TANF-ACF-PI-2003-03 (Deeming Of Sponsor's Income and Resources To A Non-Citizen)

Publication Date: April 17, 2003
Current as of:

To:

State agencies administering the Temporary Assistance for Needy Families (TANF) program and other interested parties.

Subject:

Deeming Of Sponsor's Income and Resources To A Non-Citizen

References:

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), as amended, title IV, sections 421, 422, 423 (8 USC 1631, 1632, and 1183a respectively); title IV-A, section 408(f) of the Social Security Act (42 USC 608(f)); and section 213A of the Immigration and Nationality Act (INA, or the Act) (also found at 8 USC 1183a).

On October 20, 1997, the Department of Justice (DoJ) published an interim rule with request for comments on ’Affidavits of Support on Behalf of Immigrants’, per section 213A of the Act, in 62 Federal Register (FR) 54346 (Document Number FR 63-97).  The implementing regulations for section 213A of the INA are found at 8 CFR Part 213a. DoJ anticipates that final regulations will be published this year.

Purpose:

This Program Instruction (PI) explains the requirement (with exceptions) in title IV, section 421 of PRWORA, as amended, to attribute a sponsor's income and resources to certain non-citizens in determining the eligibility for and amount of a Federal means-tested public benefit.  This PI also addresses the distinctions between the deeming provisions under title IV-A, section 408(f) of the Social Security Act and the deeming requirement in title IV, section 421 of PRWORA, as amended.  Finally, this PI addresses the authority given to States under PRWORA title IV, section 422 to provide for the attribution of a sponsor's income and resources to the non-citizen in determining the eligibility and amount of a State public benefit.

Background:

Under the former AFDC program, unless the sponsor was exempt from the deeming provision, the income and resources of a sponsor and the sponsor's spouse (if living with the sponsor) minus appropriate disregards were considered available in determining the eligibility and amount of the assistance unit's AFDC assistance payment.  This deeming provision applied for three years following the sponsored non-citizen's admission for lawful permanent residency into the United States.  A sponsor is anyone who executed an affidavit(s) of support on behalf of an immigrant as a condition of the immigrant's entry into the United States.  However, some courts held that these affidavits of support for sponsored immigrants were not legally binding contracts between the sponsor and the U.S. government.

Title IV of PRWORA 1996 as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Balanced Budget Act (BBA) of 1997 created a new affidavit of support requirement for sponsors of certain legal immigrants and new rules for deeming income and resources from the immigrant's sponsor to the sponsored immigrant.  In particular, section 423 of PRWORA, as amended, added section 213A to the INA, which directed the Attorney General to develop a new, legally enforceable, affidavit of support that must be executed by certain sponsors.  (Section 213A of the INA is codified at 8 USC 1183a;

implementing regulations can be found at 8 C.F.R. Part 213a.)  The affidavit developed pursuant to this statutory directive is Form I-864, entitled Affidavit of Support Under Section 213A of the Act, hereinafter referred to as the I-864 Affidavit.  The I-864 Affidavit became effective on December 19, 1997.

Section 213A(f)(1) of the Act sets forth the requirements to be a sponsor.  The individual executing the I-864 Affidavit 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 a gross annual household income of at least 125 percent of the Federal poverty line (FPL) (100 percent of FPL, if the sponsor is on active duty in the Armed Forces of the US and is sponsoring a spouse or child) for the sponsor's household size.  For purposes of the I-864 Affidavit, 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 not 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.  The I-864 Affidavit is required for most family-based immigrants, and some employment-based immigrants.  All immigrants who have an I-864 Affidavit are lawful permanent residents (LPR) (see response 2 for further discussion).

The sponsor also accepts the obligation to reimburse, upon request, appropriate government agencies and nongovernmental entities that provide Federal or State means-tested public benefits to the sponsored alien.  Thus, the I-864 Affidavit creates a contract between the sponsor and the US Government which can be legally enforced against the sponsor by the sponsored immigrant, the appropriate Federal, State, or local governmental agency, or appropriate nongovernmental entity which provides certain means-tested public benefits to the sponsored immigrant.

