A version of this article first appeared in the Side Bar journal for the Litigation…
Today we received a leaked copy of a draft Executive Order that may be released later this week. If signed, this Executive Order would impose harsh new rules against immigrants, requiring them to meet new standards for showing self-sufficiency. It would also direct the federal government to sue U.S. citizen visa sponsors to recover the cost of public benefits paid to any immigrant they sponsor.
The document is entitled Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility. The draft document, as reviewed by us, may be downloaded here: Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility.
Here is our analysis. Because the document we reviewed was only a draft, we will update as more information because available and if a final Order is signed.
A draft Executive Order instructs the federal government to sue U.S. citizens to recoup the cost of public benefits lawfully given to green card holders. It will also dramatically increase the burden for immigrants who cannot readily prove financial self-sufficiency, and make poor immigrants priority targets for deportation.
The draft Executive Order on public charge inadmissibility will, among other implications:
- Instruct federal agencies to sue individual U.S. citizens and residents to recoup the cost of benefits lawfully paid to immigrants.
- Impose the harshest standard in history for who is inadmissible on “public charge” grounds, making it harder for the non-affluent to immigrate.
- Prioritize deportation of low-income immigrants, regardless of whether they are criminals or repeat immigration law violators.
The proposed Order will punish vulnerable American families when green card holders receive benefits to which they are legally entitled. It will make the immigration process for the non-affluent, leading to separation of law-abiding U.S. families. And it furthers the false stereotype that immigrants are lazy, sowing further discord in a divided nation.
This memorandum outlines the main public policy implications of the draft Executive Order.
1. Understanding public charge admissibility.
Any foreign national wishing to enter the U.S. is screened through statutory grounds of inadmissibility. These range from crime-related grounds to health-related grounds. A long-standing ground of inadmissibility has barred an individual likely to become a “public charge.” Contrary to the Draft Order, the standard actually dates back to 1894.
Admissibility determinations are made either by a consular officer at the time of a visa interview, or at the time the individual applies within the U.S. to become a permanent resident (i.e., receive a green card). The determination is also made at a U.S. port of entry, regardless of whether an individual holds a valid visa.
The Form I-864, Affidavit of Support.
Since 1996 immigration petitioners have been required to sign a binding financial support contract – the Form I-864, Affidavit of Support – in all family-based immigration cases. Absent the Form I-864, the applicant is per se inadmissible.
The I-864 is required in all cases where a U.S. citizen or permanent resident has filed an immigration petition for a foreign family member – including for a fiancé(e) visa – such as a parent or spouse. The limited exceptions to this broad rule are rare.
By signing the Form I-864, the sponsor makes two legally enforceable contract:
- To maintain the intending immigrant’s income at 125% of the Federal Poverty Guidelines (“Poverty Guidelines”), and
- To reimburse government agencies for any means-tested public benefits paid to the beneficiary.
The I-864 provides that the sponsor will be held personally liable if he fails to maintain support and may be sued by either the beneficiary or by a government agency that provided means-tested public benefits.
The sponsor’s support duty is of indefinite duration. The responsibility lasts until the first occurrence of one of these five events: the beneficiary,
- becomes a U.S. citizen;
- can be credited with 40 quarters of work;
- is no longer a permanent resident and has departed the U.S.;
- after being ordered removed seeks permanent residency based on a different I-864; or
It is settled that a couple’s separation or divorce does not terminate the sponsor’s duty.
In addition to the primary sponsor (i.e., the immigration petitioner) one or more additional individuals may have joint and several liability as to the I-864 obligations.
First, where the sponsor is unable to demonstrate adequate financial wherewithal a “joint sponsor” may be used to meet the required level. The joint sponsor may be any adult U.S. citizen or lawful permanent resident currently residing in the United States. Joint sponsors typically are – but are not required to be – family or close friends of the primary sponsor. A joint sponsor executes a separate Form I-864, indicating herself as a joint rather than primary sponsor. Once submitted, the joint sponsor’s liability is joint and several with the primary sponsor.
