54346 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

contract between you and us that will be in

effect if the written agreement is not

approved;

(c) If approved, the written agreement will

include all variable terms of the contract,

including, but not limited to, crop type or

variety, the guarantee, premium rate, and

price election;

(d) Each written agreement will only be

valid for one year (If the written agreement

is not specifically renewed the following

year, insurance coverage for subsequent crop

years will be in accordance with the printed

policy); and

(e) An application for a written agreement

submitted after the sales closing date may be

approved if, after physical inspection of the

acreage, it is determined that no loss has

occurred and the crop is insurable in

accordance with the policy and written

agreement provisions.

Signed in Washington, D.C., on October 10,

1997.

Kenneth D. Ackerman,

Manager, Federal Crop Insurance

Corporation.

[FR Doc. 97–27652 Filed 10–17–97; 8:45 am]

BILLING CODE 3410–08–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 213a and 299

[INS No. 1807–96]

RIN 1115–AE58

Affidavits of Support on Behalf of

Immigrants

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This rule amends the

Immigration and Naturalization Service

(Service) regulations by establishing that

an individual (the sponsor) who files an

affidavit of support under section 213A

of the Immigration and Nationality Act

(the Act) on behalf of an intending

immigrant incurs an obligation that may

be enforced by a civil action. This rule

also specifies 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, and provides procedures of

imposing the civil penalty provided for

under section 213A of the Act, if the

sponsor fails to give notice of any

change of address. This rule is necessary

to ensure that sponsors of aliens meet

their obligations under section 213A of

the Act.

DATES: Effective Date: This interim rule

is effective on December 19, 1997.

Comment Date: Written comments

must be submitted on or before February

17, 1998.

ADDRESSES: Please submit written

comments, in triplicate, to the Director,

Policy Directives and Instructions

Branch, Immigration and Naturalization

Service, 425 I Street NW., Room 5307,

Washington, DC 20536. To ensure

proper handling, please reference INS

No. 1807–96 on your correspondence.

Comments are available for public

inspection at the above address by

calling (202) 514–3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Miriam J. Hetfield, Office of

Adjudications, Immigration and

Naturalization Service, 425 I Street NW.,

Room 3214, Washington, DC 20536;

telephone (202) 514–5014; or Lisa S.

Roney, Office of Policy and Planning,

425 I Street NW., Room 6052,

Washington, DC 20536; telephone (202)

514–3242.

SUPPLEMENTARY INFORMATION: On

September 30, 1996, the President

approved enactment of the Illegal

Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA),

Public Law 104–208. Section 531(a) of

IIRIRA amends section 212(a)(4) of the

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 familybased immigrant, or (c) an employmentbased immigrant, of a relative if the

alien is the petitioning employer or

owns a significant ownership interest in

the entity that is the petitioning

employer. To overcome this ground of

inadmissibility, the alien must be the

beneficiary of an affidavit of support

filed under the new section 213A of the

Act. 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.

Under 531(b) of IIRIRA, the new

affidavit of support will be required for

all applications for immigrant visas or

for adjustment of status filed on or after

December 19, 1997. Section 531(b) of

IIRIRA excuses an applicant for

admission from the affidavit of support

requirement if the applicant had ‘‘an

official interview with an immigration

officer’’ before December 19, 1997.

Because of the massive administrative

burden that would result from requiring

aliens who obtain immigrant visas

before December 19, 1997, but do not

apply for admission until on or after

December 19, 1997, this interim rule

designates Consular Officers as

Immigration Officers, solely for

purposes of section 531 of IIRIRA and

this new part 213a. Thus, an alien who

is issued an immigrant visa before

December 19, 1997 will not be required

to present an affidavit of support that

complies with the requirements of

section 213A of the Act, even if the

alien does not apply for admission until

December 19, 1997, or later.

Under section 213A of the Act, Form

I–864, Affidavit of Support Under

Section 213A of the Act, is a legally

enforceable contract between the

sponsor and the Federal Government,

for the benefit of the sponsored

immigrant and of any Federal, State, or

local government agency or private

entity that provides the sponsored

immigrant with any means-tested public

benefit. The sponsor must sign the Form

I–864 before a notary public or a United

States Immigration Officer or Consular

Officer. By executing Form I–864, the

sponsor agrees to provide the financial

support necessary to maintain the

sponsored immigrant at an income that

is at least 125 percent of the Federal

poverty line, unless the obligation has

terminated. The sponsor also agrees to

reimburse any agencies which provide

means-tested public benefits to a

sponsored immigrant. The sponsor

must, under civil penalty, notify the

Service and the State(s) in which the

sponsored immigrant(s) reside of any

change in the sponsor’s address. Should

the sponsored immigrant obtain any

means-tested public benefit, with

certain exceptions, the agency that

provides the means-tested public benefit

may, after first making a written request

for reimbursement, sue the sponsor in

Federal or State court to recover the

unreimbursed costs of the means-tested

public benefit, including costs of

collection and legal fees. This interim

rule implements section 213A of the Act

by adding a new 8 CFR part 213a.

Intending immigrants who require an

affidavit of support under section 213A

of the Act

Under section 212(a)(4)(C) of the Act,

all family-sponsored immigrants,

including immediate relatives, are

inadmissible unless the petitioner has

executed an affidavit of support under

section 213A of the Act. Aliens who

immigrate under the classification for

battered spouses and children and

widow/widowers (see sections

204(a)(1)(A) (ii), (iii), or (iv) and

204(a)(1)(B) (ii) or (iii) of the Act) do not

require a Form I–864 to overcome the

public charge ground of inadmissibility.

The Act also provides that certain

employment-based immigrants under

section 203(b) of the Act are
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54347

inadmissible unless an affidavit of

support has been executed on their

behalf. Sections 212(a)(4(D) and

213A(f)(4)(A) of the Act state that an

employment-based immigrant requires

an affidavit of support if a relative of the

immigrant, or an entity in which a

relative of the immigrant has a

significant ownership interest, filed the

employment-based immigrant petition.

This interim rule defines a relative for

purposes of this section as a spouse,

parent, child, adult son or daughter, or

sibling, which are relationships

recognized in the Act as according

immigration benefits. Neither the statute

nor the legislative history defines the

term ‘‘significant ownership interest.’’

The Service examined the use of the

term in other statutes and regulations.

Several statutes and regulations defined

‘‘significant ownership interest’’ as a 5

percent ownership interest in a forprofit entity. See 26 U.S.C. 613A(d)(3)

and 26 CFR 1.613A–7 (for determining

relationship between entities for

purposes of determining limits on oil

and natural gas depletion allowances);

42 CFR 424.22(d)(1) (physician’s

interest in a home health agency); 45

CFR 94.3 and 42 CFR 50.603 (for

determining researcher’s interest in an

entity receiving research grants); 48 CFR

952.204–73(c) (for questions relating to

foreign ownership of certain Department

of Energy contractors). In only one

situation was ‘‘significant ownership

interest’’ defined to mean more than a

5 percent interest; 17 CFR 104.735–2

(for limiting investments of members of

the Commodity Futures Trading

Commission). And, in that case, it is a

10 percent ownership interest that is

deemed significant. Accordingly, this

interim regulation defines the term

‘‘significant ownership interest’’ as a 5

percent or greater ownership interest in

a for-profit entity.

Aliens who are ‘‘accompanying or

following to join’’ the beneficiary of a

petition pursuant to section 203(d) of

the Act are seeking an immigrant visa or

adjustment of status under the same

immigrant visa category as the

beneficiary of the immigrant visa

petition. See section 203(d) of the Act.