If an immigrant who is sponsored pursuant to an I-864 Affidavit applies for a Federal means-tested public benefit, then the agency must deem the sponsor's income and resources as well as the income and resources of the sponsor's current spouse.  This means that the income and resources are considered to be available to the sponsored immigrant in determining the eligibility for, and payment amount of, a Federal means-tested public benefit. Section 421 of PRWORA is codified at 8 USC 1631

In TANF Information Memorandum 97-4 dated August 28, 1997, we announced the publication of a "Notice" in the Federal Register on August 26, 1997 in which HHS interpreted Federal means-tested public benefits to include the TANF Block Grant program and the Medicaid program.  Other Federal means-tested benefits include the Supplemental Security Income program, the State Children's Health Insurance Program (SCHIP), and the Food Stamp program. (See 62 FR 45256)

There are two notable exceptions to the above-described deeming requirement.  The TANF agency would not apply the deeming requirement for a 12-month period if the sponsored immigrant or certain family members has been determined a victim of domestic violence or extreme cruelty.  Furthermore, if the sponsored immigrant would be unable to obtain food and shelter without government assistance, then only the amount of income and resources actually provided by the sponsor or the sponsor's spouse would be deemed to the immigrant.  (These two exceptions have been discussed in greater detail in responses 4 and 5 ahead.)

The above-described deeming rules only apply to sponsored immigrants who have executed the new, legally binding, I-864 Affidavit.  The deeming period continues until the sponsored immigrant becomes a US citizen, has earned, or can be credited with, 40 qualifying quarters of coverage as defined in title II of the Social Security Act (42 USC 401 et seq.), departs the United States permanently, or dies.

However, most sponsored immigrants affected by the new deeming provision have been barred from receiving TANF benefits due to other provisions in PRWORA title IV, section 403, as amended.  If a State elects to consider qualified aliens eligible for the TANF program, it may not provide a Federally funded means-tested TANF benefit to a non-citizen physically entering the country on or after 8/22/96 for their first five years as a qualified alien.  See section 403, as amended (8 USC 1613).  The list of qualified aliens is given in PRWORA, as amended, title IV, section 431 (8 USC 1641).  An immigrant who has been lawfully admitted for permanent residency under the INA is included in the list of qualified aliens.  The following qualified aliens are excepted from this five-year bar: refugees, asylees, aliens whose deportation or removal is being withheld, Amerasians, Cuban/Haitian entrants, as well as veterans, members of the military on active duty, and their spouses and unmarried dependent children, and victims of a severe form of trafficking. Many of these excepted immigrants are not required to file an I-864 Affidavit.

States now need to address the issue of sponsor deeming.  Immigrants whose sponsors signed an I-864 Affidavit on or after 12/19/97 and who apply for TANF benefits, will be subject to deeming upon the expiration of the five-year bar.  It should be noted that veterans, active duty servicemen, or their families whose sponsors signed an I-864 Affidavit on or after December 19, 1997, and who became a lawful permanent resident, are among the non-citizens who are excepted from the five-year bar on the receipt of a Federal means-tested public benefit, but are not excepted from the deeming rules.  We believe this is a very small group of people who, if they have applied to receive a Federal means-tested public benefit, have been subject to the deeming provision in section 421 immediately.

Questions and Answers:

We have decided to clarify the deeming policy through a series of questions and responses.  The deeming policy will begin to have wide impact after December 19, 2002, since this date marks the expiration of the five-year bar from receiving Federal means-tested TANF benefits for certain legal immigrants whose sponsors executed an I-864 Affidavit.  The number of persons subject to deeming will be small at first and grow substantially to reflect the implementation of the I-864 Affidavit.

Q1. What is sponsor deeming? Who is affected by the immigrant sponsor deeming rules under PRWORA title IV, section 421, as amended (8 USC 1631)?

R1. Sponsor deeming is a procedure used in determining the eligibility for and the amount of a Federal means-tested public benefit that a family may receive.  If a LPR has a sponsor who executed the I-864 Affidavit and the LPR applies for a Federal means-tested public benefit, then the State must consider, or "deem," the income and resources of the sponsor and the sponsor's spouse available to the sponsored LPR when determining eligibility for and the amount of the Federal means-tested public benefit.

The deeming requirement under section 421 applies only to LPRs whose sponsors executed the I-864 Affidavit.  The I-864 Affidavit became effective on December 19, 1997.  Accordingly, the deeming requirement in section 421 also became effective on December 19, 1997, and applies to certain LPRs who applied for an immigrant visa or for adjustment of status on or after December 19, 1997.  Several non-citizen groups are exempt from deeming, as discussed below in responses 3 and 4.

