Responsibilities and Risks of Filing an Affidavit of Support

December 21, 2012 | Family Petition

Q.  My friend is petitioning for her parents, but she could not file an affidavit of support due to low income. She asked me to help by filing the affidavit of support for her parents. The question is who will be liable for her parents’ financial support. If her parents apply for public assistance, will the SSI deduct any dues in my paychecks? Will there be any financial liabilities for filing the affidavit of support for her parents?

A.  This is a great question as many people are hesitant to sponsor an intending immigrant (the Beneficiary) for fear of future liability if the immigrant receives government benefits like public assistance or food stamps. In general, the petitioner in most family-based petitions and sometimes in employment-based petitions must file an Affidavit of Support to prove that the petitioner can financially support the intending immigrant(s) so that the intending immigrant(s) will not become primarily dependent on public cash assistance for income maintenance. Under certain circumstances, if the petitioner does not have the financial resources to meet the Affidavit of Support requirements, the petitioner can get one or more other Joint Sponsors to file one or more Affidavits of Support. The joint sponsors become jointly (i.e., collectively) and severally (i.e., individually) liable along with the petitioner for financially supporting the intending immigrant(s).While a Joint Sponsor is legally responsible for the immigrant’s financial support, currently the government rarely takes action to compel the Joint Sponsor to repay the cost of those benefits. Still, it’s always a possibility.

When an intending immigrant applies for permanent residency in the United States they must not be inadmissible, meaning that they must be eligible to receive a visa and be admitted to the United States, either by adjusting status in the United States or through consular processing at a U.S. embassy or consulate in the immigrant’s home country. There are several grounds of inadmissibility under the Immigration and Nationality Act. In particular, an immigrant may be found inadmissible if they are likely to become a “public charge” to the United States. This means that the immigrant will become primarily dependent on public cash assistance to maintain her/his income.

The Affidavit of Support is required to show that the Beneficiary has adequate means of financial support and is not likely to become a public charge. The Affidavit is a legally enforceable contract between the government and the Sponsor where the Sponsor demonstrates that they have sufficient income and/or assets to maintain the intending immigrant and the rest of his household at 125% of the Federal Poverty Guidelines unless on active duty in the armed forces. Then it is only 100% of the Federal Poverty Guidelines when sponsoring certain family members. By signing the Affidavit, the Sponsor also pledges to use his own resources to support the intending immigrant if it becomes necessary.

Generally, in a family-based petition the Petitioner must also be the Sponsor. However, if the Petitioner cannot meet the income requirements, the Beneficiary will need a Joint Sponsor. A Joint Sponsor also completes an Affidavit promising to support the Beneficiary, and that he or she can support the immigrant and the rest of his or her own household. This is evidenced by the Joint Sponsor’s Federal income tax returns, W-2s, and proof of current employment. The Immigration and Nationality Act requires the Joint Sponsor to (1) be at least 18 years old, (2) a U.S. citizen or legal permanent resident, and (3) have her/his principal residence (i.e., domicile) in the United States. Fortunately, the Joint Sponsor does not have to be related to the petitioning sponsor or the intending immigrant.

Keep in mind that under Federal Immigration law, a Joint Sponsor is legally accountable or liable for the financial support of the intending immigrant – along with the Petitioning Sponsor. If the sponsored immigrant receives means-tested public benefits from a Federal, State, or local New York City agency (i.e. public assistance or food stamps), the agency providing the benefit may request the Joint Sponsor to repay the cost of those benefits. That agency can sue the Joint Sponsor if the cost of the benefits provided is not repaid.

The Joint Sponsor’s obligation under the Affidavit of Support ends when the immigrant naturalizes, becoming a U.S. citizen, or when he/she has either worked or can be credited with working 40 qualifying quarters under the Social Security Act. The sponsor continues to be obligated under the contract until (1) the sponsored immigrant loses lawful permanent resident status and leaves the country or (2) re-adjusts to lawful permanent resident status in removal proceedings or (3) the sponsored immigrant dies, or (4) the sponsor dies. The sponsor is still responsible for costs that occurred before the sponsor’s obligation terminated. The only means-tested public benefit designated by New York State is the Safety Net Program, which is New York’s cash assistance program. This is open to people ineligible for federal public welfare. Recently the Human Resources Administration in New York City had announced it would pursue sponsors for reimbursement of the cost to New York City of providing means-tested public benefits. At the time of publication of this article however, it appears that they have not started going after sponsors. Although it is rare for the government to go after sponsors, I cannot advise you on the chances of the government asking you to reimburse them for the cost of providing public benefits to your friend. As long as your friend does not resort to means-tested public benefits, the government could not seek to enforce the Affidavit of Support and therefore there would be little chance that the Social Security Administration or the New York City Human Resources Administration would deduct any monies from your paycheck as a Joint Sponsor. Note that your friend’s parents can apply for citizenship after they have met the requisite time in the United States. CUNY provides a wide variety of services including English classes and Test Preparation Classes . Feel free to come to one of our immigration centers for more information.