Immigration Law Essays

No "Affidavit of Support" For Low-Income Elderly Petitioners, Lian Kuang

Low-income elderly petitioners are severely disadvantaged by the existing income requirement that a petitioner must meet in order to file an "Affidavit of Support" to bring a family member to the United States. The current law creates a legally enforceable contract based on the affidavit which effectively forecloses any opportunity for low-income elderly petitioners to reunite with their family members in the United States. This population is not likely to meet the requisite income, and the binding nature of the affidavit discourages anyone to agree to be a joint sponsor. The ability of an elderly petitioner to reunite with family members is important because our society recognizes the significance of having the support of close family members when an elderly person encounters critical and often stressful end-of-life issues. Therefore the legislature should put on the immigration reform agenda a waiver provision for eligible low-income elderly petitioners from the Affidavit of Support requirement. This essay will explore the current law, the impact of the law on elderly petitioners, two reasons why the current law needs to be changed, and my proposal of reform on the current law.

Under current immigration law, emended in 1997, an alien is inadmissible into the United States unless the person petitioning for the alien's admission has executed an acceptable Affidavit of Support. INA §212(a)(4)(C). The most significant requirements of an acceptable Affidavit of Support are that a) it is executed by a sponsor as an enforceable contract and b) the sponsor demonstrates the ability to maintain an annual income equal to at least 125 percent of the Federal poverty line. INA §213A(a), INA §213A(f)(1)(E). The income threshold is determined by the size of a family unit which is equal to the sponsor's household size plus the number of sponsored immigrants. INA §213A(f)(6)(A)(iii). There is some "flexibility" to demonstrating means to maintain the threshold income by allowing "significant assets" to supplement the income requirement. INA §213A(f)(6)(A)(ii). To be sufficient, the cash value of all assets must exceed five times the difference between the sponsor's household income and the Federal poverty line for the sponsor's household size, thus if the sponsor is $10,000 away from meeting the annual income requirement, $50,000 worth of assets must be shown to satisfy the income requirement. M. Sheridan, The New Affidavit of Support and Other 1996 Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Being Public Charges, 31 Greighton L. Rev. 741, 759.

Prior to this 1997 law, a sponsor did not have to meet any income requirements, rather the sponsored immigrant must demonstrate that they would not require public aid by showing that they have jobs waiting, marketable skills, or enough savings to support themselves. See C. Dugger, Immigrant Study Finds Many Below New Income Limit, 3/16/97 NYT 11. Affidavits of Support were framed as moral obligations on the part of the sponsors and unlikely enforceable contract against them in courts. Id.

Although this 1997 law has been a great hurdle for all low-income petitioners, the greatest force of its impact is felt by low-income elderly petitioners trying to bring family members, mainly children and grandchildren, to the United States. Elderly petitioners, age 60 and above, are likely fairly recent immigrants themselves. They are likely retired and living off of their Social Security income and modest savings. In 2005, the average Social Security income for an elderly single person was about $11,000 annually. See Quick Facts, http://www.nyc.gov/html/dfta/downloads/pdf/quickfacts.pdf. Recent immigrants may have annual Social Security income that is significantly lower than the average since they have had less time to pay into Social Security. An elderly petitioner's modest income is often barely sufficient to meet the income threshold for a single person family unit under the "at least at 125% Federal poverty line" requirement, let alone meet the threshold for a larger household that includes the sponsored immigrants. A likely example is a single elderly petitioner seeking to petition an adult child, the spouse of the adult child, and the grandchild, thus the household size is four. The petitioner, under the 2005 Federal poverty guideline, must show an income of at least $24,000 (125% of the Federal poverty line for a household of four). Comparing $11,000, the average annual Social Security income of a single elderly, the elderly petitioner is $13,000 away from meeting the income requirement. Unless there is a $65,000 worth of assets (five times of $13,000) to supplement the income requirement, the elderly petitioner's child and his or her family are not allowed to join the elderly petitioner in the United States.

