Challenging Proposed DHS Rule Harmful to Lower Income Families

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On October 2, 2020, the U.S. Department of Homeland Security published a Notice of Proposed Rulemaking governing the “Affidavit of Support” requirements under section 213A of the Immigration and Nationality Act. Certain immigrants seeking to come to the United States are required to submit an Affidavit of Support signed by a sponsor who agrees to provide financial support to the sponsored immigrant. The Proposed Rule would impose onerous requirements on petitioning sponsors and joint sponsors, thereby making it more difficult for many noncitizens to immigrate to or remain in the United States, which can in turn have the negative effect of separating, or prolonging the separation of, immigrant families.

Among other sweeping changes, the Proposed Rule would impose the following burdens on potential financial sponsors and joint sponsors:

  • The sponsor must find a joint sponsor if (i) he or she used any amount of means-tested public benefits during the three years prior to submitting the Affidavit of Support, or (ii) the petitioning sponsor had a judgment entered against him or her at any time for failing to meet any prior sponsorship or household member obligation.
  • An individual cannot be a joint sponsor if (i) he or she has received means-tested public benefits during the previous three years, or (ii) had a judgment entered against him or her for failure to meet sponsor or household member obligations.
  • Sponsors must comply with burdensome and intrusive requests for sensitive personal information, including three years of bank account and tax documentation.
  • Significant limitations will be placed on the class of people who can be considered “household members” for purposes of adding their incomes to the sponsor’s income. For example, to combine the intending immigrant’s income with the sponsor’s, the immigrant and the sponsor must plan to live in the same household.

With just 30 days to respond to the Proposed Rule, a Proskauer pro bono team partnered with the Center for Family Representation to research, draft, and submit a public comment letter on November 2, 2020, demanding the withdrawal of the Proposed Rule in its entirety.

The Center for Family Representation (CFR) is a not-for-profit legal services organization that provides lawyers, social workers, and parent advocates to families and youth involved in the child welfare and juvenile justice systems in New York City, with the goal of reducing reliance on foster care, addressing the underlying causes of family instability, and keeping families together to avoid the devastating consequences of family separation.

Drawing upon CFR’s experience serving more than 3000 parents and youth annually, many of whom are noncitizens and rely on public benefits to support their families, the public comment letter focuses on the harm the Proposed Rule will cause to children, families, and the New York City child welfare system. In particular:

  • By imposing onerous requirements on petitioning sponsors and joint sponsors, the Proposed Rule gravely limits the number of individuals who can act as sponsors to immigrants who wish to come to the United States to reunite with other family members. Because intending immigrants are often parents of children already living in the United States, the Proposed Rule would compound family separation by keeping these intending immigrants outside the United States.
  • The Proposed Rule signals that the use of public benefits is detrimental to the family-based immigration system and, as a result, may cause immigrants and potential sponsors to avoid or stop seeking access to public benefits out of fear that doing so will harm their ability to sponsor family members for immigration purposes. Indeed, this Proposed Rule would also penalize lower income U.S. citizens who, if they have received public benefits in the past three years, could not sponsor immigrant relatives.
  • In deterring people who need public benefits from accessing those benefits, the Proposed Rule will increase involvement in the child welfare system. Many means-tested public benefits help provide for basic needs such as non-emergency Medicaid, food stamps, and housing assistance. If potential sponsors are afraid to use these benefits for themselves and their children, they may become unable to provide their children with basic necessities – a serious consequence that the child welfare system may use as the basis to file a neglect petition against the parent, which could result in children being removed to foster care.
  • To the extent that a decrease in public benefits participation leads to the separation of families whose children will be removed to foster care, the government will have to bear the additional foster care costs, and the children so removed will face well-documented risks of negative life outcomes associated with family separation.

At its core, the Proposed Rule is fundamentally unfair to lower income populations. It punishes both U.S. citizens and legal permanent residents who have had any financial difficulties in the past three years, regardless of the individual’s actual income at the time he or she is presently seeking to sponsor an immigrant relative. It intimidates potential sponsors with intrusive requests for sensitive personal information. It discourages those who are eligible for public benefits from making use of them, to the detriment of their children.

The harm caused by the Proposed Rule is compounded by the fact that the United States is in a state of economic crisis due to the COVID-19 pandemic, which makes it more likely that large numbers of potential sponsors are in need of public benefits. No sponsor or joint sponsor experiencing financial difficulties should have to make the painful choice of forgoing necessary public benefits or using benefits at the risk that they will be disqualified from sponsoring a loved one living outside the United States.

To access the public comment letter in full, click here.

Our pro bono team included partner Margaret Dale, associates Allison Heimann and Tonie Pimienta Lefebvre, and senior paralegal Lawrence Silvestro.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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