Immigration attorneys frequently find themselves presented with the same question – “But has the Trump administration really changed anything with respect to immigration law?” While it may feel as though the resounding answer is “yes,” in reality, President Trump’s administration has only strengthened the enforcement of the same immigration laws that were enacted years ago.
With published memorandums, the travel ban, law enforcement priorities, and public comments, President Trump and his administration have made it evident that they seek to shift the U.S. immigration system to that of a merit-based system and suppress family-based (“chain”) immigration, whereby U.S. citizens or permanent residents petition for certain family members to obtain permanent residency in the United States. An effective way for the administration to make family-based immigration increasingly difficult is by instilling fear in immigrant sponsors and cosponsors. In part with that hope in mind, the White House issued on May 23, 2019, the Presidential Memorandum entitled “Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens” (Memorandum).
That said, the sponsor requirement for certain permanent residency applicants is by no means a new component to the permanent residency process.
For decades, certain immigrants seeking green card issuance at a foreign U.S. embassy or before USCIS (legacy Immigration and Naturalization Service) must be “sponsored” by an individual in order to meet one of many requirements for permanent residency as listed under the Immigration and Nationality Act (INA). A sponsor, as outlined in INA §213A(f) (1), must: (A) be a U.S. citizen, national, or permanent resident; (B) be at least 18 years old; (C) be domiciled in the United States, or United States territory or possession; (D) petition for the immigrant’s permanent residency; and (E) provide evidence of the ability to maintain an annual income equal to at least 125 percent of the Federal poverty line.
In circumstances where the primary sponsor’s income does not meet the threshold amount according to the annual Federal poverty line standards, a cosponsor can be used to meet the requirements under INA §213A. Similarly, that cosponsor must also be a U.S. citizen or permanent resident and meet all the other criterion listed under INA §213A(f) (1).
For most immigrants applying for permanent residency, there is no exception to this rule; without a qualified financial sponsor, the immigrant is not eligible for permanent residency.
According to INA §213A, an immigrant must submit with their permanent residency application an Affidavit of Support, also known as an “I-864 Affidavit of Support Under Section 213A of the INA.” This ten-page form serves as a contract between the sponsor and the U.S. government; it is the sponsor’s agreement to provide financial resources to the intending immigrant in order for the immigrant to avoid seeking means-tested public benefits.
In the event that an immigrant obtains and utilizes public benefits when they are not eligible to do so, the INA mandates that the federal, state, or local entity that issued the public benefit request reimbursement from the sponsor. The INA further states that the issuing entity may bring legal action against the sponsor to recoup the reimbursement owed if the sponsor fails to comply with the request within a specific amount of time. Obviously, this is usually the sticking point when an immigrant is searching for a cosponsor when the initial sponsor’s income fails meet the financial requirements.
Many critics of the immigration system have argued for years that the recoupment provision in the INA has gone ignored by the agencies responsible for requesting reimbursement. President Trump’s plan, as demonstrated by the Memorandum, is to put this issue back on the table.
On its surface, the Memorandum instructs multiple federal agencies, including, among many others, the Department of Health and Human Services and Social Security, to either update or issue procedures, guidance, and regulations to confirm that ineligible immigrants do not receive public benefits that they are not entitled to receive. And if they do, take legal action against the sponsor.
Immigrants’ rights groups contend that immigrants are not unlawfully obtaining public benefits to the degree frequently alleged in the media. Undocumented immigrants are ineligible for all public benefits with the limited exception for emergency medical care. In the case of lawful immigrants who are eligible for benefits, statistics show that the group utilizes benefits available to a lesser degree than U.S.-born citizens.
For the Trump administration, the benefits for this Memorandum are multifaceted. Clearly, the Memorandum indicates the administration’s dedication to ensuring no unlawful instance of obtaining public benefits and the intent to have all relevant federal agencies refocus their efforts to ensure the same. But, perhaps to a greater impact, the Memorandum will ultimately decrease many immigrants’ abilities to find a cosponsor willing to agree to reimburse the government in the unlikely event that the immigrant unlawfully obtains public benefits, thus achieving the administration’s goal of diminishing family-based immigration. Kathleen Fish