This interim regulation, therefore,

provides that a Form I–864 must be

executed on behalf of any

accompanying or following to join

spouse or child under section 203(d) of

the Act, if they are filing applications

for immigrant visas or adjustment of

status after December 19, 1997 in a

classification for which an affidavit of

support is required.

Affidavit of Support Sponsors Under

Section 213A of the Act

Section 212(a)(4)(C)(ii) of the Act

states that the person petitioning for the

alien’s admission on an immigrant

relative visa petition must execute an

affidavit of support in order for the alien

to overcome the ground of

inadmissibility. United States citizens

who petition for an orphan under 8 CFR

204.3 must also execute a Form I–864.

Similarly, under section 212(a)(4)(D) of

the Act, the relative who filed an

employment-based petition on behalf of

the immigrant or a relative who has a

significant ownership interest in the

entity which filed an employment-based

petition on behalf of the immigrant must

also execute an affidavit of support. The

petitioner must also sign and submit a

separate Form I–864 on behalf of any

spouse or children who accompany or

follow to join the principal beneficiary

of the immigrant visa petition. This

interim rule uses the term ‘‘sponsor’’ to

define the individual who executes an

affidavit of support. A sponsor must be

a natural person and cannot be a

corporation or other entity.

If there is a spouse or any children

immigrating with a sponsored

immigrant, the sponsor may complete

the Form I–864 for the principal

immigrant and sign and submit

photocopies of the completed form and

all accompanying documentation for

each spouse and/or child listed in part

3 of the Form I–864. The sponsor must

sign each photocopy of the form I–864

with an original signature before a

notary public or an Immigration or

Consular Officer. If a spouse or child

files an application for an immigrant

visa or adjustment of status 6 months or

more after the sponsor originally signed

the affidavit of support, the sponsor

must execute a new Form I–864 on his

or her behalf.

Sponsorship Requirements

Section 213A(f)(1) of the Act sets forth

the requirements to be a sponsor. The

individual executing the Form I–864

must be a citizen or national of the

United States or a lawful permanent

resident of the United States, be at least

18 years of age, be domiciled in the

United States or any of its territories or

possessions, and demonstrate the means

to maintain an income of at lease 125

percent of the Federal poverty guideline

(100 percent of the poverty guideline for

sponsors on active duty in the Armed

Forces of the United States who are

petitioning for their spouse or child).

The term ‘‘domicile’’ is defined in

accordance with the generally accepted

definition of the term. A lawful

permanent resident who is living abroad

is considered to have a domicile in the

United States if he or she has applied

for and obtained preservation of

residence benefit under section 316(a)

or 317 of the Act. A U.S. citizen living

abroad whose employment meets the

requirements of section 319(b)(1) of the

Act will be considered to have a

domicile in the United States.

Sections 213A(f)(1)(E) and 213A(f)(5)

of the Act state that a sponsor, including

a joint sponsor, must demonstrate the

means to maintain an annual income

equal to at least 125 percent of the

Federal poverty line. Section 213A(f)(3)

of the Act reduces the income

requirements to 100 percent of the

Federal poverty line for persons on

active duty (other than active duty for

training) in the Armed Forces of the

Untied States who are filing petitions on

behalf of their spouse or child. Under

section 213A(h) of the Act, the ‘‘Federal

poverty line’’ means the level of income

equal to the official poverty line, as

defined by the Director of the Office of

Management and budget and revised

annually by the Secretary of Health and

Human Services, that is applicable to

the size of the sponsor’s household. For

purposes of the Form I–864, the Service

and Consular Posts will use the most

recent income-poverty guidelines

published in the Federal Register by the

Department of Health and Human

Services. These guidelines are updated

annually, and the Service and Consular

Posts will begin to use updated

guidelines on the first day of the second

month after the date the guidelines are

published in the Federal Register.

Section 213A(f)(6)(A)(iii) of the Act

defines the size of the sponsor’s

household for purposes of determining

ability to maintain income. The

sponsor’s household size includes the

sponsor, all persons who are related to

the sponsor by birth, marriage, or

adoption and who live at the same

residence as the sponsor, including the

sponsor’s spouse, and any other

dependents whom the sponsor has

lawfully claimed on the sponsor’s

personal Federal income tax return

(even if those dependents do no live

with the sponsor), plus all aliens

included in the current affidavit of

support, and any immigrants who have

been previously sponsored under

section 213A of the Act, unless the

obligation has terminated.

By signing the new affidavit of

support under section 213A of the Act,

the sponsor agrees to provide support to

maintain the sponsored immigrant(s) at

or above 125 percent of the Federal

poverty line. See section 213A(a)(1)(A)

of the Act. Because the sponsor has an
54348 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

obligation to support the sponsored

immigrant(s) at or above 125 percent of

the poverty line, for purposes of the

Form I–864, the sponsor’s household

size is increased by the number of

immigrants sponsored in the affidavit of

support. This applies to all affidavits of

support under section 213A of the Act,

regardless of whether the sponsored

immigrant(s) will be living in the same

residence as the sponsor. Therefore,

under this interim rule, the sponsor’s

ability to maintain income is measured

against the number of family members

residing with the sponsor and other

dependents, plus any persons for whom

the sponsor has previously executed a

Form I–864 for whom the support

obligation has not terminated, and the

number of immigrants sponsored in the

current affidavit of support.

Section 213A(f)(6)(A)(i) of the Act

provides that a sponsor must provide a

copy of the sponsor’s individual Federal

income tax return for each of the 3 most

recent tax years, and that the sponsor

must certify under penalty of perjury

that the copies are true and correct

copies of the returns as filed with the

Internal Revenue Service (IRS). The new

Form I–864 includes a certification that

any attached tax returns are true and

correct copies. Accordingly, this interim

rule requires the sponsor to attach his or

her Federal income tax returns as filed

with the IRS for each of the 3 most

recent tax years. If the sponsor has not

filed tax returns for any of the 3 most

recent tax years, he or she must explain

his or her failure to file. For purposes

of demonstrating means to maintain

income, the total income, before

deductions, in the sponsor’s tax return

for the most recent taxable year will be

generally determinative. See section

213A(f)(6)(B) of the Act. If the sponsor

can establish that he or she was not

legally obligated to file a Federal income

tax return for any of the 3 most recent

tax years, other evidence of annual

income may be considered.

In order to meet the income threshold,

the sponsor may rely on his or her own

income, the income of his or her spouse,

and the income of any other individuals

who are related to the sponsor by birth,

marriage, or adoption, and have been

living in the sponsor’s residence for the

previous 6 months or who are listed as

dependents on the sponsor’s most

recent income tax return. In order to

rely on the income of these other

persons, however, the sponsor must

include with the affidavit of support a

written contract on Form I–864A,

Contract Between Sponsor and

Household Member, between the

sponsor and each person whose income

the sponsor will rely on to meet the

income threshold. This written contract

will provide that each person whose

income the sponsor will rely on has

agreed, in consideration of the sponsor’s

signing of the Form I–864, to assist the

sponsor in supporting the sponsored

immigrant(s), to be held jointly and

severally liable for payment of any

reimbursement obligation that the

sponsor may incur, and to submit to the

personal jurisdiction of any competent

court.

