The Financial Challenges of Immigrating to the United States

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

These are the words originally written in a poem by Emma Lazurus, which are inscribed on a plaque on the Statue of Liberty. Historically, the United States has welcomed to its shores people with varied means. While the original Immigration and Nationality Act of 1882 included a provision that barred admission to the US if the person would likely become a public charge, since 1996 as long as the potential immigrant had a financial sponsor in the US, then in most cases the person could immigrate. Now, that is no longer the case.

Financial Sponsorship – Form I-864

Since 1996 Form I-864 is required to be submitted by the family member petitioning for the immigrant to immigrate to the United States. A US citizen may petition for immigration for a spouse, children, parents and siblings. A US green card holder may petition for a spouse and children. The financial sponsorship form requires the petitioning family member to disclose their current job, current employer, annual income, the last three years of income as recorded on US tax returns and in some cases, personal assets.

To prove the family member has sufficient income to be a sponsor, he/she must provide a copy of their most recent tax return and an employer W-2 form, which shows the employee salary for the past year.

Depending upon the size of the sponsor’s family and the number of immigrants he/she is sponsoring determines the required amount of annual income the sponsor must show to qualify as the sole sponsor of the immigrant. If the family member’s income is insufficient to be the sole sponsor, then the family member can also use personal assets to supplement the income. Alternatively, a joint sponsor could submit a separate financial sponsorship form to make up the difference.

By signing the form, the family member commits to ensuring the immigrant has sufficient support in the United States. The most serious consequences of signing the form are the following:

If a federal, state, local or private agency provided any covered means-tested public benefit to the person who becomes a lawful permanent resident based on Form I-864 that you signed, the agency may ask you to reimburse them for the amount of the benefits they provided. If you do not make the reimbursement, the agency may sue you for the amount the agency believes you owe.

Until very recently, a properly submitted Form I-864 was usually sufficient to prove the intending immigrant would not become a public charge. That is no longer the case. Far more evidence must be provided by the intending immigrant to show they likely will not become a public charge. The evidence differs depending upon where the immigrant is seeking to obtain a green card.

Form I-864 must be submitted in family immigration proceedings

Immigrants Processing Immigrant Visas in US Embassies Abroad

The normal process for someone immigrating from abroad is that a family member or employer files an immigrant petition with the United States Citizenship and Immigration Service (USCIS). Once the case is approved, it is transferred to the National Visa Center (NVC) where additional information is requested of the intending immigrant, including the Affidavit of Support – Form I-864, as explained above. Upon receiving all required information, the case is then transferred to the local US embassy where final processing will take place. The intending immigrant is invited to an interview by a US consular officer at the local embassy where several original documents are submitted. Now, the immigrant must also provide a new form, DS-5540, a Public Charge Questionnaire. The questionnaire asks multiple questions about the immigrant’s situation. The following are the types of questions asked:

  1. Whether the immigrant will have health insurance in the US.
  2. The size of the immigrant’s family and what jobs the family members likely will hold in the US.
  3. The list of US tax returns, if any, the immigrant filed in the last three years.
  4. Immigrant’s list of assets and their value.
  5. Immigrant’s list of debts.
  6. Whether the immigrant filed for US public benefits in the past.
  7. Immigrant’s educational experience.
  8. Immigrant’s list of licenses for work, if any.

At the interview the consular officer will weigh various factors to determine whether he/she believes the intending immigrant will become a public charge. An immigrant under age 18 or over age 61 is considered a negative factor. A large family is considered negatively. A serious medical condition is a negative factor. Whereas, someone who has health insurance in the US is viewed positively. A large family is viewed negatively. Employment history, education, occupational skills, licenses and English language proficiency all will be weighed.

While the new form only requires the immigrant to submit evidence of a health insurance policy, if they have one, and previous US tax returns, if they ever submitted them, the consular officer may request evidence to support the other claims made on the form. Consequently, the immigrant should plan to bring such documentation to the interview.

The embassy procedure is slightly different from the US procedure.