Second, the primary sponsor may use income of qualifying household members to meet the requisite support level. In order to use such income the household member must execute a Form I-864A. The household member becomes jointly and severally liable – and this paradigm has been found enforceable.
Factors considered in addition to the Form I-864.
Even if an intending immigrant has a signed Form I-864, she may still be determined inadmissible on public charge grounds. A variety of statutory factors are considered in the public charge determination.
- Family status;
- Assets, resources, and financial status; and
- Education and skills.
Additionally, the Department of State’s Foreign Affairs Manual instructs consular officers to consider two primary factors:
- Will the individual likely rely on “public cash assistance for income maintenance?” and
- Will the individual likely be “[i]nstitutionalization for long-term care at U.S. Government expense.”
“Public cash assistance” is narrowly defined to include only SSI, TANF, and State/local cash assistance programs. All other federal, State and local programs are expressly excluded under current standards.
2. Lawsuits against U.S. citizen/resident sponsors to recoup public benefits.
- Require lawsuits against U.S. citizen or lawful residents to recover the cost of any public benefit – broadly defined – that has been given to a green card holder they sponsored.
Federal law already allows lawsuits against family-based visa sponsors in two situations:
- By the immigrant, when his/her income has fallen below 125% of the Federal Poverty Guidelines; and
- By Federal, State or local governments to recoup the cost of certain public benefits paid to the immigrant.
The Executive Order will not impact the first of those scenarios. Lawsuits by immigrants against their sponsors are relatively rare, but have been successfully brought across the country.
To date, lawsuits to recoup the expense of public benefits have been vary rare. To date, there are no reported cases (in contrast to approximately 150 by immigrants against their sponsors). Those jurisdictions that have experimented with the strategy appear to have determined that it was an unpopular public policy.
The draft Order makes enforcement action against sponsors compulsory.
Under 1996 legislation, immigrants are ineligible for most means-tested public benefits until they have residency for five years. Exceptions apply, however, such as for survivors of domestic violence.
Although the Executive Order is unclear, agencies could interpret it as a mandate to sue a friend or family member who has served as a joint sponsor.
The Order could also harm the ability of green card holders to recover financial compensation from their sponsors. Generally following a dissolution – in situations that may involve abuse – a green card holder can sue her sponsor to recover support equivalent to 125% of the Federal Poverty Guideline for her household size. If such an individual was receiving any form of lawful public benefit, the federal government could sue the sponsor and achieve judgment priority, making it impossible for the green card holder to recover from sponsor.
3. Harshening the “Public Charge” standard.
- Expand the definition of “pubic charge” to include anyone “likely” to receive any public benefit based on financial need.
In practice, a family-based immigrant is currently unlikely to be determined a public charge unless: (1) s/he has already received cash benefits; or (2) has a serious mental or physical disorder and no documented means to fund treatment.
The Executive Order would authorize immigration officers to guess as to whether an individual might later seek benefits, and broaden the types of benefits programs covered by this rule. An individual “likely” to seek child-care benefits, job training or educational assistance such as Head Start could be inadmissible.
The broadened standard invites speculation. On what basis should a consular officer gauge this “likelihood?” The Department of Homeland Security is tasked with making that determination through notice and comment rulemaking.
The Executive Order will invite stereotypes and discrimination by forcing immigration officers to speculate about an applicant’s indefinite future needs.
4. Make lawful receiptients of pubic benefits a deportation priority.
- Deport “as expeditiously as possible” any removeable alien who receives public benefits, as broadly defined, even if lawfully entitled to the benefits.
Current policy memoranda create clear enforcement priorities for deportation, targeting criminals, repeat immigration violators and terrorists. The Executive Order places those lawfully receiving public benefits on this same list.
Federal law already tightly defines which federally-funded benefits a non-citizen is eligible to receive. The Executive Order, therefore, targets for deportation individuals who are receiving benefits to which they are entitled by law.
