under sections 
213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) of the Act. It includes the 
income of the sponsor, and of the sponsor's spouse and any other person 
included in determining the sponsor's household size, if the spouse or 
other person is at least 18 years old and has signed a U.S. Citizenship 
and Immigration Services (USCIS) Form I-864A, Affidavit of Support 
Contract Between Sponsor and Household Member, on behalf of the sponsor 
and intending immigrants. The ``household income'' may not, however, 
include the income of an intending immigrant, unless the intending 
immigrant is either the sponsor's spouse or has the same principal 
residence as the sponsor and the preponderance of the evidence shows 
that the intending immigrant's income results from the intending 
immigrant's lawful employment in the United States or from some other 
lawful source that will continue to be available to the intending 
immigrant after he or she acquires permanent resident status. The 
prospect of employment in the United States that has not yet actually 
begun will not be sufficient to meet this requirement.
    Household size means the number obtained by adding the number of 
persons specified in this definition. In calculating household size, no 
individual shall be counted more than once. If the intending 
immigrant's spouse or child is a citizen or already holds the status of 
an alien lawfully admitted for permanent residence, then the sponsor 
should not include that spouse or child in determining the total 
household size, unless the intending immigrant's spouse or child is a 
dependent of the sponsor.
    (1) In all cases, the household size includes the sponsor, the 
sponsor's spouse and all of the sponsor's children, as defined in 
section 101(b)(1) of the Act (other than a stepchild who meets the 
requirements of section 101(b)(1)(B) of the Act, if the stepchild does 
not reside with the sponsor, is not claimed by the sponsor as a 
dependent for tax purposes, and is not seeking to immigrate based on 
the stepparent/stepchild relationship), unless these children have 
reached the age of majority under the law of the place of domicile and 
the sponsor did not claim them as dependents on the sponsor's Federal 
income tax return for the most recent tax year. The following persons 
must also be included in calculating the sponsor's household size: Any 
other persons (whether related to the sponsor or not) whom the sponsor 
has claimed as dependents on the sponsor's Federal income tax return 
for the most recent tax year, even if such persons do not have the same 
principal residence as the sponsor, plus the number of aliens the 
sponsor has sponsored under any other Forms I-864 for whom the 
sponsor's support obligation has not terminated, plus the number of 
aliens to be sponsored under the current Form I-864, even if such 
aliens do not or will not have the same principal residence as the 
sponsor. If a child, as defined in section 101(b)(1) of the Act, or 
spouse of the principal intending immigrant is

[[Page 35750]]

an alien who does not currently reside in the United States and who 
either is not seeking to immigrate at the same time as, or will not 
seek to immigrate within six months of the principal intending 
immigrant's immigration, the sponsor may exclude that child or spouse 
in calculating the sponsor's household size.
    (2) If the sponsor chooses to do so, the sponsor may add to the 
number of persons specified in the first part of this definition the 
number of relatives (as defined in this section) of the sponsor who 
have the same principal residence as the sponsor and whose income will 
be relied on to meet the requirements of section 213A of the Act and 
this part.
* * * * *
    Income means an individual's total income (adjusted gross income 
for those who file IRS Form 1040EZ) for purposes of the individual's 
U.S. Federal income tax liability, including a joint income tax return 
(e.g., line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 
1040A, or line 4 on the 2004 IRS Form 1040EZ or the corresponding line 
on any future revision of these IRS Forms). Only an individual's 
Federal income tax return--that is, neither a state or territorial 
income tax return nor an income tax return filed with a foreign 
government--shall be filed with an affidavit of support, unless the 
individual had no duty to file a Federal income tax return, and claims 
that his or her state, territorial or foreign taxable income is 
sufficient to establish the sufficiency of the affidavit of support.
* * * * *
    Joint sponsor means any individual who meets the requirements of 
section 213A(f)(1)(A), (B), (C), and (E) of the Act and 8 CFR 
213a.2(c)(1)(i), and who, as permitted by section 213A(f)(5)(A) of the 
Act, is willing to submit a Form I-864 and accept joint and several 
liability with the sponsor or substitute sponsor, in any case in which 
the sponsor's or substitute sponsor's household income is not 
sufficient to satisfy the requirements of section 213A of the Act.
* * * * *
    Sponsor means an individual who is either required to execute or 
has executed a Form I-864 under this part.
    Sponsored immigrant means any alien who was an intending immigrant, 
once that person has been lawfully admitted for permanent residence, so 
that the affidavit of support filed for that person under this part has 
entered into force.
    Substitute sponsor means an individual who meets the requirements 
of section 213A(f)(1)(A), (B), (C), and (E) of the Act and 8 CFR 
213a.2(c)(1)(i), who is related to the principal intending immigrant in 
one of the ways described in section 213A(f)(5)(B) of the Act, and who 
is willing to sign a Form I-864 in place of the now-deceased person who 
filed the Form I-130 or Form I-129F that provides the basis for the 
intending immigrant's ability to seek permanent residence.

0
7. Section 213a.2 is amended by:
0
a. Revising paragraphs (a)(1) and (a)(2)(i)(A) and (C);
0
b. Removing the ``or'' at the end of paragraph (a)(2)(ii)(A);
0
c. Revising paragraph (a)(2)(ii)(B);
0
d. Adding new paragraphs (a)(2)(ii)(C), (D), and (E);
0
e. Revising paragraphs (b)(1) and (b)(2);
0
f. Revising paragraphs (c), (e), and (f); and by
0
g. Adding paragraph (g).
    The revisions and additions read as follows:


Sec.  213a.2  Use of affidavit of support.

