7. Affidavit of Support

The new AOS form, Form I-864, asks whether the sponsor or a member of the sponsor's household has received means-tested benefits within the past 3 years. The purpose of this question is not to determine whether the sponsor is or is likely to become a public charge, but to ensure that the adjudicating officer has access to all facts that may be relevant in determining whether the 125-percent annual income test is met. Any cash benefits received by the sponsor cannot be counted toward meeting the 125-percent income threshold, but receipt of other means-tested benefits, such as Medicaid, is not disqualifying for sponsorship purposes. As noted above, public benefit programs are increasingly available to families with incomes above 125 percent of the poverty line.

The regulations implementing the new AOS requirement are found at 8 CFR part 213a. Separate guidance has been issued on adjudicating applications including an AOS.

Continued Use of Form I-134

The use of the new AOS (Form I-864) is mandatory for those categories of immigrants listed in section 212(a)(4)(C) and (D), and a Service officer may not accept a Form I-134 in place of the new AOS for these immigrants if the application was filed on or after December 19, 1997. In those cases not governed by sections 212(a)(4)(C) and (D) and 213A (e.g., parolees, nonimmigrants, or diversity immigrants) in which the Service has traditionally accepted Form I-134, Service officers may continue to do so on a di scretionary basis. Use of Form I-361 will continue in cases involving Amerasians under Public Law 97-361.

8. Naturalization

There is no public charge test for purposes of naturalization. There are two narrow circumstances under which the public charge issue can arise in a naturalization case. First, the alien's admission for permanent residence may not have been "lawful" pursuant to section 318 because, at the time of admission or adjustment , the alien was subject to exclusion as an alien likely to become a public charge. This would generally occur only if the Service can show that the alien withheld or misrepresented material facts relating to the public charge issue at the time of admission or adjustment. Secondly, the alien's initial admission may have been lawful, but later the alien became deportable as a public charge, under the test described in section 3, above. This would not be a bar to naturalization unless the Service actually instituted deportation proceedings against the alien. As a practical matter, neither of these situations is likely to occur.

The Service has no authority to make the repayment of public assistance a condition for granting naturalization, and officers should not request proof of repayment from applicants in connection with a naturalization adjudication.

9. Public Charge Bonds

Section 213 of the INA, Admission of Certain Aliens on Giving Bond, was amended by IIRIRA only by including a parenthetical reference to the new AOS prescribed in INA section 213A. Where appropriate, officers may use the public charge bond option pursuant to section 213 as has been done in the past.

10. Points of Contact

Questions concerning this memorandum should be referred to Sophia Cox or Kevin Cummings, Headquarters Office of Adjudications, at 202-514-4754, through appropriate channels.

FOOTNOTES

1/ The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193, as amended by the Balanced Budget Act of 1997, Pub. L. 105-33; the Agricultural Research, Extension, and Education Reform Act of 1998, Pub. L. 105-185; and the Noncitizen Technical Amendments Act of 1998, Pub. L. 105-306.

2/ See Section 4 below on categories of aliens who are not subject to public charge determinations.

3/ 8 C.F.R. § 245a.4(b)(11)(iv)(B), and see INA § 212(a)(4)(B). The federal courts have also endorsed this "totality of the circumstances" test. See, e.g., Zambrano v. INS , 972 F.2d 1122 (9th Cir. 1992), judgment vacated on other grounds, 509 U.S. 918 (1993).

4/ Matter of Harutunian , 14 I. & N. Dec. 583 (BIA 1974) (interpreting § 212(a)(15), recodified as § 212(a)(4)).

5/ Matter of Martinez-Lopez , 10 I & N 409, 421-422 (AG, Jan. 6, 1964).

6/ 8 CFR § 245a.2(k)(4).

7/ The 5-year period states again each time an alien enters the United States after a departure, except for LPRs who are not applicants for admission unless they meet the terms of section 101(a)(13)(C).

8/ While this decision concerned the public charge provision of the 1917 Act, the test established continues to be valid under current law, which is substantially the same as the 1917 law. See Matter of L. 6 I. &; N. Dec. 349 (BIA 1954), and Matter of Harutunian 14 I. &; N. Dec. 583 (BIA 1974).

9/ Matter of L , 6 I. & N. Dec. 349 (BIA 1954).

10/ Amerasian immigrants are defined in section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988.

11/ See Matter of Mesa , 12 I. & N. Dec. (Dep. Assoc. Comm. 1967) (public charge exception under the CAA); NACARA, Pub. L. 105-100, section 202(a); HRIFA, Pub. L. 105-277, Title IX, section 902.

12/ Cuban/Haitian entrants are defined in section 501(c)(e) of the Refugee Education Assistance Act of 1980.

13/ Section 101(a)(13)(C) provides that an LPR seeking admission to the U.S. is not an applicant for admission unless the alien: (i) has abandoned or relinquished that status; (ii) has been absent for more than 180 days; (iii) has engaged in illegal activity after leaving the U.S.; (iv) left the U.S. while in removal proceedings; (v) has committed certain offenses in the U.S.; or (vi) is attempting to enter other than at a port of entry or has not been admitted to the U.S. after inspection and authorization.

14/ See Perales v. Reno , 48 F.3d 1305 (2d Cir. 1995).

15/ 9 FAM § 40.41 n.9.1

16/ See section 4, above, for a discussion of public charge exceptions.

17/ States have flexibility in administering the TANF program and may choose to provide non-cash assistance such as subsidized child care or transportation vouchers in addition to cash assistance. Such non-cash benefits should not be considered for public charge purposes. States may also provide non-recurrent cash payments for specific crisis situations under TANF. Such payments should not be considered for public charge purposes since they are not cash for income maintenance.

18/ Costs for imprisonments for conviction of a crime are not a basis for a public charge determination.

19/ The Service's decision not to consider Medicaid, CHIP, and Food Stamps for public charge purposes does not affect the authority of benefit granting agencies to seek repayment for benefits received by an alien from the alien's sponsor under the new AOS.