If the sponsor will rely on the income

of a member of the sponsor’s household

who is also the immigrant who is

sponsored in the affidavit of support

being filed, the sponsored immigrant

need not sign a Form I–864A, unless the

sponsored immigrant’s income will be

used to determine the sponsor’s ability

to support a spouse or any children

listed in Part 3 of Form I–864 who are

immigrating with the sponsored

immigrant. If there is no spouse or child

immigrating with the sponsored

immigrant, then there will be no need

for the sponsored immigrant to sign a

Form I–864A. If, however, the sponsor

seeks to rely on a sponsored immigrant’s

income to establish the sponsor’s ability

to support the sponsored immigrant’s

spouse and/or children, then the

sponsored immigrant whose income is

to be relied on must sign the Form I–

864A, agreeing to make his or her

income available to support the other

sponsored immigrants. Either the

sponsor, as a party to the contract, or the

sponsored immigrant(s) and any

Federal, State, local, or private agency,

as third party beneficiaries, will be able

to bring a civil action to enforce the

written contract.

Federal individual income tax returns

for the 3 most recent tax years must be

attached to the Form I–864 for each

individual whose income is used to

qualify. These individuals must certify

on Form I–864A, under penalty of

perjury, that any attached tax returns are

true and correct copies of the returns as

submitted to the IRS. If any of these

individuals has no legal obligation to

file a Federal income tax return for any

of the 3 most recent tax years, he or she

must explain his or her failure to file

and provide other evidence of annual

income. The sponsor and any other

individual whose income is used to a

qualify must also submit current

evidence of employment or selfemployment (if any).

After calculating household income,

the sponsor must determine whether his

or her total income level meets or

exceeds the poverty guidelines, based

on the applicable household size,

including family members residing with

the sponsor, dependents, and any

immigrants sponsored in the Form I–

864 being filed or in a previous Form I–

864 where the obliagion has not

terminated. There may be instances in

which an Immigration or Consular

Officer may question the sponsor’s

ability to maintain income based on the

sponsor’s current employment situation,

on the Federal income tax returns for

the 3 most recent tax years, or on receipt

of welfare benefits.

If the petitioner is unable to

demonstrate the means to maintain

income equal to at least 125 percent of

the poverty line, the intending

immigrant is inadmissible under section

212(a)(4) of the Act, unless the

petitioner and/or the sponsored

immigrant(s) demonstrate significant

assets which are available for the

support of the sponsored immigrant(s)

or a joint sponsor also executes a Form

I–864. In order to be a joint sponsor, the

individual must execute a separate

Form I–864 and must accept joint legal

responsibility with the petitioning

sponsor and have an income and/or

assets, based on his or her household

size, including dependents and the

number of persons previously and

currently sponsored on Form I–864,

which meets or exceeds 125 percent of

the Federal poverty line. See section

213A(f)(5) of the Act.

Under section 213A(f)(6)(A)(ii) of the

Act, a sponsor may demonstrate the

means to maintain income through

demonstration of significant assets of

the sponsor and/or the sponsored

immigrant(s), if such assets are available

for the support of the sponsored

immigrant(s). This section allows either

the sponsor or the sponsored

immigrant(s) to demonstrate that he or

she owns significant assets which

enable the sponsor to demonstrate that

sufficient resources exist to support the

sponsored immigrant(s), even if the

sponsor’s household income is below

the Federal poverty line. The sponsor

may also rely on the assets of any

individuals who are listed as

dependents on the sponsor’s tax return

for the most recent tax year or any

individuals who are related to the

sponsor by birth, marriage, or adoption

and have been living in the sponsor’s

residence for the previous 6 months,

provided that such individuals execute

a contract on Form I–864A. Because

section 213A(f)(6)(A)(ii) of the Act

specifically permits the sponsor to rely

on the assets of the immigrant

sponsored in the affidavit of support

being filed, the sponsored immigrant is

not required to sign Form I–864A in

order for the Consular Officer or

Immigration Officer to consider the

sponsored immigrant’s assets. To
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54349

reiterate, a sponsored immigrant who is

a member of the sponsor’s household is

required to sign a Form I–864A only if

the sponsor will rely on that sponsored

immigrant’s income to show the

sponsor’s ability to support a spouse or

child immigrating with the sponsored

immigrant.

The Service has determined that

assets must be sufficient to support the

intending immigrant(s) for at least 5

years, if necessary. Under section 403(a)

of the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996,

Public Law 104–194, any alien (with

certain exceptions) who obtains lawful

permanent resident status after

enactment is ineligible for any Federal

means-tested public benefit for a period

of 5 years. In addition, 5 years is the

general residency requirement to qualify

for naturalization. See section 316(a) of

the Act. This interim rule, therefore,

provides that significant assets must

total at least five times the difference

between the Federal poverty line and

the sponsor’s household income.

Effect of Affidavit of Support

Under section 213A(a)(1) of the Act,

the execution of an affidavit of support

under section 213A of the Act, coupled

with the sponsored immigrant’s

acquisition of permanent residence,

creates a contract between the sponsor

and the U.S. Government which is

legally enforceable against the sponsor

by the sponsored immigrant, any

Federal, State, or local governmental

agency, or by any other entity which

provides any means-tested public

benefits to the sponsored immigrant.

The sponsor is obligated to reimburse

government agencies and private

entities which provide means-tested

public benefits to the sponsored alien.

Section 423(d) of the Personal

Responsibility and Work Opportunity

Reconciliation Act of 1996 specifically

exempts some benefits from the

reimbursement requirement. This

interim rule defines ‘‘means-tested

public benefit’’ as both a ‘‘Federal

means-tested public benefit’’ and a

‘‘State means-tested public benefit.’’ The

former is defined as any public benefit

funded in whole or in part by funds

provided by the Federal Government

that the Federal agency administering

the Federal funds defines as a ‘‘Federal

means-tested public benefit.’’ As of the

date of the publication of this interim

rule, two Federal agencies had

published notices stating which of the

programs they administer are

considered ‘‘Federal means-tested

public benefits.’’ The Department of

Health and Human Services has

determined that payments under the

Medicaid and Temporary Assistance to

Needy Families (TANF) programs are

the only ‘‘Federal means-tested public

benefits’’ paid by that agency which are

not otherwise exempted from

reimbursement and relevant provisions

of the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996.

See 62 FR 45256 (August 26, 1997). The

Social Security Administration has

determined that the only ‘‘Federal

means-tested public benefits’’ paid by

that agency which are not otherwise

exempted from reimbursement and

relevant provisions of the Personal

Responsibility and Work Opportunity

Reconciliation Act of 1996 are

Supplemental Security Income (SSI)

payments made under Title XVI of the

Social Security Act. See 62 FR 45284

(August 26, 1997).

‘‘State means-tested public benefit’’ is

defined as any public benefit for which

no Federal funds are provided that a

State, State agency, or political

subdivision of a State defines as a

‘‘means-tested public benefit.’’ This

interim rule also indicates that Federal

agencies and States should issue

determinations of which benefits are

considered ‘‘means-tested public

benefits’’ before the effective date of this

rule or as soon as possible thereafter. In

addition, no benefit is considered to be

a means-tested public benefit if it is a

benefit described in sections 401(b),

411(b), 422(b), or 423(d) of Public Law

104–193. Means-tested benefits may be

determined on such bases as income,

resources, or the financial need of an

individual, household, or unit.

Under section 213A(a)(2) of the Act,

the sponsor’s obligation terminates

upon the sponsored immigrant’s

naturalization or when the sponsored

immigrant has worked or can be

credited with 40 qualifying quarters of

work. This interim rule also provides

that the sponsor’s obligation terminates

if the sponsor or the sponsored

immigrant dies, or if the sponsored

immigrant ceases to hold permanent

resident status and has departed the

United States. Termination of the

support obligation does not relieve the

sponsor, or the sponsor’s estate, of any

liability for reimbursement that accrued

before the termination of the support

obligation. If the sponsor can establish

that the obligation to support an

immigrant under a previous Form I–864

no longer exists, that immigrant will not

be considered as part of the sponsor’s

household size for purposes of

determining the sponsor’s income

requirement when executing a new

affidavit of support on behalf of another

alien.