    (a) General. (1)(i)(A) In any case specified in paragraph (a)(2) of 
this section, an intending immigrant is inadmissible as an alien likely 
to become a public charge, unless the qualified sponsor specified in 
paragraph (b) of this section or a substitute sponsor and, if 
necessary, a joint sponsor, has executed on behalf of the intending 
immigrant a Form I-864, Affidavit of Support Under Section 213A of the 
Act, in accordance with section 213A of the Act, this section, and the 
instructions on Form I-864. The sponsor may use the Form I-864EZ, EZ 
Affidavit of Support Under Section 213A of the Act, rather than the 
Form I-864, if the sponsor meets the eligibility requirements on the 
instructions for the Form I-864EZ. Each reference in this section to 
Form I-864 is deemed to be a reference to Form I-864EZ for any case in 
which the sponsor is eligible to use the Form I-864EZ.
    (B) If the intending immigrant claims that, under paragraph 
(a)(2)(ii)(A), (C), or (E) of this section, the intending immigrant is 
exempt from the requirement to file a Form I-864, the intending 
immigrant must include with his or her application for an immigrant 
visa or adjustment of status a properly completed Form I-864W, 
Intending Immigrant's I-864 Exemption.
    (ii) An affidavit of support is executed when a sponsor signs a 
Form I-864 and that Form I-864 is submitted, together with the current 
edition of Form I-864P and the initial evidence required by this 
section, in accordance with this paragraph. The current edition Form I-
864P is available on the Internet at http://www.uscis.gov/graphics/formsfee/forms. Those without Internet access may call (800) 870-3676 
to obtain the Form I-864P.
    (A) If the intending immigrant is applying for an immigrant visa, 
the intending immigrant must submit the Form I-864 (and any Forms I-
864A) to the Department of State officer with jurisdiction over the 
intending immigrant's application for an immigrant visa, in accordance 
with instructions from the Department of State officer or the National 
Visa Center;
    (B) If the intending immigrant is applying for adjustment of 
status, the intending immigrant must submit the Form I-864 (and any 
Forms I-864A) with the application for adjustment of status.
    (iii) There must be a separate Form I-864 (and any Form(s) I-864A), 
with original signatures, for each principal visa petition beneficiary.
    (iv) Each immigrant who will accompany the principal intending 
immigrant must be included on Form I-864 (and any Forms I-864A). See 
paragraph (f) of this section for further information concerning 
immigrants who intend to accompany or follow the principal intending 
immigrant to the United States.
    (v)(A) Except as provided for under paragraph (a)(1)(v)(B) of this 
section, the Department of State officer, immigration officer, or 
immigration judge shall determine the sufficiency of a Form I-864 or I-
864A based on the sponsor's, substitute sponsor's, or joint sponsor's 
reasonably expected household income in the year in which the intending 
immigrant filed the application for an immigrant visa or for adjustment 
of status, and based on the evidence submitted with the Form I-864 or 
Form I-864A and the Poverty Guidelines in effect when the intending 
immigrant filed the application for an immigrant visa or adjustment of 
status.
    (B) If more than one year passes between the filing of the Form I-
864 or Form I-864A and the hearing, interview, or examination of the 
intending immigrant concerning the intending immigrant's application 
for an immigrant visa or adjustment of status, and the Department of 
State officer, immigration officer or immigration judge determines, in 
the exercise of discretion, that the particular facts of the case make 
the submission of additional evidence necessary to the proper 
adjudication of the case, then the Department of State officer, 
immigration officer or immigration judge may direct the intending 
immigrant to submit additional evidence. A Department of State officer 
or immigration officer shall make the request in writing, and provide 
the intending immigrant not

[[Page 35751]]

less than 30 days to submit the additional evidence. An immigration 
judge may direct the intending immigrant to submit additional evidence 
and also set the deadline for submission of the initial evidence in any 
manner permitted under subpart C of 8 CFR part 1003 and any local rules 
of the Immigration Court. If additional evidence is required under this 
paragraph, an intending immigrant must submit additional evidence 
(including copies or transcripts of any income tax returns for the most 
recent tax year) concerning the income or employment of the sponsor, 
substitute sponsor, joint sponsor, or household member in the year in 
which the Department of State officer, immigration officer, or 
immigration judge makes the request for additional evidence. In this 
case, the sufficiency of the Form I-864 and any Form I-864A will be 
determined based on the sponsor's, substitute sponsor's, or joint 
sponsor's reasonably expected household income in the year the 
Department of State officer, immigration officer or immigration judge 
makes the request for additional evidence, and based on the evidence 
submitted in response to the request for additional evidence and on the 
Poverty Guidelines in effect when the request for evidence was issued.
    (2)(i) * * *
    (A) An immediate relative under section 201(b)(2)(A)(i) of the Act, 
including orphans and any alien admitted as a K nonimmigrant when the 
alien seeks adjustment of status;
* * * * *
    (C) An employment-based immigrant under section 203(b) of the Act, 
if a relative (as defined in 8 CFR 213a.1) of the intending immigrant 
is a citizen or an alien lawfully admitted for permanent residence who 
either filed the employment-based immigrant petition or has a 
significant ownership interest in the entity that filed the immigrant 
visa petition on behalf of the intending immigrant. An affidavit of 
support under this section is not required, however, if the relative is 
a brother or sister of the intending immigrant, unless the brother or 
sister is a citizen.
    (ii) * * *
    (B) Seeks admission as an immigrant on or after December 19, 1997, 
in a category specified in paragraph (a)(2)(i) of this section with an 
immigrant visa issued on the basis of an immigrant visa application 
filed with the Department of State officer before December 19, 1997;
    (C) Establishes, on the basis of the alien's own Social Security 
Administration record or those of his or her spouse or parent(s), that 
he or she has already worked, or under section 213A(a)(3)(B) of the 
Act, can already be credited with, 40 qualifying quarters of coverage 
as defined under title II of the Social Security Act, 42 U.S.C. 401, et 
seq;
    (D) Is a child admitted under section 211(a) of the Act and 8 CFR 
211.1(b)(1); or
    (E) Is the child of a citizen, if the child is not likely to become 
a public charge (other than because of the provision of section 
212(a)(4)(C) of the Act), and the child's lawful admission for 
permanent residence will result automatically in the child's 
acquisition of citizenship under section 320 of the Act, as amended. 
This exception applies to an alien orphan if the citizen parent(s) has 
(or have) legally adopted the alien orphan before the alien orphan's 
acquisition of permanent residence, and if both adoptive parents 
personally saw and observed the alien orphan before or during the 
foreign adoption proceeding. An affidavit of support under this part is 
still required if the citizen parent(s) will adopt the alien orphan in 
the United States only after the alien orphan's acquisition of 
permanent residence. If the citizen parent(s) adopted the alien orphan 
abroad, but at least one of the adoptive parents did not see and 
observe the alien orphan before or during the foreign adoption 
proceeding, then an affidavit of support under this part is still 
required, unless the citizen parent establishes that, under the law of 
the State of the alien orphan's intended residence in the United 
States, the foreign adoption decree is entitled to recognition without 
the need for a formal administrative or judicial proceeding in the 
State of proposed residence.
    (b) * * *
    (1) For immediate relatives and family-based immigrants. The person 
who filed the Form I-130 or Form I-600 immigrant visa petition (or the 
Form I-129F petition, for a K nonimmigrant seeking adjustment), the 
approval of which forms the basis of the intending immigrant's 
eligibility to apply for an immigrant visa or adjustment of status as 
an immediate relative or a family-based immigrant, must execute a Form 
I-864 on behalf of the intending immigrant. If the intending immigrant 
is the beneficiary of more than one approved immigrant visa petition, 
it is the person who filed the petition that is actually the basis for 
the intending immigrant's eligibility to apply for an immigrant visa or 
adjustment of status who must file the Form I-864.
    (2) For employment-based immigrants. A relative of an intending 
immigrant seeking an immigrant visa under section 203(b) of the Act 
must file a Form I-864 if the relative either filed the immigrant visa 
petition on behalf of the intending immigrant or owns a significant 
ownership interest in an entity that filed an immigrant visa petition 
on behalf of the intending immigrant, but only if the relative is a 
citizen or an alien lawfully admitted for permanent residence. If the 
intending immigrant is the beneficiary of more than one relative's 
employment-based immigrant visa petition, it is the relative who filed 
the petition that is actually the basis for the intending immigrant's 
eligibility to apply for an immigrant visa or adjustment of status who 
must file the Form I-864.
    (c) Sponsorship requirements. (1)(i) General. A sponsor must be:
    (A) At least 18 years of age;
    (B) Domiciled in the United States or any territory or possession 
of the United States; and
    (C)(1) A citizen or an alien lawfully admitted for permanent 
residence in the case described in paragraph (a)(2)(i) of this section; 
or
    (2) A citizen or national or an alien lawfully admitted for 
permanent residence if the individual is a substitute sponsor or joint 
sponsor.
    (ii) Determination of domicile. (A) If the sponsor is residing 
abroad, but only temporarily, the sponsor bears the burden of proving, 
by a preponderance of the evidence, that the sponsor's domicile (as 
that term is defined in 8 CFR 213a.1) remains in the United States, 
provided, that a permanent resident who is living abroad temporarily is 
considered to be domiciled in the United States if the permanent 
resident has applied for and obtained the preservation of residence 
benefit under section 316(b) or section 317 of the Act, and provided 
further, that a citizen who is living abroad temporarily is considered 
to be domiciled in the United States if the citizen's employment abroad 
meets the requirements of section 319(b)(1) of the Act.
    (B) If the sponsor is not domiciled in the United States, the 
sponsor can still sign and submit a Form I-864 so long as the sponsor 
satisfies the Department of State officer, immigration officer, or 
immigration judge, by a preponderance of the evidence, that the sponsor 
will establish a domicile in the United States on or before the date of 
the principal intending immigrant's admission or adjustment of status. 
The intending immigrant will be inadmissible under section 212(a)(4) of 
the Act, and the immigration officer or immigration judge must deny the 
intending

