DHS proposed new rules on affidavit of support

On October 1, 2020, the US Department of Homeland Security proposed new rules strengthening the process of Affidavit of Support (AOS). In the context of family-based petition, the AOS is one of the requirements needed from the petitioner before the US government approves the adjustment of status application or the immigrant visa application. The form itself outlines the sponsor/joint sponsor’s obligations under this enforceable contract with the US government and also enumerates specific conditions under which these obligations are terminated.

The USCIS said the “proposed update would require American citizens, US nationals and lawful permanent residents who choose to sponsor an immigrant by submitting a Form I-864, Affidavit of Support Under Section 213A of the INA, or Form I-864EZ, Affidavit of Support Under Section 213A of the INA, to provide credit reports and credit scores, certified copies of income tax returns for the last three years, and bank account information to effectively demonstrate they can maintain the required income.” Under the old rule, the sponsor is only required to submit latest tax return, evidence of US citizenship/permanent residency and wage statements (W2). There was no requirement of credit reports and credit scores, three years of tax returns is optional, and bank account information.

The press release continue on to say that “under the proposed rule, any petitioning sponsor found to have received means-tested public benefits within the last 36 months of submitting a Form I-864, or to have defaulted on previous obligations to support an immigrant, must be backed by a joint sponsor who has received no such public benefits during that time. Other proposed changes include eliminating the subpoena requirement before USCIS can provide certain information to benefit-granting agencies and other parties authorized to pursue civil action against defaulting sponsors, and limiting the type/number of household members who can file a Form I-864A, Contract Between Sponsor and Household Member.”

I’m apprehensive about the chilling effect of this new rule when implemented. To me, requiring credit reports/credit scores, bank statements and three years of tax return is not only burdensome and impractical but also a brazen attack against immigrants, most especially those immigrants who are poor and have recently arrived.

Let me emphasize my point. Pedro arrives in the USA as a lawful permanent resident through a petition filed by his mother. After entering the US, he went back to the Philippines to marry his long-time girlfriend.

He then immediately filed a petition for her which was approved and after a short time, he was required by the NVC to submit the AOS. Under the old rule, Pedro would only have to submit his latest tax return, W2, and greencard. But because of this new rule, Pedro would face a great deal of difficulty since it is conceivable that he may not have a robust credit report and high credit scores. Credit reports and scores take a lot of time to accumulate to a decent level. He may also have not enough savings in the bank. An untold number of immigrants situated similarly like that of Pedro would clearly be jeopardized by this rule. These new requirements are biased against a poor immigrant who may not have a stable income during his early years in the US.

I anticipate that a lawsuit will be filed against this new rule and it’s with strong hope that the court will invalidate this new rule.