Over the years, U.S. Citizenship and Immigration Services has required more and more documentation. In one of my columns last year, I described that for just the most basic case of a U.S. citizen who petitions for a foreign national spouse, the couple will need to complete 52 pages of forms and read 113 pages of instructions. They will also need to read some of the information on the USCIS website landing pages for each form for more current information that is not on the form or instructions. The landing page has the most up-to-date information such as the filing fee, where to file, whether a new form will come out soon, whether an old form will no longer be accepted as of a certain date, and many other details which if overlooked could cause USCIS to send the entire package back. Or even worse, USCIS could accept the case, take the filing fees of $1,760, and then DENY the entire case. In recent months, USCIS has denied cases for failure to mark a blank box as “N/A,” for leaving out a photocopy of a single page of a passport, etc.
In addition to the forms, the couple must also submit copious amounts of information to prove that they are married, living together, have created a life together and earn enough money to support themselves. The foreign national has to submit a copy of every page of their current passport and often times a copy of prior passport(s). The U.S. citizen will need to submit every page of their U.S. tax return including all schedules and attachments such as W-2’s, 1099’s, etc. In some cases, they may need to include full tax returns for the last three years.
If they do not make enough annually to meet the income requirement, then they have to provide documentation to show ownership of assets to make up any shortfall, such as an investment account, a bank account, savings account or checking account. USCIS will want to see statements for the last 12 months so that they can see that the money has been in existence for a significant period of time. A typical filing will easily be several hundred pages.
Now, USCIS wants still more so that they can delve more deeply into whether they think the foreign national might ever need government assistance. As of Feb. 21, 2020, most immigrating foreign nationals must submit an I-944 Declaration of Self-Sufficiency. This is an 18-page form with 15 pages of instructions. The documentation it requires is often just as much as what was required to support the entire case, thus doubling the size of many if not most filings.
The foreign national spouse will have to provide very detailed information about themselves, and the U.S. citizen spouse will have to also provide information. The form asks for a complete financial history of all current assets and liabilities, a credit report, information about any bankruptcies, whether the person has health insurance, whether the person has ever received any public benefits, details about education, occupational skills and licenses and the ability to speak English. USCIS then wants proof for each of these. Proving up assets and liabilities means providing hundreds of pages of documentation to USCIS.
And even with all of that evidence, there is no real guidance on whether there is “enough” to prove up that the foreign national will not become a public charge. What used to be a cut-and-dried determination of whether the 125% federal minimum poverty guideline had been met has now become a sort of “throw it all up in the air and see where it lands” determination that subjects immigrants to unpredictable outcomes as USCIS adjudicators do not have clear guidance.
Not only is this overkill, it seems horribly invasive and requires that the couple provide documentation and information that is very sensitive and personal. U.S. immigration law already prohibits legal permanent residents from qualifying for public benefits for at least five years. That has been the law since 1997.
The I-944 form was supposed to be required as of Oct. 15, 2019. But after it was announced, the U.S. government was sued in numerous forums. On Jan. 27 this year, the U.S. Supreme Court stayed the injunction that had temporarily stopped the form from being required. So now we will wait for the underlying case to work its way through the court system.
The U.S. has historically required that immigrants make a general showing that they will be able to make a living, which makes sense. The rules that were in place previous to the I-944 required that a couple show that they made at least 125% of the federal minimum poverty guidelines. So for those filing in 2020, they have to show income of $21,550. For each additional family member, the couple would need to show about another $5,600. This make sense, as a full-time minimum wage job in Texas pays $15,600. So if the two of them were making minimum wage, they would comfortably meet the $21,550. If we think that minimum wage is enough to live on, then why is it not enough for a U.S. citizen to immigrate a spouse?
Alice Gruber has been practicing U.S. immigration and naturalization law since 1995. Since 2007, she has practiced in Cooke County for a range of small to medium-sized corporate clients nationwide, quarter horse ranches in Texas and individuals. If you’d like to suggest a specific immigration topic for a future column, email firstname.lastname@example.org.