[[Page 35752]]

immigrant's application for admission or adjustment of status, if the 
sponsor has not, in fact, established a domicile in the United States 
on or before the date of the decision on the principal intending 
immigrant's application for admission or adjustment of status. In the 
case of a sponsor who comes to the United States intending to establish 
his or her principal residence in the United States at the same time as 
the principal intending immigrant's arrival and application for 
admission at a port-of-entry, the sponsor shall be deemed to have 
established a domicile in the United States for purposes of this 
paragraph, unless the sponsor is also a permanent resident alien and 
the sponsor's own application for admission is denied and the sponsor 
leaves the United States under a removal order or as a result of the 
sponsor's withdrawal of the application for admission.
    (2) Demonstration of ability to support intending immigrants. In 
order for the intending immigrant to overcome the public charge ground 
of inadmissibility, the sponsor must demonstrate the means to maintain 
the intending immigrant at an annual income of at least 125 percent of 
the Federal poverty line. If the sponsor is on active duty in the Armed 
Forces of the United States (other than active duty for training) and 
the intending immigrant is the sponsor's spouse or child, the sponsor's 
ability to maintain income must equal at least 100 percent of the 
Federal poverty line.
    (i) Proof of income. (A) The sponsor must include with the Form I-
864 either a photocopy or an Internal Revenue Service-issued transcript 
of his or her complete Federal income tax return for the most recent 
taxable year (counting from the date of the signing, rather than the 
filing, of the Form I-864). However, the sponsor may, at his or her 
option, submit tax returns for the three most recent years if the 
sponsor believes that these additional tax returns may help in 
establishing the sponsor's ability to maintain his or her income at the 
applicable threshold set forth in Form I-864P, Poverty Guidelines. 
Along with each transcript or photocopy, the sponsor must also submit 
as initial evidence copies of all schedules filed with each return and 
(if the sponsor submits a photocopy, rather than an IRS transcript of 
the tax return(s)) all Forms W-2 (if the sponsor relies on income from 
employment) and Forms 1099 (if the sponsor relies on income from 
sources documented on Forms 1099) in meeting the income threshold. The 
sponsor may also include as initial evidence: Letter(s) evidencing his 
or her current employment and income, paycheck stub(s) (showing 
earnings for the most recent six months, financial statements, or other 
evidence of the sponsor's anticipated household income for the year in 
which the intending immigrant files the application for an immigrant 
visa or adjustment of status. By executing Form I-864, the sponsor 
certifies under penalty of perjury under United States law that the 
evidence of his or her current household income is true and correct and 
that each transcript or photocopy of each income tax return is a true 
and correct transcript or photocopy of the return that the sponsor 
filed with the Internal Revenue Service for that taxable year.
    (B) If the sponsor had no legal duty to file a Federal income tax 
return for the most recent tax year, the sponsor must explain why he or 
she had no legal duty to a file a Federal income tax return for that 
year. If the sponsor claims he or she had no legal duty to file for any 
reason other than the level of the sponsor's income for that year, the 
initial evidence submitted with the Form I-864 must also include any 
evidence of the amount and source of the income that the sponsor claims 
was exempt from taxation and a copy of the provisions of any statute, 
treaty, or regulation that supports the claim that he or she had no 
duty to file an income tax return with respect to that income. If the 
sponsor had no legal obligation to file a Federal income tax return, he 
or she may submit other evidence of annual income. The fact that a 
sponsor had no duty to file a Federal income tax return does not 
relieve the sponsor of the duty to file Form I-864.
    (C)(1) The sponsor's ability to meet the income requirement will be 
determined based on the sponsor's household income. In establishing the 
household income, the sponsor may rely entirely on his or her personal 
income, if it is sufficient to meet the income requirement. The sponsor 
may also rely on the income of the sponsor's spouse and of any other 
person included in determining the sponsor's household size, if the 
spouse or other person is at least 18 years old and has completed and 
signed a Form I-864A. A person does not need to be a U.S. citizen, 
national, or alien lawfully admitted for permanent residence in order 
to sign a Form I-864A.
    (2) Each individual who signs Form I-864A agrees, in consideration 
of the sponsor's signing of the Form I-864, to provide to the sponsor 
as much financial assistance as may be necessary to enable the sponsor 
to maintain the intending immigrants at the annual income level 
required by section 213A(a)(1)(A) of the Act, to be jointly and 
severally liable for any reimbursement obligation that the sponsor may 
incur, and to submit to the personal jurisdiction of any court that has 
subject matter jurisdiction over a civil suit to enforce the contract 
or the affidavit of support. The sponsor, as a party to the contract, 
may bring suit to enforce the contract. The intending immigrants and 
any Federal, state, or local agency or private entity that provides a 
means-tested public benefit to an intending immigrant are third party 
beneficiaries of the contract between the sponsor and the other 
individual or individuals on whose income the sponsor relies and may 
bring an action to enforce the contract in the same manner as third 
party beneficiaries of other contracts.
    (3) If there is no spouse or child immigrating with the intending 
immigrant, then there will be no need for the intending immigrant to 
sign a Form I-864A, even if the sponsor will rely on the continuing 
income of the intending immigrant to meet the income requirement. If, 
however, the sponsor seeks to rely on an intending immigrant's 
continuing income to establish the sponsor's ability to support the 
intending immigrant's spouse or children, then the intending immigrant 
whose income is to be relied on must sign the Form I-864A.
    (4) If the sponsor relies on the income of any individual who has 
signed Form I-864A, the sponsor must also include with the Form I-864 
and Form I-864A, with respect to the person who signed the Form I-864A, 
the initial evidence required under paragraph (c)(2)(i)(A) of this 
section. The household member's tax return(s) must be for the same tax 
year as the sponsor's tax return(s). An individual who signs Form I-
864A certifies, under penalty of perjury, that the submitted transcript 
or photocopy of the tax return is a true and correct transcript or 
photocopy of the Federal income tax return filed with the Internal 
Revenue Service, and that the information concerning that person's 
employment and income is true and correct.
    (5) If the person who signs the Form I-864A is not an intending 
immigrant, and is any person other than the sponsor's spouse or a 
claimed dependent of the sponsor, the sponsor must also attach proof 
that the person is a relative (as defined in 8 CFR 213a.1) of the 
sponsor and that the Form I-864A signer has the same principal 
residence as the sponsor. If an intending immigrant signs a Form I-
864A, the sponsor must also provide proof that the sponsored immigrant 
has the same principal residence as the sponsor,