Sponsor’s Change of Address

Obligations

Under section 213A(d) of the Act, the

sponsor must notify the Attorney

General and the State in which each

sponsored immigrant is currently a

resident of the sponsor’s new address

within 30 days of any change of address.

If the sponsor fails to do so, the sponsor

may be subject to a civil penalty. The

sponsor meets the obligation of

reporting a change of address by

completing Form I–865, Sponsor’s

Notice of Change of Address, and filing

the completed Form I–865 with the

Service. Any agency which provides

means-tested public benefits may obtain

information on the sponsor’s current

address through the Service’s

established system for verifying alien

status. Since this information will be

available to an agency through this

verification procedure, the Service will

consider the sponsor’s filing of Form I–

865 with the Service as sufficient for

complete compliance with requirements

of section 213A(d)(1) of the Act. This is,

a sponsor will be considered to have

given notice to both the Service and the

State where the sponsored immigrant

resides, and so will avoid a civil penalty

under section 213A(d)(2) of the Act, if

the sponsor files a properly completed

Form I–865 with the Service in

accordance with new 8 CFR 213a.3. The

States do not have independent

authority to impose a civil penalty

under section 213A(d) of the Act;

section 213A(d)(2) expressly gives

enforcement authority to the Attorney

General. This rule is not intended to

preempt a State from requiring a

sponsor to file a change of address with

the State, as well as with the Service.

But failure to comply with a State’s

requirement, if any, will not subject the

sponsor to a civil penalty under section

213A(d) of the Act, if the sponsor filed

the Form I–865 with the Service.

The Service will adjudicate cases

involving imposition of the civil penalty

for failure to comply with the section

213A(d) change of address requirement

under the previously established

procedures for cases involving civil

penalties under the Act. These

procedures are codified at 8 CFR part

280. If the sponsor is a lawful

permanent resident, the sponsor must

also comply with the change of address

requirement imposed by 8 CFR 265.1, in

addition to the change of address

requirement of section 213A(d) of the

Act.

Actions for Reimbursement

This interim rule implements section

213A(b) of the Act by specifying the
54350 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

manner in which an agency or entity

requesting reimbursement must notify

the sponsor of his or her obligations and

how a Federal, State, or local agency or

private entity may take judicial action to

obtain reimbursement. Requests for

reimbursement must be served by

personal service, as defined by 8 CFR

103.5a(a)(2). The request for

reimbursement shall specify the date the

sponsor’s affidavit of support was

received by the Service or Consular

office, the sponsored immigrant’s name,

alien registration number, address, and

date of birth, as well as the type(s) of

means-tested public benefit 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. 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. The request

for reimbursement shall also notify the

sponsor that the 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. If the

sponsor fails to respond to a formal

request for reimbursement issued by a

nongovernmental entity or a

government agency within 45 days by

indicating a willingness to commence

payment, the agency or entity may sue

the sponsor in State or Federal court.

Section 213A(b)(2) of the Act sets forth

the procedures to compel

reimbursement. Section 213A(b)(2)(C)

fixes a 10-year statute of limitations on

suits to collect reimbursement.

Reports to Congress

Section 213A(i)(3) of the Act and

section 565 of IIRIRA require the

Attorney General to make periodic

reports to Congress. This interim rule

incorporates these reporting

requirements into 8 CFR 213a.4(b).

Under section 421 of the Personal

Responsibility and Work Opportunity

Reconciliation Act of 1996, an agency

that provides means-tested public

benefits may deem the income and

resources of an immigrant to include the

income of any sponsor (including the

income of the sponsor’s spouse) who

has executed an affidavit of support on

behalf of the immigrant. However, if an

agency determines that without its

assistance the immigrant would be

unable to obtain food and shelter, the

amount of income that may be

attributed to the immigrant is limited to

the support the sponsor and spouse

actually provide to the sponsored

immigrant. If the agency makes this

determination, section 421(e)(2) requires

the agency to notify the Attorney

General of information that the Attorney

General would need to make the report

required under section 565 of IIRIRA.

Notice and Comment Requirements

Sections 531(b) and 551(c) of the

IIRIRA, Public Law 104–208, make the

new affidavit of support requirement

effective as of the date that is 60 days

after promulgation of the new affidavit

of support form. The Service is

promulgating the new affidavit of

support form simultaneously with the

publication of this interim rule. To

begin using the new affidavit of support

form without this accompanying rule

would cause widespread confusion

about these new requirements. Only by

having this rule in effect on the date that

aliens must begin submitting the new

affidavit of support can this confusion

be mitigated. For this reason, the

Commissioner finds that good cause

exists to make this rule effective without

observing the provisions of 5 U.S.C. 553

for prior notice and comment. The

Commissioner nevertheless invites

written comments on this interim rule

and, in formulating the final rule, will

consider any written comments that are

received timely.

Regulatory Flexibility Act

The Commissioner has determined, in

accordance with 5 U.S.C. 605(b), that

this rule 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 the individual sponsor

and the sponsored immigrant, who are

not 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. 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 make certain reports

to the Service. 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.’’

Executive Order 12866

The Commissioner considers this rule

to be a ‘‘significant regulatory action’’

under Executive Order 12866, section

3(f), Regulatory Planning and Review,

because, over time, it will have a

significant economic impact on the

Federal Government in excess of $100

million.

Under provisions included in the

Personal Responsibility and Work

Opportunity Reconciliation Act of 1996,

most immigrants are barred from

receiving SSI benefits and food stamps

until they become U.S. citizens or can

be credited with 40 quarters of work.

This restriction applies to most newly

arriving immigrants, and to any aliens

who were already admitted as

immigrants, but whose eligibility for

benefits was not preserved under the

Balanced Budget Act of 1997, Public

Law 105–33. Most immigrants are also

barred from most other Federal meanstested public benefits for their first 5

years in the United States. Veterans and

persons on active duty in the U.S.

military, their spouses and dependent

children and their unremarried

surviving spouses are exempt from the

5-year ban. Refugees, asylees, aliens

whose deportation or removal is being

withheld, immigrants who are CubanHaitian entrants and certain Amerasian

immigrants are also exempt. American

Indians born in Canada referred to in

section 289 of the Act are exempt from

the 5-year ban with respect to SSI and

Medicaid benefits only. The number of

newly admitted permanent residents in

these categories who are subject to the

affidavit of support requirement in

section 213A of the Act is small.

This regulation implements

provisions of the Personal

Responsibility Act and the Illegal

Immigration Reform and Immigrant

Responsibility Act of 1996 which

require that all family-based and certain

employment-based immigrants be

sponsored through legally enforceable

affidavits of support. If a sponsored

immigrant applies for Federal meanstested public benefits, all of the income

and resources of the sponsor and the

sponsor’s spouse will be deemed to be

available to the sponsored immigrant in

determining eligibility for the benefit. In

most cases this would make the

sponsored immigrant ineligible for the

benefit sought. Affidavits of support

will be enforceable against sponsors by

any agency providing Federal, State, or

local means-tested benefits, with certain
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54351

exceptions (notably emergency medical

care, disaster relief, school lunches,

foster care, student loans, and Head

Start benefits) to sponsored immigrants

until the sponsored immigrants become

U.S. citizens or can be credited with 40

quarters of work.

Significant savings due to deeming of

the income and resources of sponsors

and their spouses to sponsored

immigrants will accrue only after the

fifth anniversary of welfare and illegal

immigration reform implementation.