However, the deeming rules did not have widespread impact until December 19, 2002.  This is because most immigrants who entered the country following enactment of PRWORA, are barred from receiving Federal means-tested public benefits for their first 5 years as qualified aliens.  So, States have not had to apply the deeming requirement in determining eligibility and receipt of a Federal means-tested public benefit - with one exception.  Veterans, active duty servicemen, or their families who arrived in the US on or after December 19, 1997, and who became a lawful permanent resident sponsored under section 213A of the INA on or after December 19, 1997, are excepted from the five-year bar on the receipt of a Federal means-tested public benefit. For these LPRs, the deeming rules became effective with the implementation of the I-864 Affidavit - i.e., on December 19, 1997.

Q2.  Which non-citizens must have a sponsor who signs the INS Form I-864 Affidavit of Support?

R2.  Most family-based immigrants, including immediate relatives, family preference immigrants, and some orphans, must submit an affidavit of support on INS Form I-864 if they file adjustment of status or immigrant visa applications on or after December 19, 1997.  In addition, an employment-based immigrant who is coming to work for a relative or for a company where a relative of the immigrant owns 5 percent or more of the company must file an I-864 Affidavit.  These are immigrants who have lawful permanent residency status.  Immigration through a family member or through employment are two paths to lawful permanent residency.  The I-864 Affidavit becomes enforceable at the time that the immigrant actually becomes a LPR (e.g., through admission to the US at a port of entry or through adjustment of status at an INS office).

However, immigrants in the above categories who have earned, or can be credited with, 40 qualifying quarters of coverage, as defined in title II of the Social Security Act, are not required to submit an I-864 Affidavit.  The INS affirmed this exemption in a policy statement dated May 17, 2001.

In addition to this group, any child who can become a citizen immediately upon entry to the US under the Child Citizenship Act of 2000 is not required to submit an I-864 Affidavit.  For this exemption to apply, all of the following must be true after February 27, 2001: at least one parent of the child is a US citizen; the child is under 18 years of age, and if adopted, the adoption was legally finalized prior to admission to the US Orphans whose adoptions are not legally finalized until after admission to the US do not qualify for this exemption.  INS discussed this in a policy statement dated May 17, 2001.

As discussed in response 3, not all immigrants who entered the country or applied for LPR status on or after December 19, 1997, are required to submit an I-864 Affidavit.  Immigrants described in the preceding paragraphs whose sponsor did not sign an I-864 Affidavit are not subject to the deeming rule under PRWORA as amended, section 421.

Q3.  Are any non-citizens not covered by the alien sponsor deeming rules in section 421 of PRWORA, as amended?

R3.  Yes.  Only LPRs whose sponsors signed an I-864 Affidavit may be subject to deeming.

Some non-citizens, including non-citizen US nationals, do not have a sponsor.  There are also some non-citizens whose sponsor did not sign an I-864 Affidavit, but did sign another affidavit form. In these situations, the alien sponsor deeming rules in section 421 of PRWORA, as amended, do not apply.  Examples of individuals who are NOT subject to the alien sponsor deeming rules include the following.

  1. LPRs who applied for an immigrant visa at a consular office or adjustment of status to LPR before December 19, 1997;
  2. LPRs who adjusted from refugee or asylee status (refugees and asylees are not subject to the deeming provisions);
  3. Qualified aliens who are sponsored by an organization or who are not LPRs and who are not required to have a sponsor (e.g., refugees, asylees, parolees, and Cuban and Haitian entrants);
  4. Victims of severe forms of trafficking, who are not required to have a sponsor, and are required to be treated like refugees for purposes of eligibility for Federally funded or Federally administered public benefit programs (For additional information on the eligibility of trafficking victims for benefits, see the Dear Colleague Letter, dated July 16, 2001 and State letter 01-13 dated May 3, 2001, which was amended by State letter 02-01 dated January 4, 2002.  
  5. LPRs entering in employment or other nonfamily categories, such as the diversity category, where a sponsor did not have to sign Form I-864;
  6. LPRs who are exempt from the deeming requirement for reasons discussed in response 4;
  7. Non-citizens who earned, or can be credited with, 40 qualifying quarters of coverage as defined under title II of the Social Security Act;
  8. Non-citizens, including US nationals, who do not have sponsors; and,
  9. Non-citizens whose sponsors signed affidavit(s) of support other than the I-864 Affidavit of Support. Also refer to response 18.

Q4.  Are any LPRs whose sponsors executed the I-864 Affidavit of Support, exempt from the deeming requirement under section 421 of PRWORA?

R4.  Yes.  There are two exemptions for LPRs who would otherwise be subject to the deeming requirement under section 421.

  1. Immigrants who are victims of domestic violence or extreme cruelty as well as certain family members, and
  2. Indigent immigrants.