[[Page 35753]]

unless the sponsored immigrant is the sponsor's spouse.
    (D) Effect of failure to file income tax returns. If a sponsor, 
substitute sponsor, joint sponsor, or household member did not file a 
Federal income tax return for the year for which a transcript or 
photocopy must be provided, the Form I-864 or Form I-864A will not be 
considered sufficient to satisfy the requirements of section 213A of 
the Act, even if the household income meets the requirements of section 
213A of the Act, unless the sponsor, substitute sponsor, joint sponsor, 
or household member proves, by a preponderance of the evidence, that he 
or she had no duty to file. If the sponsor, substitute sponsor, joint 
sponsor or household member cannot prove that he or she had no duty to 
file, then the Form I-864 or Form I-864A will not be considered 
sufficient to satisfy the requirements of section 213A of the Act until 
the sponsor, substitute sponsor, joint sponsor, or household member 
proves that he or she has satisfied the obligation to file the tax 
return and provides a transcript or copy of the return.
    (ii) Determining the sufficiency of an affidavit of support. The 
sufficiency of an affidavit of support shall be determined in 
accordance with this paragraph.
    (A) Income. The sponsor must first calculate the total income 
attributable to the sponsor under paragraph (c)(2)(i)(C) of this 
section for the year in which the intending immigrant filed the 
application for an immigrant visa or adjustment of status.
    (B) Number of persons to be supported. The sponsor must then 
determine his or her household size as defined in 8 CFR 213a.1.
    (C) Sufficiency of income. Except as provided in this paragraph, or 
in paragraph (a)(1)(v)(B) of this section, the sponsor's affidavit of 
support shall be considered sufficient to satisfy the requirements of 
section 213A of the Act and this section if the reasonably expected 
household income for the year in which the intending immigrant filed 
the application for an immigrant visa or adjustment of status, 
calculated under paragraph (c)(2)(iii)(A) of this section, would equal 
at least 125 percent of the Federal poverty line for the sponsor's 
household size as defined in 8 CFR 213a.1, under the Poverty Guidelines 
in effect when the intending immigrant filed the application for an 
immigrant visa or for adjustment of status, except that the sponsor's 
income need only equal at least 100 percent of the Federal poverty line 
for the sponsor's household size, if the sponsor is on active duty 
(other than for training) in the Armed Forces of the United States and 
the intending immigrant is the sponsor's spouse or child. The sponsor's 
household income for the year in which the intending immigrant filed 
the application for an immigrant visa or adjustment of status shall be 
given the greatest evidentiary weight; any tax return and other 
information relating to the sponsor's financial history will serve as 
evidence tending to show whether the sponsor is likely to be able to 
maintain his or her income in the future. If the projected household 
income for the year in which the intending immigrant filed the 
application for an immigrant visa or adjustment of status meets the 
applicable income threshold, the affidavit of support may be held to be 
insufficient on the basis of the household income but only if, on the 
basis of specific facts, including a material change in employment or 
income history of the sponsor, substitute sponsor, joint sponsor or 
household member, the number of aliens included in Forms I-864 that the 
sponsor has signed but that have not yet entered into force in 
accordance with paragraph (e) of this section, or other relevant facts, 
it is reasonable to infer that the sponsor will not be able to maintain 
his or her household income at a level sufficient to meet his or her 
support obligations.
    (iii) Inability to meet income requirement. (A) If the sponsor is 
unable to meet the minimum income requirement in paragraph (c)(2)(iii) 
of this section, the intending immigrant is inadmissible under section 
212(a)(4) of the Act unless:
    (1) The sponsor, the intending immigrant or both, can meet the 
significant assets provision of paragraph (c)(2)(iv)(B) of this 
section; or
    (2) A joint sponsor executes a separate Form I-864.
    (B) Significant assets. The sponsor may submit evidence of the 
sponsor's ownership of significant assets, such as savings accounts, 
stocks, bonds, certificates of deposit, real estate, or other assets. 
An intending immigrant may submit evidence of the intending immigrant's 
assets as a part of the affidavit of support, even if the intending 
immigrant is not required to sign a Form I-864A. The assets of any 
person who has signed a Form I-864A may also be considered in 
determining whether the assets are sufficient to meet this requirement. 
To qualify as ``significant assets'' the combined cash value of all the 
assets (the total value of the assets less any offsetting liabilities) 
must exceed:
    (1) If the intending immigrant is the spouse or child of a United 
States citizen (and the child has reached his or her 18th birthday), 
three times the difference between the sponsor's household income and 
the Federal poverty line for the sponsor's household size (including 
all immigrants sponsored in any affidavit of support in force or 
submitted under this section);
    (2) If the intending immigrant is an alien orphan who will be 
adopted in the United States after the alien orphan acquires permanent 
residence (or in whose case the parents will need to seek a formal 
recognition of a foreign adoption under the law of the State of the 
intending immigrant's proposed residence because at least one of the 
parents did not see the child before or during the adoption), and who 
will, as a result of the adoption or formal recognition of the foreign 
adoption, acquire citizenship under section 320 of the Act, the 
difference between the sponsor's household income and the Federal 
poverty line for the sponsor's household size (including all immigrants 
sponsored in any affidavit of support in force or submitted under this 
section);
    (3) In all other cases, five times the difference between the 
sponsor's household income and the Federal poverty line for the 
sponsor's household size (including all immigrants sponsored in any 
affidavit of support in force or submitted under this section).
    (C) Joint sponsor. A joint sponsor must execute a separate Form I-
864 on behalf of the intending immigrant(s) and be willing to accept 
joint and several liability with the sponsor or substitute sponsor. A 
joint sponsor must meet all the eligibility requirements under 
paragraph (c)(1) of this section, except that the joint sponsor does 
not have to have filed a visa petition on behalf of the intending 
immigrant. The joint sponsor must demonstrate his or her ability to 
support the intending immigrant in the manner specified in paragraph 
(c)(2) of this section. A joint sponsor's household income must meet or 
exceed the income requirement in paragraph (c)(2)(iii) of this section 
unless the joint sponsor can demonstrate significant assets as provided 
in paragraph (c)(2)(iv)(A) of this section. The joint sponsor's 
household income must equal at least 125% of the Poverty Guidelines for 
the joint sponsor's household size, unless the joint sponsor is on 
active duty in the Armed Forces and the intending immigrant is the 
joint sponsor's spouse or child, in which case the joint sponsor's 
household income is sufficient if it equals at least 100% of

[[Page 35754]]