Before that time, savings would be

minimal since very few new immigrants

would be exempt from the bar to

receiving benefits, and only a small

fraction of that group would be expected

to apply for Federal means-tested

benefits, resulting in the deeming of

sponsors’ income and resources.

Estimates of cost savings due to the

deeming of sponsors’ incomes to

immigrants who seek benefits made in

early 1996 during consideration of

illegal immigration reform legislation

are not applicable because they could

not take into account the enactment of

welfare reform in August 1996 which

preempted the impacts of sponsor

deeming by making most permanent

resident aliens, with or without

sponsors, ineligible for Federal meanstested public benefits for 5 years, and

potentially longer for SSI and food

stamps.

Because of the 5-year ban on

immigrant access to means-tested public

benefits, the Congressional Budget

Office has projected that savings due to

the deeming of sponsor’s income will

not begin to be realized until the first

immigrants who arrived after the

enactment of welfare reform are no

longer subject to the 5-year ban.

According to the Congressional Budget

Office, the greatest savings to the

Federal Government will be realized in

the Medicaid program since most

permanent residents will remain

ineligible for SSI and food stamp

benefits until they become U.S. citizens,

at which time sponsor deeming will no

longer apply. Therefore, savings in the

Medicaid program due to the deeming

of sponsor income and resources

through the legally enforceable affidavit

of support are projected as first

becoming significant in the sixth full

year following implementation, fiscal

year 2003. Based on Congressional

Budget Office data, savings to the

Medicaid program resulting from the

new sponsorship deeming provisions

are estimated to be about $300 million

in that year. Savings due to the deeming

of sponsor income and resources to

sponsored immigrants who would

otherwise apply for Medicaid are

estimated to increase to about $600

million in 2004, $900 million in 2005,

$1.3 billion in 2006, and $1.7 billion in

2007. Reduced Federal outlays

beginning in 2003 are transfers from

permanent resident aliens and their

families to the U.S. Treasury to the

extent that third parties such as States

and charities do not increase their

spending to cover these benefits.

There will also be administrative

costs to the Federal Government

associated with these provisions. Some

of these costs may be offset by

subsequent adjustments to fees for

Consular immigrant visa and Service

adjustment of status applications, a cost

borne primarily by new family-based

immigrants to the United States. The

Department of State and the

Immigration and Naturalization Service

will print and distribute the new

affidavits of support forms to their

offices in the United States and

overseas, and will review affidavits of

support for an estimated 565,000 familybased immigrants annually. The number

of employment-based immigrants who

will need affidavits of support is

unknown but assumed to be small.

Under current procedures Consular

and Immigration Officers determine

whether each new immigrant is likely to

become a public charge, either through

examining a non-legally binding

affidavit of support or other

documentation, including

demonstration of significant assets or

job offers in the United States. The new

legally enforceable affidavit and

supporting documentation are likely to

take longer to review for many principal

immigrants. The cost of the additional

review of the new affidavit of support is

not expected to exceed $1 million

annually.

The Immigration and Naturalization

Service will also maintain automated

sponsorship information on some

565,000 new family-based immigrants

annually and make this information

available to benefit-providing agencies.

Federal and State agencies

administering Federal means-tested

public benefit programs will also have

costs associated with deeming sponsor

income and resources and recovering

the costs of any benefits provided to

sponsored immigrants. These costs will

depend on the number of cases where

sponsored immigrants apply for meanstested benefits and the number of

instances in which agencies provide

means-tested public benefits and

subsequently request sponsors to

reimburse the cost of the benefits and/

or sue for recovery of these funds.

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.

Supporting immigrants so that they

will not become public charges may also

impose costs on sponsors. These costs

are hard to quantify since in many cases

the sponsored immigrants will become

largely or entirely self-supporting.

Under the sponsorship provisions of the

law, sponsors are required to support

the immigrants for whom they have

signed affidavits of support at 125

percent of the poverty line until the

sponsorship obligation terminates,

usually through the naturalization of the

sponsored immigrants.

Executive Order 12612

This rule does not have substantial

direct effects on the States, on the

relationship between the National

Government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. The rule will

benefit the States by protecting their

treasuries from the burden of supporting

immigrants who are not entitled to

receive means-tested public benefits.

The burdens on the States under this

rule are the requirements (a) to request

reimbursement from the sponsor before

suing the sponsor for reimbursement

and (b) to notify the Service, if the State

elects to make a determination under

section 421(e) of the Personal

Responsibility and Work Opportunity

Act of 1996. These requirements simply

incorporate requirements that already

exist by statute. Moreover, the States

remain free to determine whether to sue

for reimbursement in a given case, or to

make a determination under section

421(e). Therefore, in accordance with

Executive Order 12612, the

Commissioner determines that this rule

does not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment.
54352 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

Executive Order 12988 Civil Justice

Reform

This interim rule meets the applicable

standards set forth in section 3(a) and

3(b)(2) of Executive Order 12988.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is a major rule as defined in

section 804 of the Small Business

Regulatory Enforcement Fairness Act of

1996. This rule may result in an annual

effect on the economy of $100 million

or more, as discussed in the preceding

paragraphs pertaining to Executive

Order 12866.

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–864A,

Contract Between Sponsor and

Household Member, and Form I–865,

Sponsor’s Notice of Change of Address),

have been approved by the Office of

Management and Budget (OMB) under

the provisions of the Paperwork

Reduction Act. The OMB control

numbers for these collections are

contained in 8 CFR 299.5, Display of

control numbers.

List of Subjects

8 CFR Part 213a

Administrative practice and

procedure, Aliens, Affidavits of

Support, Immigrants Immigration and

Nationality Act.

8 CFR Part 299

Aliens, Forms, Immigration,

Reporting and recordkeeping

requirements.

Accordingly, chapter I of title 8 of the

Code of Federal Regulations is amended

as follows:

1. A new part 213a is added, to read

as follows:

PART 213a—AFFIDAVITS OF

SUPPORT ON BEHALF OF

IMMIGRANTS

Sec.

213a.1 Definitions.

213a.2 Use of affidavit of support.

213a.3 Notice of change of address.

213a.4 Actions for reimbursement, public

notice, and congressional reports.

213a.5 Relationship of this part to other

affidavits of support.

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

§ 213a.1 Definitions.

As used in this part, the term:

Domicile means the place where a

sponsor has a residence, as defined in

section 101(a)(33) of the Act, in the

United States, with the intention to

maintain that residence for the

foreseeable future, provided, that a

permanent resident who is living abroad

temporarily shall be 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 shall be 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.

Federal poverty line means the level

of income equal to the poverty

guidelines as issued by the Secretary of

Health and Human Services in

accordance with 42 U.S.C. 9902 that is

applicable to a household of the size

involved. For purposes of considering

the Form I–864, Affidavit of Support

Under Section 213A of the Act, the

Service and Consular Posts will use the

most recent income-poverty guidelines

published in the Federal Register by the

Department of Health and Human

Services. These guidelines are updated

annually, and the Service and Consular

Posts will begin to use updated

guidelines on the first day of the second

month after the date the guidelines are

published in the Federal Register.

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 sponsor’s

income and may also include the

incomes of any individuals who either

are related to the sponsor by birth,

marriage, or adoption and have been

living in the sponsor’s residence for the

previous 6 months or are lawfully listed

as dependents on the sponsor’s Federal

income tax return for the most recent

tax year, even if such dependents do not

live at the same residence as the

sponsor.

Household size means the number

obtained by adding: (1) The sponsor and

all persons living at the same residence

with the sponsor who are related to the

sponsor by birth, marriage, or adoption;

(2) all persons whom the sponsor has

claimed as a dependent on the sponsor’s

Federal income tax return for the most

recent tax year, even if such persons do

not live at the same residence as the

sponsor; and (3) the number of aliens

the sponsor has sponsored under any

prior 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 live at the same residence as the

sponsor.