These exceptions are codified at 8 USC 1631(e) and (f).   In both situations, the agency must grant an exemption for a 12-month period beginning on the date the determination is made. Refer to response 5.

Victims of domestic violence or extreme cruelty:

The immigrant who is a victim of domestic violence or extreme cruelty must demonstrate that s/he has been battered or subject to extreme cruelty by a spouse or a parent, or by a member of the spouse or parent's family residing in the same household as the alien and the spouse or parent consented or acquiesced to such cruelty.  The exemption also applies to certain immigrant parents of a battered child or a child who has been subject to extreme cruelty; and to certain immigrant children of a battered parent or a parent who has been subject to extreme cruelty.

Sometimes a victim of domestic violence or extreme cruelty may not be able to provide information on their sponsor without endangering themselves or their children. For example, the sponsor may also be the abuser.  Therefore, we recommend that the TANF agency use any credible evidence of abuse that is available.  This would include, but is not limited to, reports or affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, counseling or mental health personnel, and other social service agency personnel, protection orders, evidence that the applicant sought help from a battered women's shelter, photographs of injuries, affidavits from family members or others who have personal knowledge of the battery or extreme cruelty, and the applicant's own credible affidavit.  However, the deeming exemption may not apply to the immigrant's benefits "during any period in which the individual responsible for such battery or cruelty resides in the same household or family eligibility unit as the individual who was subjected to such battery or cruelty."  (8 USC 1631(f)(2))

NOTE:  This exemption for LPRs who have sponsors and have been subjected to domestic abuse should not be confused with the provision at 8 USC 1641(c), which states that certain battered aliens are qualified aliens.  This is because battered aliens who are qualified under 8 USC 1641(c) are exempt from deeming rules; in most cases, they have no sponsor.  In the small number of cases where battered aliens under 8 USC 1641(c) do have sponsors, the TANF agency will have already determined that they meet the criteria under 8 USC 1641(c). Because the criteria of 8 USC 1641(c) are more extensive than the requirements of 8 USC 1631(f), they may be excluded from the deeming requirements in Section 421 without further inquiry.

Indigent Immigrants:

The indigent immigrant exemption is codified at 8 USC 1631(e). An indigent immigrant is an LPR whose sponsor executed an I-864 Affidavit, but the sponsored immigrant "would, in the absence of the assistance provided by the agency, be unable to obtain food and shelter, taking into account the alien's own income plus any cash, food, housing, or other assistance provided by other individuals, including the sponsor."  If such a determination is made, then only the income and resources that the sponsor and his or her spouse actually provide, if any, to the immigrant should be considered.

Q5.  Who makes the determinations that the persons mentioned in response 4 may be exempted from the deeming requirement under section 421 of PRWORA, as amended?

R5.  The TANF agency makes the determination.

For LPRs who are victims of domestic violence or extreme cruelty as well as certain family members, the exemption can be extended beyond 12 months if the abuse or cruelty is recognized by a court order, an Administrative Law Judge or the INS, and the victim does not live with the batterer.

In determining whether the sponsored LPR is indigent, States would use their own standards and methods for deciding whether the sponsored alien "would, in the absence of the assistance provided by the agency, be unable to obtain food and shelter, taking into account the alien's own income plus any cash, food, housing, or other assistance provided by other individuals, including the sponsor."  For example, Food Stamp program regulations at 7 C.F.R 273.4(c)(3)(iv) define the phrase "is unable to obtain food and shelter" to mean that the immigrant's own family income, plus any cash or in-kind assistance actually provided by the sponsor and others, does not exceed 130 percent of the Federal poverty level for the size of the immigrant's household. Subsection (iv) also states that "each indigence determination is renewable for additional 12-month periods."  The TANF agency may elect to adopt part or all of the policy used by the Food Stamp program or establish its own policy for determining whether the sponsored alien would, in the absence of the assistance provided by the agency be "unable to obtain food and shelter."

If the TANF agency determines that the sponsored LPR is indigent, then only the amount actually provided, if any, by the sponsor to the LPR should be considered for the 12-month period beginning on the date such determination is made.  Further, if a State TANF agency chooses to renew its determination for additional 12-month periods, we would consider that such policy represents a reasonable interpretation of section 421(e) of PRWORA as amended.   In accordance with section 421(e)(2), the agency must notify the US Attorney General of each such determination, and provide the names of the sponsor and the sponsored LPR(s) involved. This report is sent to the INS Statistics Branch, Room 4034, 425 I St., NW, Washington, DC 20536. See 8 CFR 213a.4(c)(2).