the Poverty Guidelines for the joint sponsor's household size. An 
intending immigrant may not have more than one joint sponsor, but, if 
the joint sponsor's household income is not sufficient to meet the 
income requirement with respect to the principal intending immigrant, 
any spouse and all the children who, under section 203(d) of the Act, 
seek to accompany the principal intending immigrant, then the joint 
sponsor may specify on the Form I-864 that the Form I-864 is submitted 
only on behalf of the principal intending immigrant and those 
accompanying family members specifically listed on the Form I-864. The 
remaining accompanying family members will then be inadmissible under 
section 212(a)(4) of the Act unless a second joint sponsor submits a 
Form I-864 on behalf of all the remaining family members who seek to 
accompany the principal intending immigrant and who are not included in 
the first joint sponsor's Form I-864. There may not be more than two 
joint sponsors for the family group consisting of the principal 
intending immigrant and the accompanying spouse and children who will 
accompany the principal intending immigrant.
    (D) Substitute sponsor. In a family-sponsored case, if the visa 
petitioner dies after approval of the visa petition, but the U.S. 
Citizenship and Immigration Services determines, under 8 CFR 
205.1(a)(3)(i)(C), that for humanitarian reasons it would not be 
appropriate to revoke approval of the visa petition, then a substitute 
sponsor, as defined in 8 CFR 213a.1, may sign the Form I-864. The 
substitute sponsor must meet all the requirements of this section that 
would have applied to the visa petitioner, had the visa petitioner 
survived and been the sponsor. The substitute sponsor's household 
income must equal at least 125% of the Poverty Guidelines for the 
substitute sponsor's household size, unless the intending immigrant is 
the substitute sponsor's spouse or child and the substitute sponsor is 
on active duty in the Armed Forces (other than active duty for 
training), in which case the substitute sponsor's household income is 
sufficient if it equals at least 100% of the Poverty Guidelines for the 
substitute sponsor's household size. If the substitute sponsor's 
household income is not sufficient to meet the requirements of section 
213A(a)(f)(1)(E) of the Act and paragraph (c)(2) of this section, the 
alien will be inadmissible unless a joint sponsor signs a Form I-864.
    (iv) Remaining inadmissibility on public charge grounds. 
Notwithstanding the filing of a sufficient affidavit of support under 
section 213A of the Act and this section, an alien may be found to be 
inadmissible under section 212(a)(4) of the Act if the alien's case 
includes evidence of specific facts that, when considered in light of 
section 212(a)(4)(B) of the Act, support a reasonable inference that 
the alien is likely at any time to become a public charge.
    (v) Verification of employment, income, and assets. The Federal 
Government may pursue verification of any information provided on or 
with Form I-864, including information on employment, income, or 
assets, with the employer, financial or other institutions, the 
Internal Revenue Service, or the Social Security Administration. To 
facilitate this verification process, the sponsor, joint sponsor, 
substitute sponsor, or household member must sign and submit any 
necessary waiver form when directed to do so by the immigration 
officer, immigration judge, or Department of State officer who has 
jurisdiction to adjudicate the case to which the Form I-864 or I-864A 
relates. A sponsor's, substitute sponsor's, joint sponsor's, or 
household member's failure or refusal to sign any waiver needed to 
verify the information when directed to do so constitutes a withdrawal 
of the Form I-864 or I-864A, so that, in adjudicating the intending 
immigrant's application for an immigrant visa or adjustment of status, 
the Form I-864 or Form I-864A will be deemed not to have been filed.
    (vi) Effect of fraud or material concealment or misrepresentation. 
A Form I-864 or Form I-864A is insufficient to satisfy the requirements 
of section 213A of the Act and this part, and the affidavit of support 
shall be found insufficient to establish that the intending immigrant 
is not likely to become a public charge, if the Department of State 
officer, immigration officer or immigration judge finds that Form I-864 
or Form I-864A is forged, counterfeited, or otherwise falsely executed, 
or if the Form I-864 or Form I-864A conceals or misrepresents facts 
concerning household size, household income, employment history, or any 
other material fact. Any person who knowingly participated in the 
forgery, counterfeiting, or false production of a Form I-864 or Form I-
864A, or in any concealment or misrepresentation of any material fact, 
may be subject to a civil penalty under section 274C of the Act, to 
criminal prosecution, or to both, to the extent permitted by law. If 
the person is an alien, the person may also be subject to removal from 
the United States.
* * * * *
    (e) Commencement and termination of support obligation. (1) With 
respect to any intending immigrant, the support obligation and change 
of address obligation imposed on a sponsor, substitute sponsor, or 
joint sponsor under Form I-864, and any household member's support 
obligation under Form I-864A, all begin when the immigration officer or 
the immigration judge grants the intending immigrant's application for 
admission as an immigrant or for adjustment of status on the basis of 
an application for admission or adjustment that included the Form I-864 
or Form I-864A. Any person completing and submitting a Form I-864 as a 
joint sponsor or a Form I-864A as a household member is not bound to 
any obligations under section 213A of the Act if, notwithstanding his 
or her signing of a Form I-864 or Form I-864A, the Department of State 
officer (in deciding an application for an immigrant visa) or the 
immigration officer or immigration judge (in deciding an application 
for admission or adjustment of status) includes in the decision a 
specific finding that the sponsor or substitute sponsor's own household 