Immigrants Applying for Adjustment of Status in the US

If an employer or family member applies for immigration for an alien currently in the United States, the process is different. Often accompanying the immigrant petition, the alien also submits the Adjustment of Status (green card), form I-485. The information required is comparable to what is required by the NVC above for those aliens applying for an immigrant visa overseas. Similarly, the alien in the United States must submit the I-864 financial sponsorship form described above. However, in this situation the entire case is handled by USCIS and is eventually referred to a local USCIS office near the alien’s residence. The alien must appear for an interview at the local office with all original documents, similar to what is required at a US embassy for aliens living abroad. In cases where the immigrant petition is based on marriage to a US citizen, the US citizen or US green card spouse must also appear for the interview.

Similar to the alien applying for immigration from overseas, in the past the I-864 financial sponsorship form usually was sufficient to prove the alien living in the US would not become a public charge. However, again the situation has changed. Now, the alien must submit with the I-864 form a new eighteen-page form, I-944, Declaration of Self Sufficiency. The following is a list of things requested on the form:

  • Names of all family members.
  • List of everyone’s income as reported on US tax returns. If US tax returns were not filed, then an explanation as to why.
  • Regular income for everyone that was not reported on US tax returns.
  • Whether income for any family member originated from public benefits.
  • List of assets of every family member and their value.
  • List of liabilities and debts of every family member.
  • A credit report and credit score.
  • Health insurance information for everyone.
  • A list of any public benefits received, when and how much.
  • The alien’s complete educational history.
  • List and information about any occupational licenses the alien may have.
  • List of languages spoken and written and proficiency.

In addition: the intending immigrant must provide documentation to support the answers listed above. Here is a list of required documentation:

  • An IRS tax transcript for the most recent tax year, or a Form W-2 or Social Security Statement if the transcript is unavailable;
  • Credit report(s);
  • Documentation of any untaxed income;
  • Proof of asset-ownership if needed, including a real estate appraisal from a licensed appraiser;
  • Copies of policy pages for all health insurance policies, or documentation that applicant has enrolled;
  • Any “documentation that may outweigh any negative factors related to a medical condition”;
  • Child support orders and/or custody agreement, for any children being supported who do not reside in the household.
  • Level of English proficiency

In addition, in the past, if the US citizen sponsor did not have sufficient income to guarantee the immigrant spouse would not become a public charge, then a joint sponsor could be added to meet the burden of avoiding becoming a public charge. But under the new rules, a joint sponsor will be looked upon suspiciously. USCISwill consider the likelihood that the joint sponsor would actually provide the statutorily-required amount of financial support to the alien, and any other related considerations. The joint sponsor must show:

  1. The sponsor’s annual income, assets, and resources;
  2. The sponsor’s relationship to the applicant, including but not limited towhether the sponsor lives with the alien; and
  3. Whether the sponsor has submitted an affidavit of support with respect to other individuals. 

In other words, having a joint sponsor could be looked upon negatively by the adjudicator in the US.

Finally, a determination is made as to whether the intending immigrant will likely become a public charge sometime in the future. If the immigrant ever received any public benefits in the past, then this is considered a negative factor for obtaining a green card. Also, a new public charge bond was created to enable an immigrant to overcome a negative determination about the likelihood of becoming a public charge. If the USCIS adjudicator determines that a bond is warranted for the intending immigrant, the immigrant will be given the opportunity to submit another form, I-945, Public Charge Bond, where they pay for and receive a bond to ensure they do not become a public charge to the United States. They bond money is only returned after several years and only if the immigrant did not receive public benefits.

Conclusion 

Under the new rules, a person’s health, education, family size, income, assets, English proficiency, age, and whether the immigrant ever received or will likely receive public benefits are all weighed in determining whether the immigrant will become a public charge. If they are deemed likely to become a public charge, they will be considered inadmissible to the United States. If they currently reside in the United States, their petition for a green card will be denied, and they will be forced to depart the country. 

In light of the new amendment described above, the need for professional advice has become much more critical. To successfully pass the “Burden to Society” test, it is very important to get the advice of a US immigration lawyer before starting the immigration process.

We at Cohen Brosh Law Office will be happy to be partners in your immigration experience. We know how to perform the entire immigration procedure on the best side.

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