(7) POLICY: Failure to Review or Consider Arguments Against I-864 Sufficiency at Time of Adjudication


Summary:

Once USCIS has granted an immigrant a conditional permanent resident, utilizing the I-864 as part of that application, USCIS then fails to review the sufficiency of the I-864 contract when subsequent applications are filed. USCIS fails to ever contact the Sponsor to inquire or request proof of sufficiency of the I-864 contract at the time of subsequent applications. Even when Sponsors contact USCIS with evidence outlining the Sponsor’s inability to fulfill the I-864 contract obligations, USCIS fails to take that information into consideration when making adjudications.

Such failures are contrary to both law and policy.

According to USCIS document FR 23-06: “To avoid a finding of inadmissibility as a public charge, the alien must be the beneficiary of an affidavit of support filed under section 213A of the Act, 8 U.S.C. 1183a. Section 213A of the Act specifies the conditions that must be met in order for an affidavit of support to be sufficient to overcome the public charge inadmissibility ground.” However, USCIS is failing to review such I-864 affidavits of support and refusing to take into consideration the evidence submitted by sponsors who evidence  their inability to support the immigrant at the time of adjudication.

 

Document FR 23-06 also states: “… the immigration judge's jurisdiction to adjudicate the adjustment application includes authority to adjudicate the sufficiency of the affidavit of support.”

 

And

 

“If more than a year has elapsed since the submission of the Form I-864, the final rule gives the Department of State officer, immigration officer, or immigration judge the discretion to request more current information if the Department of State officer, immigration officer, or immigration judge concludes that this additional evidence is necessary to the proper adjudication of the case. In any case in which the intending immigrant is requested to submit additional evidence, the additional evidence must relate to the current year, not to the year of the filing of the immigrant visa or adjustment application. The sufficiency of the Form I-864 will then be adjudicated based on the additional evidence.”

Yet despite the above rules, Sponsors are denied any ability to ever have their I-864 declared insufficient even when evidence would support their claims.

National Security:

Aliens who would normally have their applications denied due to inadmissibility for public charge grounds are corruptly being granted legal status by USCIS because of USCIS’ failure to review or even consider material information exposing the insufficiency of the I-864. This places the United States economy in danger. The number of aliens admitted to the United States without sufficient I-864 contracts is unknown and the number of aliens who went on to utilize public means tested benefits because the sponsor was incapable of supporting such immigrant, is also unknown.

Other Legal Issues:

Sponsors are being defrauded into signing the I-864 contract and USCIS is denying Sponsors any opportunity to be heard before the agency, present evidence and legal arguments regarding the insufficiency of the document, or have the immigration judge determine the sufficiency of the I-864.

Document FR 23-06 further states: “The final rule also makes clear that an intending immigrant may not have more than one joint sponsor, in addition to the principal sponsor. This clarification is consistent with the statement of managers accompanying IIRIRA with respect to section 213A, which clearly indicates that the managers did not consider it appropriate to permit a second joint sponsor if the joint sponsor's income was not sufficient. H. Rep. No. 104-828 at 242 (1996).” Yet despite this rule USCIS continues to accept multiple co-sponsored affidavits of support and then refuses to declare them void when USCIS failed to adhere to the rule.

Sponsors who are defrauded into signing I-864 contracts never have their contracts reviewed even though Document FR 23-06 also states, “(vi) Effect of fraud or material concealment or misrepresentation. A Form I-864 or Form I-864A is insufficient to satisfy the requirements of section 213A of the Act and this part, and the affidavit of support shall be found insufficient to establish that the intending immigrant is not likely to become a public charge, if the Department of State officer, immigration officer or immigration judge finds that Form I-864 or Form I-864A is forged, counterfeited, or otherwise falsely executed, or if the Form I-864 or Form I-864A conceals or misrepresents facts concerning household size, household income, employment history, or any other material fact. Any person who knowingly participated in the forgery, counterfeiting, or false production of a Form I-864 or Form I-864A, or in any concealment or misrepresentation of any material fact, may be subject to a civil penalty under section 274C of the Act, to criminal prosecution, or to both, to the extent permitted by law. If the person is an alien, the person may also be subject to removal from the United States.”

It appears USCIS only applies such consequences to Sponsors who may have engaged in fraud while shielding immigrants from any such adverse actions when evidence confirms the immigrant defrauded his/her Sponsor, and therefore the Federal Government.