Immigration Officer, solely for

purposes of this part, includes a

Consular Officer, as defined by section

101(a)(9) of the Act, as well as an

Immigration Officer, as defined by

§ 103.1(j) of this chapter.

Income means an individual’s gross

income, for purposes of the individual’s

Federal income tax liability, including a

joint income tax return.

Intending immigrant means any

beneficiary of an immigrant visa

petition filed under section 204 of the

Act, including any alien who will

accompany or follow-to-join the

principal beneficiary.

Means-tested public benefit means

either a Federal means-tested public

benefit, which is any public benefit

funded in whole or in part by funds

provided by the Federal Government

that the Federal agency administering

the Federal funds has determined to be

a Federal means-tested public benefit

under the Personal Responsibility and

Work Opportunity Reconciliation Act of

1996, Public Law 104–193, or a State

means-tested public benefit, which is

any public benefit for which no Federal

funds are provided that a State, State

agency, or political subdivision of a

State has determined to be a meanstested public benefit. No benefit shall be

considered to be a means-tested public

benefit if it is a benefit described in

sections 401(b), 411(b), 422(b) or 423(d)

of Public Law 104–193.

Program official means the officer or

employee of any Federal, State, or local

government agency or of any private

agency that administers any meanstested public benefit program who has

authority to act on the agency’s behalf

in seeking reimbursement of meanstested public benefits.

Relative means a husband, wife,

father, mother, child, adult son, adult

daughter, brother, or sister.

Significant ownership interest means

an ownership interest of 5 percent or

more in a for-profit entity that filed an

immigrant visa petition to accord a

prospective employee an immigrant

status under section 203(b) of the Act.

Sponsor means a person who either is

eligible to execute or has executed an

affidavit of support under this part.

Sponsored immigrant means an

immigrant on whose behalf a sponsor

has executed an affidavit of support

under this part, including any spouse or

child who will accompany or follow-tojoin the beneficiary of an immigrant visa

petition filed by a sponsor.
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54353

§ 213a.2 Use of affidavit of support.

(a) General. (1) 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 a 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. An affidavit of support is executed

when a sponsor signs a Form I–864

before a notary public or an Immigration

or Consular Officer and that form I–864

is submitted to an Immigration or

Consular officer. The sponsor must

execute a separate affidavit of support

for each visa petition beneficiary and for

each alien who will accompany or

follow-to-join a visa petition

beneficiary. For any spouse or children

immigrating with a sponsored

immigrant, the sponsor may execute an

affidavit of support by submitting

photocopies of the Form I–864 and all

accompanying documentation, but each

photocopy of the Form I–864 must have

an original signature. Under this rule, a

spouse or child is immigrating with a

sponsored immigrant if he or she is

listed in Part 3 of Form I–864 and

applies for an immigrant visa or

adjustment of status within 6 months of

the date the Form I–864 is originally

signed. The signature on the Form I–

864, including photocopies, must be

notarized by a notary public or signed

before an Immigration or Consular

Officer.

(2) (i) Except for cases specified in

paragraph (a)(2)(ii) of this section,

paragraph (a)(1) of this section applies

to any application for an immigrant visa

or for adjustment of status filed on or

before December 19, 1997, in which an

intending immigrant seeks an immigrant

visa, admission as an immigrant, or

adjustment of status as:

(A) An immediate relative under

section 201(b)(2)(A)(i) of the Act;

(B) A family-based immigrant under

section 203(a) of the Act; or

(C) An employment-based immigrant

under section 203(b) of the Act, if a

relative of the intending immigrant

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.

(ii) Paragraph (a)(1) of this section

shall not apply if the intending

immigrant:

(A) Filed a visa petition on his or her

own behalf pursuant to section

204(a)(1)(A)(ii), (iii), or (iv) or section

204(a)(1)(B)(ii) or (iii) of the Act, or who

seeks to accompany or follow-to-join an

immigrant who filed a visa petition on

his or his own behalf pursuant to

section 204(a)(1)(A)(ii), (iii), or (iv) or

section 204(a)(1)(B)(ii) or (iii) of the Act;

or

(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 before December 19, 1997.

(b) Affidavit of support sponsors. The

following individuals must execute

Form I–864 on behalf of the intending

immigrant in order for the intending

immigrant to be found admissible on

public charge grounds:

(1) For immediate relatives and

family-based immigrants. The person

who filed the immigrant visa petition,

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 as a family-sponsored

immigrant, must execute a Form I–864

on behalf of the intending immigrant.

(2) For employment-based

immigrants. A relative of an intending

immigrant seeking an immigrant visa

under section 203(b) of the Act who

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.

(c) Sponsorship requirements. (1)

General. A sponsor must:

(i) Be at least 18 years of age;

(ii) Be domiciled in the United States

or any territory or possession of the

United States; and

(iii) (A) Be a citizen of the United

States or an alien lawfully admitted for

permanent residence in the case

described in paragraph (a)(2)(i)(A) or (B)

of this section; or

(B) Be a citizen or national of the

United States or an alien lawfully

admitted for permanent residence in the

case described in paragraph (a)(2)(i)(C)

of this section or if the individual is a

joint sponsor.

(2) Demonstration of ability to support

sponsored immigrants. In order for the

intending immigrant to overcome the

public charge ground of inadmissibility,

the sponsor must demonstrate the

means to maintain 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 income must equal at least

100 percent of the Federal poverty line.

(i) Proof of income. (A) The sponsor

must file with the Form I–864 a copy of

his or her Federal income tax returns for

each of the 3 most recent taxable years,

if he or she had a legal duty to file. By

executing Form I–864, the sponsor

certifies under penalty of perjury under

United States law that each return is a

true and correct copy 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 any

of the 3 most recent tax years, the

sponsor must explain why he or she had

no legal duty to a file a Federal income

tax return for each year for which no

Federal income tax return is available.

If the sponsor had no legal obligation to

file a Federal income tax return, he or

she may submit other evidence of

annual income.

(C) (1) The sponsor’s ability to meet

the income requirement will be

determined based on the sponsor’s

household income. The sponsor may

rely entirely on his or her own income

as his or her household income if it is

sufficient to meet the requirement. If

needed, the sponsor may include in his

or her household income the incomes of

other individuals if they either are

related to the sponsor by birth, marriage,

or adoption and have been living in the

sponsor’s residence for the previous 6

months or are lawfully listed as

dependents on the sponsor’s Federal

income tax return for the most recent

tax year. In order for the Immigration

Officer or Consular Officer to consider

the income of any of these individuals,

the sponsor must include with the Form

I–864 a written contract on Form I–

864A between the sponsor and each

other individual on whose income the

sponsor seeks to rely.

Under this written contract each other

individual must agree, 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

sponsored 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 sponsored

immigrants and any Federal, State, or

local agency or private entity that

provides a means-tested public benefit

to a sponsored immigrant are third party

beneficiaries of the contract between the

sponsor and the other individual or

individuals on whose income the
54354 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

sponsor relies and may bring an action

to enforce the contract in the same

manner as third party beneficiaries of

other contracts. If there is no spouse or

child immigrating with the sponsored

immigrant, then there will be no need

for the sponsored immigrant to sign a

Form I–864A, even if the sponsor will

rely on the income of the sponsored

immigrant to meet the income

requirement. If, however, the sponsor

seeks to rely on a sponsored immigrant’s

income to establish the sponsor’s ability

to support the sponsored immigrant’s

spouse or children, then the sponsored

immigrant whose income is to be relied

on must sign the Form I–864A.

