Paul, a U.S. citizen, filed a petition for immigrant visa on behalf of Manuel, his only brother in the Philippines. After waiting for more than twenty years for a visa to become available, Manuel finally received his “checklist” to start his visa processing.
Unfortunately, Paul is unemployed. He was terminated from his employment three years ago and never found a job again. With the visa of Manuel about to be processed, he knows that he needed to submit an Affidavit of Support as part of the visa application. Since Paul has no current income, he asked his cousin Rose to be a co-sponsor. Rose and his husband are hesitant to be “co-sponsors” because they have heard of serious legal consequences of signing an affidavit of support. Besides they are not sure if Manuel, who is now a senior citizen, will rely on welfare upon his arrival in the U.S. because of the current state of the economy.
Paul tried his best to find employment but there are no available jobs that are open to him. In fact, he himself is reliant on public welfare, the Supplemental Security Income (SSI) for his support. After waiting for two decades, Paul is excited to be reunited with his brother but he is facing financial difficulties. What will happen to the application for immigrant visa of Manuel?
Mandatory Requirement
Generally, a family based immigrant visa will not be issued if there is no affidavit of support executed by the petitioner or a co-sponsor from the United States. Except for two exceptions or waivers, the affidavit of support is a mandatory requirement.
The petitioner, through an affidavit of support, must demonstrate that the sponsoring relative can support the immigrant at an annual income that is not less than 125% of the federal poverty line. To determine what income will suffice for various public benefits the government releases federal poverty guideline annually. This guideline is also used to determine the required income that an individual should have to enable him to petition a relative for an immigrant visa. The poverty guidelines may be found on U.S. Citizenship and Immigration Service Form I-864P.
In the case of Paul, he lives with his wife and he is considered to have two family members. If he is to include the person being petitioned, he is considered to have three family members. The 2011 guidelines indicate that for a family of three (3), the poverty income guideline is $18,530 and 125% of the poverty guideline is $23,162. Since Paul has no income, he has to find a co-sponsor who has sufficient income and who is willing to co-sponsor.
Why Non-petitioners Refuse to be Co-Sponsors
When economic times were better, finding a co-sponsor was not as difficult. These days more prospective co-sponsors are hesitant to execute affidavits of support. Among the reasons that prevents them from filing one is that this affidavits are not simply documents that attest to support the new immigrant. They are considered contracts that between the sponsor and the federal government for the benefit of the sponsored immigrant. Since they are considered contracts, if the sponsored immigrant becomes a public charge or receives federal, state or local means tested aid or welfare; the government could sue the sponsoring family member and the co-sponsor for reimbursement.
There is also a provision in the law that makes affidavits of support enforceable through lawsuits filed by the sponsored immigrant. This may sound strange, but there are cases filed by the sponsored immigrant against their petitioners. An example of this is in marriage cases where the sponsored immigrant separates and files divorce against the petitioner or vice versa. If the petitioner spouse refuses to provide support to the sponsored spouse, a case of enforcement of contract may be filed against the sponsor. This lawsuit is based petitioner’s obligation, which remains in full force and effect based on the signed affidavit of support.
Lifelong Commitment
There are only five ways that a sponsor’s obligation of support may be terminated: (1) the sponsored immigrant becomes a naturalized citizen, (2) the sponsored immigrant works for forty Social Security quarters (or, in the case of a married immigrant, his or her spouse works for forty Social Security quarters while they are married), (3) the sponsored immigrant relinquishes permanent resident status and leaves the country, (4) the sponsored immigrant obtains new status in a removal proceeding, or (5) the sponsored immigrant dies. One would notice that all these five ways that will result in the termination of the obligation are circumstances beyond the control of the sponsor. What if the sponsored immigrant refuses to naturalize? What if the sponsored immigrant finds it difficult to find a job and remains unemployed? If none of these five ways of terminating obligation do not arise, the sponsor may face a lifelong commitment to the sponsored immigrant.
Sponsoring an immigrant to the come to the United States and supporting their application for visas with an Affidavit of support may appear to be a natural and routine part of the visa process. However, with the economic crisis and rising unemployment rates, there are a number of sponsors and potential co-sponsors who are skeptical about signing affidavits of support.
Despite the realization of the legal consequences of a signed affidavit including the possibility of a lifelong commitment, we still encounter majority of Filipino families who exhibit strong determination to reunite with their relatives. Many are still pulling resources to put together Affidavits of Support for a successful immigrant visa processing. Indeed, family unity among Filipino immigrants remains a top priority and it is the family that enables them to sustain the many challenges of the times.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
