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AILA Responds to USCIS’s Proposed Theatrics in an Attempt to Amend its Regulations governing the Affidavit of Support on Behalf of Immigrants

On October 2, 2020, USCIS proposed to increase the evidence that sponsors, joint sponsors, and household members must submit to the federal government to meet the requirements under section 213A of the Act. Current law requires that sponsors must include a tax transcript or Federal income tax return, along with all relevant schedules, W-2s, and 1099s. With the current regulations, the sponsor may include letters evidencing current employment and income, paycheck stubs, financial statements, or other evidence of the sponsor’s anticipated household income for the year in which the intending immigrant files the application. If using assets in lieu of income, the sponsor may include evidence of the sponsor’s ownership of significant assets, such as a savings account, stocks, bonds, certificates of deposit, real estate, or other assets.

The Proposal

Under the proposed rule, sponsors, joint sponsors, and household members who execute an Affidavit of Support would be required to provide Federal income tax returns for the three most recent tax years instead of one tax return for the most recent tax year, as well as credit reports, credit scores, and in-depth bank account information.

AILA’s Response

USCIS fails to provide any data or evidence in its proposed rule regarding the inadequacy of its current evidentiary requirements to reasonably justify why new documentary evidence must now be provided by sponsors, joint sponsors, and household members in support of an affidavit of support. USCIS has not shown any evidence that members are currently failing to fulfill their affidavit of support obligations due to insufficient financial means.

USCIS is also proposing to require IRS-issued certified copies or transcripts of tax returns in lieu of photocopies. USCIS provides no explanation, data, or rationale in its proposed rule for why complete photocopies of tax returns, along with the sponsor’s certification under penalty of perjury that the copies are true copies, is insufficient, particularly as the agency has long accepted photocopies. Notably, USCIS cites to no problems, such as fraud or other abuse, that would require or necessitate such a change.

These new evidentiary requirements, such as requiring a credit score and credit report, are not indicative of a sponsor or household member’s current income, nor their ability to maintain income at the required level or fulfill future support obligations. USCIS offers no data or evidence that a low credit score is indicative of an individual’s inability to maintain an annual income at or above the required income threshold or meet all the support obligations during the period the affidavit is in effect. A bad or low credit record could be the result of circumstances beyond the individual’s control, such as a sudden illness or an unexpected job loss, circumstances which have become far too common for millions of Americans in light of the coronavirus pandemic, and from which an individual may subsequently recover.

Moreover, a low credit score or a negative credit report is not necessarily indicative of one’s current financial situation as it can take several years for one’s credit report or credit score to recover from an incident that caused a bad credit score on the report, such as late or missed payments, even though the sponsor’s income has greatly improved. Negative credit history can remain on one’s report for 7-10 years.

USCIS has also failed to address in its proposed rule that some U.S. citizens residing overseas will have difficulty obtaining a credit score, particularly if they have been residing outside of the U.S. for several years. U.S. credit reports and scores are available only for U.S. residents who have a residential address in the United States. A U.S. citizen living abroad is not a U.S. resident until he/she returns to the U.S. to live. U.S. citizens should not be denied the ability to sponsor a relative just because the U.S. citizen/ sponsor lacks a credit report. USCIS has failed to acknowledge in its proposal how the agency would take into consideration family-based immigrant visa applications sponsored by U.S. citizens who have resided overseas for several years who lack a credit history or credit score.

These new evidentiary requirements will make the affidavit of support process more costly and burdensome for U.S. citizen and U.S. permanent resident sponsors to request and compile this new evidence.

  • For example, both IRS-certified copies and IRS transcripts require submitting a separate form to the IRS to obtain this evidence. An IRS-certified copy of a tax return costs $50 per return. This means it will cost the sponsor a total of $150 for the required three years of tax returns if the sponsor submits official copies instead of transcripts of their tax returns.
  • In addition, the proposed rule would require that all sponsors, as well as household members who execute Form I-864A, submit a credit report and credit score. While all individuals are entitled to one free credit report per year, they must pay to obtain their credit score. Credit scores cost about $20. These new costs to obtain supporting evidence would mean that sponsors may have to pay up to an additional $170 associated with filing their Affidavit of Support on Form I-864, I-864EZ, or I-864A.

This could discourage people from sponsoring their immigrant family members or from serving as joint sponsors and lead to a reduction in the flow of family-based immigrants to the United States, circumventing Congressional intent for our U.S. immigration system and undermining family unity, our economy, and our local communities. Additionally, with the increase in evidentiary requirements, this will significantly increase the burden on USCIS adjudicators which ultimately will lengthen case processing times, adding to the agency’s crisis-level case backlog.

Disclaimer

This article aims to provide new information concerning USCIS’s proposal on the additional requirements for the affidavit of support. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).

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