Q6.  What Federal benefits are subject to the deeming requirement at section 421 of PRWORA, as amended (8 USC 1631)?

R6.  The deeming requirements apply to most Federal means-tested public benefits. This includes any federally funded TANF means-tested benefit.  But, as explained in response 7, certain TANF benefits may not meet the definition of a Federal means-tested public benefit, and therefore, would not be subject to deeming.

Furthermore, any benefit that is excepted from the Federal means-tested public benefit requirements pursuant to section 403(c) of PRWORA, as amended (8 USC 1613(c)), is not subject to deeming.  For example, Federal or State-funded short-term, non-cash emergency relief and noncash programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified in Attorney General Final Order 2353-2001 are not considered means-tested public benefits.  A non-TANF example of an exempted benefit includes emergency medical assistance.

Q7.  Is federally-funded TANF "assistance," as defined in 45 CFR 260.31(a), considered a Federal means-tested public benefit?

R7.  Yes, federally-funded TANF "assistance," as defined in 45 CFR 260.31(a), constitutes a Federal means-tested public benefit.  States may only provide "assistance" to a family that is financially needy according to the State's established income and resource (if applicable) standards.  State TANF programs that use segregated Federal TANF funds or commingled Federal TANF and State maintenance-of-effort (MOE) funds to provide TANF "assistance" are providing a benefit that meets the definition of a Federal means-tested public benefit.  However, the deeming provision in section 421 applies to a Federal or commingled TANF means-tested benefit whether that benefit is considered "assistance" or is a means-tested benefit or service that would not be considered "assistance."

Nonetheless, we have expressly recognized that not all benefits or services provided by the TANF program are "Federal public benefits," to which immigrant restrictions apply.  When a service is not a Federal public benefit, it is also not considered a Federal means-tested public benefit, and the deeming provisions in section 421 of PRWORA as amended, do not apply.  The August 4, 1998, Federal Register notice at 63 FR 41658 includes some discussion about discerning whether a program or service should or should not be considered a Federal public benefit.  For example, deeming may not apply to TANF funds used for pregnancy prevention services that are available to individuals regardless of financial need.

Q8. Is there a time limit on the application of the deeming rules under section 421 of PRWORA, as amended?

R8. There is no absolute time limit on the application of the deeming rules to affected immigrants. However, the deeming rules cease to apply in the following circumstances:

  1. The immigrant's sponsor dies;
  2. The sponsored immigrant becomes a US citizen;
  3. The sponsored immigrant has earned 40 qualifying quarters of coverage, as defined under title II of the Social Security Act (42 USC 401 et seq.); or can be credited with such qualifying quarters as provided under 8 USC 1645.  Basically, section 1645 enables the agency to credit a sponsored immigrant who has not attained age 18 with all of the qualifying quarters of coverage worked by the parent.  It also allows the agency to credit a sponsored immigrant with all of the qualifying quarters of coverage worked by a spouse during the marriage, as long as the sponsored immigrant is still married to the person who worked the qualifying quarters, or that person is deceased.

However, a sponsored immigrant may not receive credit for any quarter beginning after December 31, 1996, if during that quarter, the immigrant received a Federal means-tested public benefit.  (See instructions on verifying quarters of coverage in Exhibit A to Attachment 6 in the ’Notice of Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996’, 62 FR 61344, dated November 17, 1997.)

Q9.  How can the TANF agency determine and verify whether or not a non-citizen has a sponsor who executed an I-864 Affidavit, and is therefore subject to the deeming requirement in section 421 of PRWORA?

R9.  States can verify whether or not an immigrant applicant has a sponsor who signed the I-864 Affidavit, and is therefore subject to the deeming requirement in section 421 by filing Document Request Forms G-845 and G-845 Supplement with the INS.  Both forms must be filed.  Following receipt of the requisite forms, the INS will notify the agency if the immigrant was sponsored under the I-864 Affidavit and, if so, the name and social security number of the sponsor (and joint sponsor, if any).  States which verify immigration status using the INS' Systematic Alien Verification for Entitlements (SAVE) system, as well as those operating under an approved waiver, would also use Forms G-845 and G-845 Supplement to verify alien sponsorship information.  States may provide a Federal means-tested TANF benefit to an otherwise eligible sponsored immigrant pending verification of his/her sponsorship.

Q10.  Are there situations in which the TANF agency would not have to verify whether or not a non-citizen has a sponsor who executed an I-864 Affidavit, and is therefore subject to the deeming requirement in section 421 of PRWORA?