income is sufficient to meet the income requirements under section 213A 
of the Act.
    (2)(i) The support obligation and the change of address reporting 
requirement imposed on a sponsor, substitute sponsor and joint sponsor 
under Form I-864, and any household member's support obligation under 
Form I-864A, all terminate by operation of law when the sponsored 
immigrant:
    (A) Becomes a citizen of the United States;
    (B) Has worked, or can be credited with, 40 qualifying quarters of 
coverage under title II of the Social Security Act, 42 U.S.C. 401, et 
seq., provided that the sponsored immigrant is not credited with any 
quarter beginning after December 31, 1996, during which the sponsored 
immigrant receives or received any Federal means-tested public benefit;
    (C) Ceases to hold the status of an alien lawfully admitted for 
permanent residence and departs the United States (if the sponsored 
immigrant has not filed USCIS Form I-407, Abandonment of Lawful 
Permanent Resident Status, this provision will apply only if the 
sponsored immigrant is found in a removal proceeding to have abandoned 
that status while abroad);
    (D) Obtains in a removal proceeding a new grant of adjustment of 
status as

[[Page 35755]]

relief from removal (in this case, if the sponsored immigrant is still 
subject to the affidavit of support requirement under this part, then 
any individual(s) who signed the Form I-864 or I-864A in relation to 
the new adjustment application will be subject to the obligations of 
this part, rather than those who signed a Form I-864 or I-864A in 
relation to an earlier grant of admission as an immigrant or of 
adjustment of status); or
    (E) Dies.
    (ii) The support obligation under Form I-864 also terminates if the 
sponsor, substitute sponsor or joint sponsor dies. A household member's 
obligation under Form I-864A terminates when the household member dies. 
The death of one person who had a support obligation under a Form I-864 
or Form I-864A does not terminate the support obligation of any other 
sponsor, substitute sponsor, joint sponsor, or household member with 
respect to the same sponsored immigrant.
    (3) The termination of the sponsor's, substitute sponsor's, or 
joint sponsor's obligations under Form I-864 or of a household member's 
obligations under Form I-864A does not relieve the sponsor, substitute 
sponsor, joint sponsor, or household member (or their respective 
estates) of any reimbursement obligation under section 213A(b) of the 
Act and this section that accrued before the support obligation 
terminated.
    (f) Withdrawal of Form I-864 or Form I-864A. (1) In an immigrant 
visa case, once the sponsor, substitute sponsor, joint sponsor, 
household member, or intending immigrant has presented a signed Form I-
864 or Form I-864A to a Department of State officer, the sponsor, 
substitute sponsor, joint sponsor, or household member may disavow his 
or her agreement to act as sponsor, substitute sponsor, joint sponsor, 
or household member if he or she does so in writing and submits the 
document to the Department of State officer before the actual issuance 
of an immigrant visa to the intending immigrant. Once the intending 
immigrant has obtained an immigrant visa, a sponsor, substitute 
sponsor, joint sponsor, or household member cannot disavow his or her 
agreement to act as a sponsor, joint sponsor, or household member 
unless the person or entity who filed the visa petition withdraws the 
visa petition in writing, as specified in 8 CFR 205.1(a)(3)(i)(A) or 8 
CFR 205.1(a)(3)(iii)(C), and also notifies the Department of State 
officer who issued the visa of the withdrawal of the petition.
    (2) In an adjustment of status case, once the sponsor, substitute 
sponsor, joint sponsor, household member, or intending immigrant has 
presented a signed Form I-864 or Form I-864A to an immigration officer 
or immigration judge, the sponsor, substitute sponsor, joint sponsor, 
or household member may disavow his or her agreement to act as sponsor, 
substitute sponsor, joint sponsor, or household member only if he or 
she does so in writing and submits the document to the immigration 
officer or immigration judge before the decision on the adjustment 
application.
    (g) Aliens who accompany or follow-to-join a principal intending 
immigrant. (1) To avoid inadmissibility under section 212(a)(4) of the 
Act, an alien who applies for an immigrant visa, admission, or 
adjustment of status as an alien who is accompanying, as defined in 22 
CFR 40.1, a principal intending immigrant must submit clear and true 
photocopies of the signed Form(s) I-864 (and any Form(s) I-864A) filed 
on behalf of the principal intending immigrant.
    (2)(i) To avoid inadmissibility under section 212(a)(4) of the Act, 
an alien who applies for an immigrant visa, admission, or adjustment of 
status as an alien who is following-to-join a principal intending 
immigrant must submit new Forms I-864 and I-864A, together with all 
documents or other evidence necessary to prove that the new Forms I-864 
and I-864A comply with the requirements of section 213A of the Act and 
8 CFR part 213a.
    (ii) When paragraph (g)(2)(i) of this section requires the filing 
of a new Form I-864 for an alien who seeks to follow-to-join a 
principal sponsored immigrant, the same sponsor who filed the visa 
petition and Form I-864 for the principal sponsored immigrant must file 
the new Form I-864 on behalf of the alien seeking to follow-to-join. If 
that person has died, then the alien seeking to follow-to-join is 
inadmissible unless a substitute sponsor, as defined by 8 CFR 213a.1, 
signs a new Form I-864 that meets the requirements of this section. 
Forms I-864A may be signed by persons other than the person or persons 
who signed Forms I-864A on behalf of the principal sponsored immigrant.
    (iii) If a joint sponsor is needed in the case of an alien who 
seeks to follow-to-join a principal sponsored immigrant, and the 
principal sponsored immigrant also required a joint sponsor when the 
principal sponsored immigrant immigrated, that same person may, but is 
not required to be, the joint sponsor for the alien who seeks to 
follow-to-join the principal sponsored immigrant.