Supporters of this law may argue that there are steps that low-income petitioners can take to satisfy the income requirement, however for elderly petitioners these steps are often untenable. One option may be for the elderly retiree to reenter the workforce to supplement their annual Social Security income. However, this option is not likely to be plausible because of the limited job opportunities available to an elderly person after retiring. It is especially hard for an elderly immigrant who may not speak English to get a job that does not require manual labor. It is also not plausible where the elderly is physically no longer able to hold a job. A law that forces a physically frail elderly retiree to go back to work is also inhumane. Consequently, unlike a younger low-income petitioner who has an opportunity to earn more income through better schooling or further job enhancement, an elderly petitioner's only available increase in income is a minuscule annual standard of living adjustment to their Social Security income. Thus it is unlikely that an elderly on Social Security income can meet the income requirements to execute an Affidavit of Support alone. Similarly, the option of getting a joint sponsor to execute an Affidavit of Support with them is also a bleak one. More likely than not the prospective joint sponsor may not have a close relationship with either the sponsored immigrant or the petitioner, and therefore unlikely to be comfortable being legally bound to be financially responsible for them. Thus without any plausible avenue for an elderly petitioner to execute an adequate Affidavit of Support to bring their family members to the United States, the impact of the 1997 law is to effectively foreclose any opportunity for an elderly petitioner to reunite with these family members.

The 1997 law needs to be changed to provide a waiver for low-income elderly petitioners for two reasons. First, the effective foreclosure of any opportunity for low-income elderly petitioners to reunite with their family members in the United States is contrary to the policy underlying the United States' family-based immigration. Immigration based on family ties stems from the United States' commitment to encouraging immigrants to reunite and reconstruct their close families in the United States. See C. Dugger, Immigrant Study Finds Many Below New Income Limit, 3/16/97 NYT 11. This policy is especially important for the elderly population because of the level of emotional support that the elderly need as they get older and face end-of-life issues. Often the most appropriate source of this type of support is the individual's family. However, without a plausible avenue to satisfy the requirements of an Affidavit of Support to bring family members to the United States, the 1997 law not only discourages family reunification, for low-income elderly petitioners it effectively eliminates any opportunity of family reunification.

Second, the 1997 law was intended to prevent immigrants from becoming a public charge. However, the immigrant family members of the elderly petitioner can be a valuable asset in preventing the elderly from becoming public charges. Healthcare costs in this country are very high and growing exponentially; part of this growing cost is homecare and institutionalized care or nursing home care for the elderly. As the American population age and live longer this cost will continue to grow tremendously. It is rare for anyone to plan ahead and save for future homecare costs, therefore the cost of such care is likely to fall on the government. The immigrant family members of the elderly petitioner, such as adult children, can be a viable and preferred substitute for government funded care. The adult child can keep the elderly from being dependent on government funded care longer by providing the necessary care in the home. A family caregiver is more likely to advocate for keeping the elderly away from institutionalized care until absolutely necessary. Thus immigrant family members of an elderly petitioner can be a great asset for the government to reduce the cost of government-funded care for the elderly in the United States.

As a solution to alleviate the harsh impact of the 1997 law on low-income elderly petitioners, the legislature should provide a waiver provision for this specific group. The provision would waive the Affidavit of Support requirement for a) low-income elderly petitioners, b) who are unable to meet the income requirement either based on their own income or a joint sponsor, c) requires some level of homecare, and d) is petitioning a family member who is able and willing to provide such care to the petitioner. Instead of binding the sponsor to keep the sponsored immigrant from being a public charge, the immigrant may be required to be legally responsible to keep the low-income petitioner from being a public charge for a certain number of years. Additionally, the old law can be sufficient to address the fear of the new immigrant becoming a public charge by requiring the new immigrant to demonstrate that they will not need public aid by showing such things as jobs waiting, marketable skills, or enough savings. This waiver thus allows the low-income petitioner the opportunity to reunite with family members and have their homecare needs met by family members. In addition, the government's cost of providing homecare decreases, and society can still be assured that the new immigrants will not become public charges themselves.

In conclusion, the 1997 law requiring that new immigrants are not to be admitted into the United States unless petitioners or joint sponsors execute a legally enforceable Affidavit of Support by demonstrating the requisite income should be changed for low-income elderly petitioners. The impact of the law is to foreclose any plausible avenue for such petitioners from reuniting with family members, which is contrary to the policy of immigration based on family ties. A waiver should be given to eligible low-income petitioners because the harsh impact of the 1997 law is lessened, and the incoming family member can be a viable asset to reduce the increasing cost of elder care among immigrants in the United States.