Agency Review and Adjudication of the Affidavit of Support
This article covers the review and adjudication of the affidavit of support by United States Citizenship and Immigration Services and the State Department. Each agency applies a slightly different procedure, as seen in an “assessment letter” currently used by the National Visa Center and the Request for Initial Evidence used by USCIS. Bear in mind that each agency’s analysis and interpretation of the requirements, as well as its communication with the sponsor, is subject to frequent change.
Review by the NVC
Immigrant visa applicants must submit an affidavit of support, Form I-864, I-864EZ or I-864W, to the NVC as part of the application and document review process. The NVC conducts a “technical review” to see if the form and supporting documents are complete. The NVC is not adjudicating or approving the adequacy of the submission or giving any assurance that the applicant has satisfied the affidavit of support requirements. Rather, the NVC plays an advisory role in helping both the applicant and the consulate prepare for the interview. All decisions regarding admissibility – in this case whether the applicant has satisfied the public charge standard – are made by the consulate.
Until recently, the NVC sent sponsors a “checklist” when the agency discovered any deficiencies on the form or in the documentation. This occurred when the agency believed the affidavit of support had one or more sections with missing or incorrect information and/or was lacking required supporting documents. The sponsor was instructed to correct the affidavit of support and/or collect the missing documents and return the form and documents to the NVC. The immigrant visa case was placed on hold until the NVC received these items. A complete and sufficient affidavit of support was a necessary element of being “documentarily qualified,” which then allowed the NVC to schedule the consular interview and forward the file to the consulate.
Starting Jan. 1, 2017, the NVC no longer sends a checklist when it discovers apparent inconsistencies or errors on the affidavit of support submission. Instead, the agency will send an “assessment letter” that will “identify issues that could delay the adjudication of a visa application” and will “encourage the applicant to correct these issues before the interview.” Issuance of an assessment letter will not require submission of a new Form I-864 and/or financial evidence to NVC. Instead, the applicant is advised to bring a corrected form and any suggested documents to the consular interview. The State Department believes this change will “simplify the submission of financial evidence in support of a visa application, and decrease the rate of visas refused only because the required documents were not available at the time of the visa interview.”
The NVC will ask sponsors to resubmit an amended Form I-864 to the NVC only if the sponsor’s name and personal information are missing, there is no signature or if there are missing pages. If the sponsor received a checklist prior to Jan. 1, 2017 that requested the resubmission of a corrected Form I-864 or additional documentation, the sponsor must follow the instructions on that letter.
The State Department has also indicated that it will accept photocopies and scanned versions of Form I-864 and associated documents. The I-864 must still be signed, typed names and electronic signatures will not be accepted. Original or “wet ink” signatures, however, are no longer required on Forms I-864, I-864A, I-864W or I-864EZ.
Adjudication by the Consulate
The consular officer is required to review the affidavit of support for clerical completeness. This task is often performed by foreign service nationals working at the consulate. The consular officer during the formal interview makes the decision on admissibility and whether the affidavit of support is adequate. He or she can request additional documentary evidence or an affidavit of support from a joint sponsor. The applicant has one year to submit the requested documents or face possible termination of the application under INA § 203(g). The State Department reserves the right to request the sponsor’s appearance at the consular interview as part of adjudication of the immigrant visa application. In practice, however, this is quite rare.
If more than one year has passed between the filing of the affidavit of support with the NVC and the consular interview, the officer can request updated or additional documentation, including the sponsor’s current income and employment or tax returns for the most recent tax year. The sufficiency of the affidavit of support shall be determined based on the sponsor’s “reasonably expected household income in the year the Department of State officer…makes the request for additional evidence, and based on the evidence submitted in response to the request for additional evidence and on the Poverty Guidelines in effect when the request for evidence was issued.” In cases where the consular officer believes that major changes have occurred since the filing of the affidavit of support that affect its sufficiency, he or she may require the submission of a new one.
The State Department may pursue verification of the information on the affidavit of support or supporting documents by contacting the employer, the bank, the Internal Revenue Service, the Social Security Administration, or other institutions. By signing the I-864, the sponsor specifically authorizes the Social Security Administration to release information in its records and also “authorizes the release of any information from any and all of my records that USCIS or the Department of State to determine” necessary. If the agency discovers that the sponsor has concealed or misrepresented material information regarding income, assets, or household size, it should find the affidavit of support insufficient and the applicant inadmissible for public charge.
