By James A. Bach, Esq.*

Copyright 2007

Every legal immigrant to the U.S. must establish that he or she will not become a "public charge." That is, the immigrant must establish that he or she has the resources (income and/or assets) to avoid resorting to public assistance for support.

Although there is a waiver available for other grounds of excludability (even criminal grounds), there is no waiver for an immigrant who is excludable based on public charge grounds. A person who cannot prove an ability to avoid means-tested public benefits cannot immigrate, period.

An immigrant can establish that ability by submitting a bond, evidence of his or her own income or assets, or an Affidavit of Support signed by a "sponsor." The sponsor must be a U.S. citizen or permanent resident and must have sufficient income to support not only his or her own family but also the immigrant and the immigrant’s accompanying family.

The Affidavit of Support is executed on Form I-864. A full copy of that form and accompanying instructions can be found by clicking here. The I-864 is signed before a notary public, and when filed with the government it creates significant liabilities and obligations for the sponsor. Those liabilities and obligations are:

1. Payment of all expenses required to maintain the sponsored immigrant and family at an annual income that is at least 125% of the Federal poverty line.
2. Reimbursement to the government for any means-tested public benefit provided to the immigrant.
3. Payment to the government for the legal fees and other costs incurred to compel reimbursement.
4. Notification to the government of any change of address within 30 days of moving. There is a civil penalty of up to $2,000 for failing to provide such notification (and up to $5,000 if the sponsor has knowledge that the immigrant received public assistance).

Those obligations continue for the entire life of the immigrant, and may be cut off only upon the occurrence of one of the following:

1. The immigrant is gainfully employed and does not receive public assistance for ten years.
2. The immigrant becomes a U.S. citizen. An immigrant normally is eligible to become a U.S. citizen five years after immigrating (three years if married to a U.S. citizen).
3. The immigrant departs the U.S. and ceases to be a lawful permanent resident.
4. The immigrant dies.

The sponsor is not only subject to a lawsuit by the government to obtain reimbursement for welfare and other benefits, but is also subject to a lawsuit by the sponsored immigrant to obtain financial support at a level at least 125% of the Federal poverty line.

The Affidavit of Support may be enforced by the sponsored immigrant, and by any entity of the federal government, any state government, and any political subdivision of a state (such as a county). Those entities can seek reimbursement from the sponsor for any "means-tested public benefit", which can include not only welfare assistance, but possibly medical assistance as well (such as that provided under the Medi-Cal program).

The Affidavit of Support could also create civil and criminal liabilities for fraud, if there are any intentionally false statements in the Affidavit of Support.

Most applicants who apply for U.S. permanent residence ("green card") status need a sponsor who is willing to sign an Affidavit of Support on their behalf. Often the sponsor is a close family member, or a spouse (who may have some legal obligation for support in any event). Immigrants who have demonstrated responsibility and diligence by completing college, having a steady work history, or accruing significant assets may not pose much of a risk of later becoming a public charge. However, signing the Affidavit of Support should not be done lightly or without a full understanding of the significant liabilities incurred if the immigrant later becomes a pauper.