(2) If the sponsor relies on the income

of any other individual, the sponsor

must also attach that individual’s

Federal income tax returns for each of

the 3 most recent tax years. That

individual must certify, under penalty

of perjury, on Form I–864A that each tax

return submitted is a true and correct

copy of the Federal income tax return

filed with the Internal Revenue Service.

If that individual has no legal obligation

to file a Federal income tax return, he

or she must explain and submit other

evidence of annual income. If the

individual whose income the sponsor

will rely on is not lawfully claimed as

a dependent on the sponsor’s Federal

income tax return for the most recent

tax year, then the sponsor must also

attach proof of the relationship between

the sponsor and that individual and

proof of residency in the sponsor’s

residence during at least the preceding

6 months.

(ii) Proof of employment or selfemployment. The sponsor must attach

evidence of current employment which

provides the sponsor’s salary or wage, or

evidence of current self employment. If

the sponsor is unemployed or retired,

the sponsor must state the length of his

or her unemployment or retirement. The

same information must be provided for

any other person whose income is used

to qualify under this section.

(iii) 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 shall first

calculate the total income attributable to

the sponsor under paragraph (c)(2)(i)(C)

of this section.

(B) Number of persons to be

supported. The sponsor shall then

determine his or her household size as

defined in § 213a.1.

(C) Sufficiency of Income. The

sponsor’s income shall be considered

sufficient if the household income

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 § 213a.1, 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.

(iv) Inability to meet income

requirement. If the sponsor is unable to

meet the minimum income requirement

in paragraph (c)(2)(iii) of this section,

the intending immigrant is inadmissible

unless the sponsor and/or the intending

immigrant demonstrates significant

assets or a joint sponsor executes a

separate Form I–864.

(A) 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. A sponsored immigrant

may submit evidence of the sponsored

immigrant’s assets as a part of the

affidavit of support, even if the

sponsored immigrant is not required to

sign a Form I–864A. The assets of any

person who has signed a Form I–864A

will also be considered in determining

whether the assets are sufficient to meet

this requirement. The combined cash

value of all the assets (the total value of

the assets less any offsetting liabilities)

must exceed 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 under this

section).

B. 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. A joint

sponsor must meet the eligibility

requirements under paragraph (c)(1) 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.

(v) Immigration or Consular Officer’s

determination of insufficient income

and/or assets. Notwithstanding

paragraphs (c)(2)(iii) (C) and (c)(2)(iv)

(A) and (B) of this section, an

Immigration Officer or Consular Officer

may determine the income and/or assets

of the sponsor or a joint sponsor to be

insufficient if the Immigration Officer or

Consular Officer determines, based on

the sponsor’s or joint sponsor’s

employment situation, income for the

previous 3 years, assets, or receipt of

welfare benefits, that the sponsor or

joint sponsor cannot maintain his or her

income at the required level.

(vi) Verification of employment,

income and assets. The 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.

(vii) Effect of fraud or material

concealment or misrepresentation. If the

Consular Officer or Immigration Officer

finds that the sponsor or joint sponsor

has concealed or misrepresented facts

concerning income, or household size,

or any other material fact, the Consular

Officer or Immigration Officer shall

conclude that the affidavit of support is

not sufficient to establish that the

sponsored immigrant is not likely to

become a public charge, and the sponsor

or joint sponsor may be liable for

criminal prosecution under the laws of

the United States.

(d) Legal effect of affidavit of support.

Execution of a Form I–864 under this

section creates a contract between the

sponsor and the U.S. Government for

the benefit of the sponsored immigrant,

and of any Federal, State, or local

governmental agency or private entity

that administers any means-tested

public benefits program. The sponsored

immigrant, or any Federal, State, or

local governmental agency or private

entity that provides any means-tested

public benefit to the sponsored

immigrant after the sponsored

immigrant acquires permanent resident

status, may seek enforcement of the

sponsor’s obligations through an

appropriate civil action.

(e) Termination of support obligation.

(1)(i) The sponsor’s support obligation

with respect to a sponsored immigrant

terminates 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 work;

provided, that the sponsored immigrant

is not credited with any quarter

beginning after December 31, 1996,

during which the sponsored immigrant

receives any Federal means-tested

public benefit;

(C) Ceases to hold the status of an

alien lawfully admitted for permanent

residence and has departed the United

States; or

(D) Dies.
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54355

(ii) The sponsor’s support obligation

also terminates if the sponsor dies.

(2) The termination of the sponsor’s

support obligation does not relieve the

sponsor (or the sponsor’s estate) of any

reimbursement obligation under section

213A(b) of the Act that accrued before

the support obligation terminated.

(f) In the case of an alien who seeks

to follow-to-join the principal sponsored

immigrant, as provided for by section

203(d) of the Act, the same sponsor who

filed the visa petition and affidavit of

support for the principal sponsored

immigrant must, at the time that the

alien seeks to follow-to-join the

principal sponsored immigrant, sign an

affidavit of support on behalf of the

alien who seeks to follow-to-join the

principal sponsored immigrant. If that

sponsor has died, then the alien who

seeks to follow-to-join the principal

sponsored immigrant shall be held to be

inadmissible, unless another person,

who would qualify as a joint sponsor if

the principal sponsor were still alive,

submits on behalf of the alien who seeks

to follow-to-join the principal sponsored

immigrant, an affidavit of support that

meets the requirements of this section.

If the original sponsor is deceased and

no other eligible sponsor is available,

the principal sponsored immigrant may

sign an affidavit of support on behalf of

the alien seeking to follow-to-join the

principal immigrant, if the principal

sponsored immigrant can meet the

requirements of paragraph (c) of this

section.

§ 213a.3 Notice of change of address.

(a) General. If the address of a sponsor

(including a 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 the Service no

later than 30 days after the change of

address becomes effective.

(b) Civil penalty. (1) Amount of

penalty. (i) Except as provided in

paragraph (b)(1)(ii) of this section, if the

sponsor fails to give notice in

accordance with paragraph (a) of this

section, the Service may impose on the

sponsor a civil penalty in an amount

within the penalty range established in

section 213A(d)(2)(A) of the Act.

(ii) If the sponsor, knowing that the

sponsored immigrant has received any

means-tested public benefit, fails to give

notice in accordance with paragraph (a)

of this section, the Service may impose

on the sponsor a civil penalty in an

amount within the penalty range

established in section 213A(d)(2)(B) of

the Act.

(2) Procedure for imposing penalty.

The procedure for imposing a civil

penalty under this paragraph follows

that which is established at 8 CFR part

280.

(c) Change of address. If the sponsor

is an alien, filing Form I–865 under this

section does not satisfy or substitute for

the change of address notice required

under § 265.1 of this chapter.

§ 213a.4 Actions for reimbursement,

public notice, and congressional reports.

(a) Requests for reimbursement.

Requests for reimbursement under

section 213A(b)(2) of the Act must be

served by personal service, as defined

by § 103.5a(a)(2) of this chapter. The

request for reimbursement shall specify

the date the sponsor’s affidavit of

support was received by the Service, the

sponsored immigrant’s name, alien

registration number, address, and date

of birth, as well as the types of meanstested 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. 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. The request

for reimbursement shall also notify the

sponsor that the 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. Prior

to filing a lawsuit against a sponsor to

enforce the 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 issues a written

request for reimbursement under section

213A(b)(1) of the Act. If a sponsored

immigrant, a Federal, State, or local

agency, or a private entity sues the

sponsor and obtains a final civil

judgment against the sponsor, the

sponsored immigrant, the Federal, State,

or local agency, or the private entity

shall mail a certified copy of the final

civil judgment to the Service’s Statistics

Branch, 425 I Street, NW., Washington,

DC 20536. 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.