The regulations include a provision that gives consular officials the power to determine that a sponsor has not satisfied the financial requirements, even if he or she appears to pass the income or assets tests. Consular officials may still reject an affidavit of support whose projected income meets the financial requirements, but only if, based on specific facts, it is “reasonable to infer that the sponsor will not be able to maintain his or her household income” at the necessary level. In addition, even when the affidavit of support is found to be sufficient, the intending immigrant may be found inadmissible under INA §212(a)(4) as likely to become a public charge if “specific facts support such a reasonable inference.”
Review by the NBC
Applicants for adjustment of status file the Form I-485 and supporting documentation by mail with the USCIS National Benefits Center in Missouri via a lockbox in Chicago. A Form I-130, Alien Relative Petition, may be filed at the same time as the Form I-485 for a person who will be eligible to adjust as soon as the visa petition is approved, such as an immediate relative. Other applicants will have to file their I-485 petition with the I-130 approval notice once the priority date is current, or a visa is available.
The State Department’s monthly Visa Bulletin includes Chart A, Final Action Dates for Family-Sponsored Preference Cases, which indicates whether a visa is available in a certain preference category. Chart B, Application Dates for Filing Family-Sponsored Visa Applications, lists a different set of dates that indicate when a person may file an application for adjustment of status with the USCIS. Chart B is not necessarily available for adjustment of status filings every month USCIS will indicate each month whether adjustment applicants can rely on these dates for filing applications.
The adjustment applicant must include an affidavit of support or an I-864W as part of the application packet. The NBC reviews the submission for completeness and eligibility to file for adjustment of status. If it finds any deficiencies, it contacts the applicant and requests further explanation or documentation. Once the NBC has vetted the application and is satisfied that the submission is complete, it forwards it to the appropriate USCIS district office for an interview, assuming an interview is required.
The instructions to the I-864 and I-864A inform the sponsor or household member that the USCIS may request additional information or originals of any copies that were submitted. The agency also states that it will return any requested originals when they are no longer needed.
Although the State Department has indicated that it will accept photocopies and scanned versions of signed affidavits of support and that “wet ink” signatures are no longer required, the USCIS still requires an original signature.
The NBC performs an initial sufficiency review that is similar to that performed by the NVC in that neither is adjudicatory. The NBC will send the sponsor a Request for Initial Evidence when it believes the affidavit of support to be filled out improperly or lacking sufficient documentation. If the NBC believes the documentary proof does not indicate that the sponsor has satisfied the income requirement, it will request evidence of assets or the submission of an affidavit of support from a joint sponsor. In contrast to the NVC’s assessment letter, however, failure to respond to the NBC’s request for evidence within 87 days will result in denial of the application.
Adjudication by the District Office
After receiving the adjustment application from the NBC, the local district office will schedule an appointment. During the interview, the officer will examine the affidavit of support and documentation and make a decision as to whether the sponsor has satisfied the financial requirements.
The affidavit of support must be sufficient both at the time it is submitted and at the time of the interview. The presumption is that if the affidavit passed the NBC vetting process and was found to be sufficient at that time, then it is still sufficient at the time of adjudication. If the sponsor’s current individual annual income and last year’s tax return indicate an income above the Poverty Guidelines, than the “USCIS will generally infer that the sponsor’s income has remained and will remain sufficient at the time of adjudication.”
On the other hand, if the USCIS officer finds that the evidence shows an income of less than the required amount, the officer can issue a request for more documentary proof or for the submission of an affidavit of support from a joint sponsor. And if more than one year has passed between the filing of the affidavit of support with the NBC and the interview, the officer can request updated or additional documentation, including the sponsor’s current income, employment or tax returns for the most recent tax year. The adjustment applicant shall be given at least 30 days to submit the additional evidence. As with the State Department, the sufficiency of the affidavit of support shall be determined based on the sponsor’s income and the Poverty Guidelines in effect in the year the officer makes the request.
USCIS is authorized to pursue the verification in the same manner as the State Department, and if it determines that the sponsor has made a material misrepresentation, it may make a finding of public charge and deny the adjustment application.
USCIS reserves the right to request the sponsor’s appearance at the district office as part of adjudication of the adjustment application. The agency further states that “at the time of any interview or other appearance at a USCIS office, we may require that you provide your fingerprints, photograph, and/or signature to verify your identity and/or update background and security checks.” In practice, however, the USCIS rarely requests the appearance of the sponsor.
The regulations allow USCIS, just as they do the State Department, the power to determine that a sponsor has not satisfied the financial requirements, even if he or she appears to pass the income or assets tests, but only if, based on specific facts, it is “reasonable to infer that the sponsor will not be able to maintain his or her household income” at the necessary level.