R10.  Yes. It is not necessary to verify alien sponsorship in the following circumstances:

  1. The TANF agency determines that the non-citizen is NOT an LPR or that the non-citizen became an LPR prior to December 19, 1997.
  2. The LPR was not admitted in a family-based or employment-based category regardless of his/her date of entry (see response 2).
  3. The agency determines that the immigrant has earned, or can be credited with, 40 qualifying quarters of coverage (see response 8c).
  4. The immigrant is not applying for a Federal means-tested TANF benefit.
  5. The immigrant is ineligible for a Federal means-tested TANF benefit based on his or her own income and resources, or is ineligible for some reason unrelated to income and resources.

Q11.  Whose income and resources must the TANF agency consider?

R11.  Title IV, section 421(a) of PRWORA as amended, (8 USC 1631(a)) provides that:

"Notwithstanding any other provision of law, in determining the eligibility and the amount of benefits of an alien for any Federal means-tested public benefits program (as provided under section 1613 of this title), the income and resources of the alien shall be deemed to include the following:

The income and resources of any person who executed an affidavit of support pursuant to section 213A of the Immigration and Nationality Act (8 U.S.C. 1183a) (as added by section 423 and as amended by section 551(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) on behalf of such alien.

The income and resources of the spouse (if any) of the person." (underlining added)

Q12.  What happens if an immigrant has more than one sponsor?

R12.  In some cases, an immigrant may have two sponsors, both of whom executed an I-864 Affidavit.  Each secondary sponsor is referred to as a joint sponsor.  In these situations, the income and resources of both the primary and joint sponsor(s), as well as their respective spouses, must be deemed to the sponsored LPR.

Q13.  How much of the sponsor's income and resources must the TANF agency consider in determining eligibility for and the amount of a federally-funded TANF means-tested public benefit?

R13.  The above-quoted statutory provision requires States to deem the income and resources of the sponsor and the sponsor's spouse to the sponsored LPR.  However, it does not stipulate any specific methodology for States to use in defining the income or resources to consider, and any applicable disregards.  And, section 402(a)(1)(B)(iii) of the Social Security Act (Act) allows a State to establish objective criteria for the determination of eligibility and the delivery of benefits.  Therefore, we leave it to each State to formulate its own methodology for determining the level of income and resources of the sponsor and the sponsor's spouse (if applicable) that must be deemed to the sponsored LPR.  For example, in implementing the deeming requirement under section 421, a State could opt to use the income and resource disregards enumerated in title IV-A, section 408(f)(1) of the Social Security Act.

Each State may also formulate its own sponsor deeming policy in the event that a sponsor signed an I-864 Affidavit for more than one immigrant.  For example, a State could opt to adopt the policy provided in the Food and Nutrition Service regulations at 7 CFR 273.4(c)(2)(v), in which the sponsor's income and resources are pro-rated among the sponsored immigrants for deeming purposes.In addition, in the case of sponsors whose income and resources would otherwise be deemed to the immigrant in accordance with the State's regular deeming rules (e.g., for parents or spouses), States may opt to apply those regular deeming rules for such sponsors.

Q14.  Does the agency have to deem the income and resources of the sponsor and the sponsor's spouse (if applicable) to other members of the sponsored LPR's family?

R14.  States must deem the sponsor's income and resources to any member of the immigrant's family who is named on the I-864 Affidavit.  The sponsor's income and resources can be deemed only to immigrants they sponsor.  However, States define which individuals comprise the TANF family/assistance unit.  When the sponsored immigrant(s) is a member of the TANF family unit, the State would use the sponsor's deemed income and resources in accordance with the State's policy for determining the family's eligibility for and payment amount of the federally-funded TANF means-tested public benefit.  But, if the sponsored immigrant has neither applied for nor is a recipient of a Federal means-tested public benefit, then the State does not have to deem the income and resources of the immigrant's sponsor and the sponsor's spouse (if applicable) in determining the assistance unit's eligibility for and the amount of the benefit.

Q15.  How can States verify a sponsor's income and resources?

R15.  States should use their own methods and procedures to verify the sponsor and the sponsor's spouse's (if applicable) current income and resources.  The I-864 Affidavit relates to the sponsor's financial situation before the sponsored immigrant becomes a LPR.  This period may be several years before the application for a Federal means-tested public benefit. Because the original I-864 Affidavit does not provide current income or resource information, INS does not provide copies of the form or information to agencies regarding a sponsor's income or the value of any assets used by the sponsor to meet the sponsor's income requirements.