0
8. Section 213a.3(a) is revised to read as follows:


Sec.  213a.3  Notice of change of address.

    (a)(1) If the address of a sponsor (including a substitute sponsor 
or joint sponsor) changes for any reason while the sponsor's support 
obligation under the affidavit of support remains in effect with 
respect to any sponsored immigrant, the sponsor shall file Form I-865, 
Sponsor's Notice of Change of Address, with U.S. Citizenship and 
Immigration Services (USCIS) no later than 30 days after the change of 
address becomes effective. As evidence that the sponsor, substitute 
sponsor, or joint sponsor has complied with this requirement, USCIS 
will accept a photocopy of the properly completed Form I-865, together 
with proof of the Form's delivery to the proper service center (such as 
a post-marked United States Postal Service Express Mail or certified 
mail receipt, showing that the sponsor mailed the Form I-865 to the 
proper USCIS service center, together with the corresponding post-
marked United States Postal Service return receipt card or other proof 
of delivery provided by the United States Postal Service, or, if the 
sponsor, substitute sponsor, or joint sponsor sent the Form I-865 by a 
commercial delivery service, a photocopy of the shipping label and 
signature proof of delivery).
    (2) If the sponsor is an alien, filing Form I-865 does not relieve 
the sponsor of the requirement under 8 CFR 265.1 also to file a Form 
AR-11, Alien's Change of Address Card.
* * * * *

0
9. Section 213a.4 is amended by:
0
a. Revising paragraph (a);
0
b. Adding a heading to paragraph (b), and adding a sentence at the end 
of paragraph (b); and by
0
c. Revising paragraph (c).
    The revisions and additions read as follows:


Sec.  213a.4  Actions for reimbursement, public notice, and 
congressional reports.

    (a) Requests for reimbursement; commencement of civil action. (1) 
By agencies. (i) If an agency that provides a means-tested public 
benefit to a sponsored immigrant wants to seek reimbursement from a 
sponsor, household member, or joint sponsor, the program official must 
arrange for service of a written request for reimbursement upon the 
sponsor, household member, or joint sponsor, by personal service, as 
defined by 8 CFR 103.5a(a)(2), except that the person making personal 
service need not be a Federal Government officer or employee.
    (ii) The request for reimbursement must specify the date the 
sponsor, household member, or joint sponsor's

[[Page 35756]]

support obligation commenced (this is the date the sponsored immigrant 
became a permanent resident), the sponsored immigrant's name, alien 
registration number, address, and date of birth, as well as the types 
of means-tested public benefit(s) that the sponsored immigrant 
received, the dates the sponsored immigrant received the means-tested 
public benefit(s), and the total amount of the means-tested public 
benefit(s) received.
    (iii) It is not necessary to make a separate request for each type 
of means-tested public benefit, nor for each separate payment. The 
agency may instead aggregate in a single request all benefit payments 
the agency has made as of the date of the request. A state or local 
government may make a single reimbursement request on behalf of all of 
the state or local government agencies that have provided means-tested 
public benefits.
    (iv) So that the sponsor, household member, or joint sponsor may 
verify the accuracy of the request, the request for reimbursement must 
include an itemized statement supporting the claim for reimbursement. 
The request for reimbursement must also include a notification to the 
sponsor, household member, or joint sponsor that the sponsor, household 
member, or joint sponsor must, within 45 days of the date of service, 
respond to the request for reimbursement either by paying the 
reimbursement or by arranging to commence payments pursuant to a 
payment schedule that is agreeable to the program official.
    (v) Prior to filing a lawsuit against a sponsor, household member, 
or joint sponsor to enforce the sponsor, household member, or joint 
sponsor's support obligation under section 213A(b)(2) of the Act, a 
Federal, state, or local governmental agency or a private entity must 
wait 45 days from the date it serves a written request for 
reimbursement in accordance with this section.
    (2) By the sponsored immigrant. Section 213A(b) of the Act does not 
require a sponsored immigrant to request the sponsor or joint sponsor 
to comply with the support obligation, before bringing an action to 
compel compliance.
    (3) Role of USCIS and DHS. Upon the receipt of a duly issued 
subpoena, USCIS may provide a certified copy of a Form I-864 or Form I-
864A that has been filed on behalf of a specific alien for use as 
evidence in a civil action to enforce the Form I-864 or Form I-864A, 
and may also disclose the last known address and social security number 
of the sponsor, substitute sponsor, or joint sponsor. Requesting 
information through the Systematic Alien Verification for Entitlement 
(SAVE) Programis sufficient, and a subpoena is not required, to obtain 
the sponsored immigrant's current immigration or citizenship status or 
the name, social security number and last known address of a sponsor, 
substitute sponsor, or joint sponsor.
    (b) Designation of means-tested public benefits. * * * A sponsor, 
joint sponsor, or household member is not liable to reimburse any 
agency for any benefit with respect to which a public notice of the 
determination that the benefit is a means-tested public benefit was not 
published until after the date the benefit was first provided to the 
immigrant.
    (c) Congressional reports. (1) For purposes of section 213A(i)(3) 
of the Act, USCIS will consider a sponsor or joint sponsor to be in 
compliance with the financial obligations of section 213A of the Act 
unless a party that has obtained a final judgment enforcing the sponsor 
or joint sponsor's obligations under section 213A(a)(1)(A) or 213A(b) 
of the Act has provided a copy of the final judgment to the USCIS by 
mailing a certified copy to the address listed in paragraph (c)(3) of 
this section. The copy should be accompanied by a cover letter that 
includes the reference ``Civil Judgments for Congressional Reports 
under section 213A(i)(3) of the Act.'' Failure to file a certified copy 
of the final civil judgment in accordance with this section has no 
effect on the plaintiff's ability to collect on the judgment pursuant 
to law.
    (2) If a Federal, state, or local agency or private entity that 
administers any means-tested public benefit makes a determination under 
section 421(e) of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996 in the case of any sponsored immigrant, the 
program official shall send written notice of the determination, 
including the name of the sponsored immigrant and of the sponsor, to 
the address listed in paragraph (c)(3) of this section. The written 
notice should include the reference ``Determinations under 421(e) of 
the Personal Responsibility and Work Opportunity Reconciliation Act of 
1996.''
    (3) The address referred to in paragraphs (c)(1) and (c)(2) of this 
section is: Office of Program and Regulation Development, U.S. 
Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., 
Washington, DC, 20529.

