Under INA §212(a)(4), an alien who, in the opinion of a consular at the time of the application for a visa, or the Attorney General at the time of the application for admission or adjustment of status, is likely to become a public charge at any time is excludable. The INS looks at the totality of circumstances in making its determination including the alien's age, capacity to earn a living, health, family circumstances, employment history and whether or not the alien has ever received public assistance.
§531 of the new law amends INA §212(a)(4) to require virtually all aliens immigrating through one of the family-based categories must obtain a legally binding affidavit of support as a condition of admission. Also, in any employment-based case where the petitioner is a relative of the beneficiary, or an entity in which a relative has a significant ownership interest, the petitioner must provide an affidavit of support.
Section §551 of the new law amends INA §213A to make affidavits of support legally enforceable for at least 40 qualifying quarters (in effect, 10 years) or until the beneficiary has become a U.S. citizen.
Sponsors signing the affidavit must be at least 18 years old, domiciled in the United States, and able to support both the sponsor's and the immigrant's families at an annual income level equal to at least 125 percent of the federal poverty guideline. An exception exists for active duty service members petitioning for their spouse or child, who may qualify if they are able to support the sponsored immigrant(s) at 100 percent of the poverty guideline. Sponsors must notify the INS whenever they move during the effective period of the affidavit, and are subject to monetary penalties for non-compliance.
The new affidavit of support becomes effective on December 19, 1997. Additional information appears in the family-based immigration article.