(b) Federal, State, and local

government agencies should issue

public notice of determinations

regarding which benefits are considered

‘‘means-tested public benefits’’ prior to

December 19, 1997, the date the new

affidavit of support goes into effect, or

as soon as possible thereafter.

Additional notices should be issued

whenever an agency revises its

determination of which benefits are

considered ‘‘means-tested public

benefits.’’

(c) Congressional reports. (1) For

purposes of section 213A(i)(3) of the

Act, a sponsor shall be considered to be

in compliance with the financial

obligations of section 213A of the Act

unless the sponsored immigrant or a

Federal, State, or local agency or private

entity has sued the sponsor, obtained a

final judgment enforcing the sponsor’s

obligations under section 213A(a)(1)(A)

or 213A(b) of the Act, and mailed a

certified copy of the final judgment to

the Service’s Statistics Branch, 425 I

Street, NW., Washington, DC 20536.

(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 Service’s

Statistics Branch. The written notice

should include the reference

‘‘Determinations under 421(e) of the

Personal Responsibility and Work

Opportunity Reconciliation Act of

1996.’’

§ 213a.5 Relationship of this part to other

affidavits of support.

Nothing in this part precludes the

continued use of Form I–134, Affidavit

of Support (other than INA section

213A), or of Form I–361, Affidavit of

Financial Support and Intent to Petition

for Legal Custody for Public Law 97–359

Amerasian, in any case, other than a

case described in § 213a.2(a)(2), in

which these forms were used prior to

enactment of section 213A of the Act.

The obligations of section 213A of the

Act do not bind a person who executes

Form I–134 or Form I–361, although the

person who executes Form I–361

remains subject to the provisions of

section 204(f)(4)(B) of the Act and of

§ 204.4(i) of this chapter.
54356 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

1The regulatory citations contained in this final

rule refer to the regulation, as amended. As noted

above, the sections have been renumbered.

2The Board’s Rules have been implemented in a

manner consistent with these and other changes

described in this final rule.

PART 299—IMMIGRATION FORMS

2. The authority citation for part 299

continues to read as follows:

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

2.

3. Section 299.1 is amended by

adding the entries for Forms ‘‘I–864,’’

‘‘I–864A,’’ and ‘‘I–865’’ to the listing of

forms, in proper numerical sequence, to

read as follows:

§ 299.1 Prescribed forms.

* * * * *

Form No. Edition

date Title

* * * * *

I–864 ..... 10–06–97 Affidavit of Support

Under Section

213A of the Act.

I–864A ... 10–06–97 Contract Between

Sponsor and

Household Member.

I–865 ..... 10–06–97 Sponsor’s Notice of

Change of Address.

* * * * *

4. Section 299.5 is amended by

adding to the list of forms, in proper

numerical sequence, the entries for

Forms ‘‘I–864,’’ ‘‘I–864A’’ and ‘‘I–865’’

to read as follows:

§ 299.5 Display of control numbers.

* * * * *

INS form

No. INS form title

Currently

assigned

OMB control No.

* * * * *

I–864 ..... Affidavit of Support

under Section

213A of the Act.

1115–0214

I–864A ... Contract between

Sponsor and

Household Member.

1115–0214

I–865 ..... Sponsor’s Notice of

Change of Address.

1115–0215

* * * * *

Dated: October 8, 1997.

Doris Meissner,

Commissioner, Immigrant and Naturalization

Service.

[FR Doc. 97–27605 Filed 10–17–97; 8:45 am]

BILLING CODE 4410–10–M

FEDERAL RESERVE SYSTEM

12 CFR Part 261

[Docket No. R–0975]

Rules Regarding Availability of

Information

AGENCY: Board of Governors of the

Federal Reserve System.

ACTION: Final rule.

SUMMARY: The Board of Governors of the

Federal Reserve System (Board) hereby

amends its Rules Regarding Availability

of Information (Rules) to reflect recent

changes in the Freedom of Information

Act (FOIA) as a result of the Electronic

Freedom of Information Act

Amendments (EFOIA). In order to

account for future amendments to the

Rules, the sections have been

renumbered.

The review of the Board’s Rules that

produced this final rule was conducted

in accordance with section 303 of the

Riegle Community Development and

Regulatory Improvement Act of 1994. In

this regard, the amendments to the

Rules clarify certain provisions and

simplify the processing of requests for

access to information in certain

circumstances.

EFFECTIVE DATE: November 19, 1997.

FOR FURTHER INFORMATION CONTACT:

Elaine M. Boutilier, Senior Counsel,

(202/452–2418), Legal Division; or

Susanne K. Mitchell, Manager, Freedom

of Information Office (202/452–2407).

For the hearing impaired only, contact

Diane Jenkins, Telecommunications

Device for the Deaf (TDD)(202/452–

3544), Board of Governors of the Federal

Reserve System, 20th and Constitution,

N.W., Washington, D.C. 20551.

SUPPLEMENTARY INFORMATION: Last year,

Congress passed the Electronic Freedom

of Information Act Amendments of

1996, Public Law 104–231, which

amends the Freedom of Information Act,

5 U.S.C. 552. Among other things,

EFOIA requires agencies to promulgate

regulations that provide for expedited

processing of requests for records, and

permits agencies to promulgate

regulations that provide for multitrack

processing of requests. In addition to

amending its Rules to comply with

EFOIA, the Board has taken this

opportunity, in accordance with section

303 of the Riegle Community

Development and Regulatory

Improvement Act of 1994, to review and

streamline those Rules.1 In addition, the

Board is amending the Rules to take

account of various statutes that have

been enacted since the Rules were last

revised in 1988.2

To implement these changes, the

Board published proposed changes to

Subparts A, B, and D of its Rules on

June 10, 1997 (62 FR 31526). The Board

received four comments: one from a

Federal Reserve Bank, one from a

commercial bank, one from a credit

union, and one from a community

group. Three of the comments

supported the proposal; the community

group, however, opposed some of the

proposed changes. A discussion of the

specific comments is included in the

section-by-section analysis. In 1996, the

Board published for comment proposed

amendments to the Rules (61 FR 7436,

February 28, 1996) that primarily

concerned Subpart C of the Rules and

the definitions in Subpart A of terms

that are used in Subpart C. In addition,

the Board had proposed changes to

certain portions of Subpart B and

Subpart D, which were republished in

the June 1997 proposed rule. The

changes to Subparts A, B and D are

being adopted in this final rule; the

proposed amendments to Subpart C are

still under consideration.

Subpart A

Subpart A contains the General

Provisions, describing the authority,

purpose, and scope; listing the

definitions applicable to this part, and

explaining the responsibilities of the

Secretary of the Board as custodian of

the Board’s records. The changes to this

subpart are primarily in the ‘‘Authority’’

section to clarify the ability of the Board

to provide exempt records to certain

entities outside of the FOIA process in

specific circumstances. In addition,

certain definitions that were included in

the section on FOIA fees and fee

waivers have been moved forward to the

‘‘Definitions’’ section. One commenter

noted that the definition of ‘‘records’’

specifically excludes handwritten notes,

and questions the authority for this

exclusion. The intention was to exclude

personal notes that are not a part of

official Board records. This, however, is

accomplished by the exclusion of

personal files, so the reference to

handwritten notes has been deleted.

Section 261.3 is amended to clarify

that authority delegated to the General

Counsel and other officers of the Board

may be subdelegated. An additional

change to § 261.3(c) states that the

Secretary of the Board is the Board’s

agent for service of all process, and that