PART 299--IMMIGRATION FORMS

0
10. The authority citation for part 299 continues to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.

0
11. Section 299.1 is amended in the table by revising the entries for 
Form I-864 and Form I-864A, and by adding Form I-864EZ and Form I-864W, 
in proper alphanumeric sequence, to read as follows:


Sec.  299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
            Form No.              Edition date    Title and description
------------------------------------------------------------------------
 
                              * * * * * * *
I-864..........................      09/15/2003  Affidavit of support
                                                  under Section 213A of
                                                  the Act.
I-864A.........................      09/15/2003  Contract between
                                                  sponsor and household
                                                  member.
I-864EZ........................      09/15/2003  EZ Affidavit of support
                                                  under Section 213A of
                                                  the Act.
I-864W.........................      09/15/2003  Intending immigrant's I-
                                                  864 exemption.
 
                              * * * * * * *
------------------------------------------------------------------------


0
12. Section 299.5 is amended in the table by revising headings and the 
entries for Form I-864, Form I-864A, and Form I-865, and by adding Form 
I-864EZ and Form I-864W, in proper alphanumeric sequence, to read as 
follows:


Sec.  299.5  Display of control numbers.

* * * * *

[[Page 35757]]



------------------------------------------------------------------------
                                                             Currently
            Form No.                    Form title         assigned OMB
                                                            Control No.
------------------------------------------------------------------------
 
                              * * * * * * *
I-864..........................  Affidavit of support          1615-0075
                                  under Section 213A of
                                  the Act.
I-864A.........................  Contract between              1615-0075
                                  sponsor and household
                                  member.
I-864EZ........................  EZ Affidavit of support       1615-0075
                                  under Section 213A of
                                  the Act.
I-864W.........................  Intending immigrant's I-      1615-0075
                                  864 Exemption.
I-865..........................  Sponsor's Change of           1615-0076
                                  Address.
 
                              * * * * * * *
------------------------------------------------------------------------

Department of Justice

8 CFR Chapter V--Authority and Issuance

0
Accordingly, for the reasons stated in the joint preamble and pursuant 
to the authority vested in me as the Attorney General of the United 
States, chapter V of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 1205--REVOCATION OF APPROVAL OF PETITIONS

0
13. The authority citation for part 1205 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, 
and 1186a.


0
14. Section 1205.1 is amended by revising paragraph (a)(3)(i)(C) to 
read as follows:


Sec.  1205.1  Automatic revocation.

    (a) * * *
    (3) * * *
    (i) * * *
    (C) Upon the death of the petitioner, except as provided for in 8 
CFR 205.1(a)(3)(i)(C).
* * * * *

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

0
15. The authority citation for part 1240 is revised to read as follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277, (112 Stat. 
2681).

0
16. Section 1240.11(a)(2) is amended by revising the second sentence 
and adding a new sentence at the end, to read as follows:


Sec.  1240.11  Ancillary matters, applications.

    (a) * * *
    (2) * * * The immigration judge shall inform the alien of his or 
her apparent eligibility to apply for any of the benefits enumerated in 
this chapter and shall afford the alien an opportunity to make 
application during the hearing, in accordance with the provisions of 
Sec.  1240.8(d). In a relevant case, the immigration judge may 
adjudicate the sufficiency of an Affidavit of Support Under Section 
213A (Form I-864), executed on behalf of an applicant for admission or 
for adjustment of status, in accordance with the provisions of section 
213A of the Act and 8 CFR part 213a.
* * * * *

0
17. Section 1240.34 is amended by adding at the end a new sentence, to 
read as follows:


Sec.  1240.34  Renewal of application for adjustment of status under 
section 245 of the Act.

    * * * In a relevant case, the immigration judge may adjudicate the 
sufficiency of an Affidavit of Support Under Section 213A (Form I-864), 
executed on behalf of an applicant for admission or for adjustment of 
status, in accordance with the provisions of section 213A of the Act 
and 8 CFR part 213a.

0
18. Section 1240.49(a) is amended by adding after the sixth sentence a 
new sentence, to read as follows:


Sec.  1240.49  Ancillary matters, applications.

    (a) * * * In a relevant case, the immigration judge may adjudicate 
the sufficiency of an Affidavit of Support Under Section 213A (Form I-
864), executed on behalf of an applicant for admission or for 
adjustment of status, in accordance with the provisions of section 213A 
of the Act and 8 CFR part 213a. * * *
* * * * *

    Dated: June 13, 2006.
Alberto R. Gonzales,
Attorney General.
    Dated: April 11, 2006.
Michael Chertoff,
Secretary.
[FR Doc. 06-5522 Filed 6-20-06; 8:45 am]
BILLING CODE 4410-10-P