Q16.  Does the sponsor incur any liability for the cost of any Federal means-tested TANF public benefit provided to the sponsored LPR.R16.  In signing the I-864 Affidavit, the sponsor agrees to assume liability for the unreimbursed cost of a means-tested public benefit(s) provided to the sponsored LPR (exceptions are discussed below).  After the State applies the sponsor-to-immigrant deeming criteria, and if the individual receives a Federal means-tested TANF public benefit, the TANF agency may sue the sponsor through an appropriate civil action to recover unreimbursed TANF benefits - except for the benefits discussed below.  States must follow the procedural requirements for recovering any sums from the sponsor provided in DoJ implementing regulations at 8 CFR 213a.2 (Use of affidavit of support) and 213a.4 (Actions for reimbursement).  The State may want to consider the sponsor's particular circumstances (e.g., health, family status, assets, resources, financial status), and any other feasibility factors, toward its decision to pursue recovery of any unreimbursed TANF benefits.

Federal benefits described in section 423(d) of PRWORA (8 USC 1183a note) are not subject to sponsor reimbursement.  Of course, benefits that are exempted from the definition of a Federal public benefit in section 401(b) (8 USC 1611(b)) would not be considered a means-tested public benefit, and therefore would not be subject to deeming or reimbursement.  For example, Federal or State-funded short-term, non-cash emergency relief and noncash programs services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified in Attorney General Final Order 2353-2001 are not considered a public benefit and are not subject to sponsor reimbursement

Also, if sponsors do not provide basic support to the immigrants they bring to the US, the sponsored immigrants may sue their sponsors.  (See 8 USC 1183a(a)(1)(B) and 1183a(e)(1)).

Q17.  How does the sponsor's liability to reimburse the agency that provides a Federal means-tested public benefit to the sponsored LPR impact the deeming provision at title IV, section 421 of PRWORA as amended?

R17.  The sponsor's liability, described in response 16, to reimburse an agency for the cost of a Federal means-tested public benefit provided to the sponsored LPR is a separate issue from the deeming provision at section 421.  Thus, the sponsor's liability does not directly affect the deeming rules.

The agency must still deem available the income and resources of the sponsor, who signed the I-864, and the sponsor's spouse, in determining eligibility for and payment of a Federal means-tested public benefit.  If the agency provides the benefit to the LPR, then it is up to the agency to determine whether to take action to seek reimbursement of the unreimbursed cost of the benefit from the sponsor.

Q18.  How do the special rules in title IV-A, section 408(f) of the Social Security Act (Special Rules Relating To The Treatment Of Non-213A Aliens) relate to the deeming requirement at title IV, section 421 of PRWORA as amended (Federal Attribution Of Sponsor's Income And Resources To Alien)?

R18.  As previously explained, section 421 only pertains to LPRs whose sponsor executed an I-864 Affidavit pursuant to the requirements of section 213A of the INA.  The provisions in section 408(f) only pertain to "non-213A aliens," whose sponsors did NOT execute an I-864 Affidavit, but who signed a different affidavit of support, such as INS Form I-134 (see response 3i).  This is because certain categories of non-citizens who are not family-based or the employment based immigrants covered by section 213A, may need affidavits to satisfy the public charge requirement.  Neither the deeming requirement in section 421 nor the special rules in title IV-A, section 408(f) of the Social Security Act apply to non-citizens who are sponsored by an organization or do not have sponsors.

Basically, the provisions in section 408(f), including the 3-year deeming period, mirror the deeming requirement that applied under the former AFDC program, with one notable difference.  States may now "elect to take the income or resources of any sponsor of a non-213A alien into account in determining whether the alien is eligible for assistance" under the State's TANF program … "or in determining the amount or types of such assistance to be provided to the alien" (underlining added).  If a State so elects, then section 408(f)(1) and (2) sets forth the applicable income and resource deeming methodology and the rule pertaining to a non-213 alien whose sponsor is or was a public or private agency.  Sections 408(f)(5) and (6) specify the non-citizens who are exempt from deeming:  (a) minor children whose sponsor is their parent or the parent's spouse; (b) refugees; (c) persons paroled in the US for one year or more; and, (d) asylees.

It is important to note that section 408(f) uses the word "assistance."  Consequently, States may choose to deem/ not deem the income or resources of sponsors who executed a non-213A affidavit of support (i.e., an affidavit other than an I-864 Affidavit) in determining the eligibility and payment amount of Federal and/or State-funded TANF "assistance," as defined in 45 CFR 260.31(a).

Finally, there are no sponsor reimbursement provisions in section 408(f).  Unlike the I-864 Affidavit, some courts have held that the other affidavits of support for sponsored immigrants do not constitute legally binding contracts between the sponsor and the US government relative to the reimbursement of assistance provided.

Q19.  If a State provides a State-funded public benefit to a LPR whose sponsor executed an I-864 Affidavit, is the State required to deem the income and resources of the sponsor and the sponsor's spouse's (if applicable) in determining eligibility for and amount of the benefit?

R19.  The State is not required to consider the income and resources of the sponsor and the sponsor's spouse's (if applicable) in determining eligibility for and amount of a State-funded public benefit.  However, title IV, section 422 of PRWORA, as amended (codified at 8 USC 1632), gives States the authority to do so, if the State so elects.  For States that elect a deeming policy with respect to an LPR whose sponsor executed an I-864 Affidavit, we recommend that the State specify which State-funded public benefits are subject to this policy.

Thus, States may apply deeming rules when determining eligibility for and the amount of a segregated State TANF public benefit or a public benefit paid using separate State funds. States could have elected to deem for State public benefits as early as December 19, 1997, the date the I-864 Affidavit became effective.  Unlike the receipt of a Federal means-tested public benefit, qualified aliens entering the country on or after August 22, 1996 are not barred for five years from receiving a State public benefit.States do not have the authority to take the sponsor's income and resources into account when considering eligibility for and the amount of any benefit set forth in section 422 (b) of PRWORA, as amended (8 USC 1632(b)) (exceptions to States' authority).  For example, State-funded short-term, non-cash emergency relief and noncash programs services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified in Attorney General Final Order 2353-2001 would not be subject to deeming.

Although States are authorized to deem the sponsor's income and resources in determining the eligibility for and the amount of the sponsored immigrant's State-funded public benefit, the State may only enforce the I-864 Affidavit with respect to the receipt of a State-funded means-tested public benefit, as discussed below.  (Compare 8 USC 1632 (a) with 8 USC 1183a(a)(1)(B) and (b)(1)(A). See also 8 CFR 213a.4.)

Q20. Does the sponsor incur any liability for the cost of any State-funded means-tested public benefit provided to the sponsored LPR?

R20.  The State or any political subdivision of a State may seek reimbursement from the sponsor who signed the I-864 Affidavit for the unreimbursed cost of any means-tested public benefit provided to the sponsored immigrant, as described in response 16.  However, benefits described in section 423(d) of PRWORA (8 USC 1183a note) are not subject to sponsor reimbursement.  States should issue determinations regarding the benefits considered to be "means-tested public benefits" for sponsor reimbursement purposes.

Other Resources:

A ’Summary of Immigrant Eligibility Restrictions Under Current Law’, including receipt of a Federal, State, or local public benefit, and deeming of sponsor's income and resource.

TANF-ACF-IM-98-5 dated August 24, 1998 , provides guidance regarding a Federal public benefit.

TANF-ACF-IM-97-4, dated August 28, 1997, discusses a Federal means-tested public benefit and refers to the notice on the subject published in the Federal Register on August 26, 1997 (62 FR 45256).

Attorney General Final Order 2353-2001

INS' interim rule on ’Affidavits of Support on Behalf of Immigrants’, published in the Federal Register on October 20, 1997, (62 FR 54346)

A Fact Sheet written by INS dated October 20, 1997, provides a series of questions and answers regarding deeming and the Affidavit of Support Form I-864, under Section 213 of the Immigration and Nationality Act.

Forms G-845 and G-845 Supplement

’Non-Citizen Requirements in the Food Stamp Program’ (USDA Eligibility Determination Guidance issued January 2003)

Cited sections of the US code on ’Restricting Welfare And Public Benefits For Aliens’ 

For additional guidance on the exemption for victims of domestic violence and extreme cruelty, States may wish to consult the following addition resources:

Part II of Exhibit B to Attachment 5 of the ’Notice of Interim Guidance on Verification of Citizenship’, ’Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996’, 62 FR dated November 17, 1997;

Guidance published in 62 FR 65285-65287 on December 11, 1997, on standards and methods for determining whether a substantial connection exists between a battery or extreme cruelty and the need for public benefits; and,

’Fact Sheet on Access to HHS-Funded Services for Immigrant Survivors of Domestic Violence’ developed by the Office for Civil Rights of the US Department of Health and Human Services, available at the following link:

Inquiries:

Inquiries and comments should be directed to the appropriate Administration for Children and Families (ACF) Regional Administrator.

/s/

Andrew Bush, Director
Office of Family Assistance