5. Additional policy requirements in the Executive Order.
In addition to the three major policy statements outline above, the Executive order will:
- Instruct the Department of Treasury to promulgate rules requiring a Social Security Number for families claiming the Child Tax Credit.
- Require the Department of State to “describ[e] steps taken to combat the problem of ‘birth tourism.’”
- Ask the Office of Management and Budget to study the savings benefit of prohibiting States from seeking waivers that allow them to expand eligibility to public benefit programs.
 Andrew Bremberg, Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility (Jan. 23, 2017) (draft) (referred to herein as “Executive Order” or “Order”).
 See 8 U.S.C. § 1182.
 8 U.S.C. § 1182(a)(4).
 33 Stat. 1213 (1894).
 See id. The determination is also made at the U.S. port of entry, though the public charge adjudication in family-based cases is chiefly done at the visa interview and residency application.
 Interim regulations for the I-864 were first published in 1997 and were finalized July 21, 2006. Affidavits of Support on Behalf of Immigrants, 62 Fed. Reg. 54346 (Oct. 20, 1997) (to be codified at 8 C.F.R. § 213.a1 et seq.) (hereinafter Preliminary Rules); Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732 (June 21, 2006) (same) (hereinafter Final Rules).
 Those applying for a fiancée visa are not required to produce a Form I-864 at the time they are processed by the consular post. Once the foreign national fiancée enters the U.S., however, she must marry within 90 days and thereafter apply to “adjust status” to U.S. permanent resident. During this process she is then required to provide a Form I-864 from her sponsor.
 8 U.S.C. § 1182(a)(4)(C). The Form I-864 is also required in a handful of employment-related contexts, wherein a U.S. employer has petitioned for the foreign national.
 Form I-864, supra note 6, at 6. See also 8 U.S.C. § 1183a(a)(1)(A) (same requirement by statute).
 Form I-864, supra note 6, at 7. In lieu of tiptoeing around gendered pronouns, beneficiaries and sponsors will be assigned the feminine and masculine herein, respectively, as this represents the vast majority of cases discussed herein.
 Form I-864, supra note 6, p. 7. See also 8 U.S.C. § 1183a(a)(2), (3) (describing period of enforceability).
 Hrachova v. Cook, No. 5:09-cv-95-Oc-GRJ, 2009 U.S. Dist. LEXIS 102067, at *3 (M.D. Fla. Nov. 3, 2009) (“[t]he view that divorce does not terminate the obligation of a sponsor has been recognized by every federal court that has addressed the issue”).
 8 C.F.R. § 213a.2(c)(2)(iii)(C).
 8 U.S.C. § 1183a(f)(1).
 See, e.g., Matlob v. Farhan, Civil No. WDQ-11-1943, 2014 WL 1401924 (D.Md. May 2, 2014) (Memo. Op.) (following bench trial, holding joint sponsor jointly and severally liable for $10,908 in damages).
 See Form I-864A, Contract Between Sponsor and Household Member (rev’d Mar. 22, 2013), available at http://www.uscis.gov/sites/default/files/files/form/i-864a.pdf (last visited Jan. 8, 2015). Note that unlike the I-864, the I-864A does not set forth a complete recitation of the immigrant-beneficiary’s enforcement rights under the I-864, such as the right to attorney fees. Id., Page 3.
 Panchal v. Panchal, 2013 IL App (4th) 120532-U, No. 4-12-0532, 2013 Ill. App. LEXIS 1864, at *11 (Ill. App. Ct. 4th Dist. 2013). See also Liepe v. Liepe, Civil No. 12–00040 (RBK/JS), 2012 U.S. Dist. LEXIS 174246 (D.N.J. Dec. 10, 2012) (denying plaintiffs’ summary judgment motion against household member where plaintiffs failed to establish that the defendant executed an I-864A.
 8 U.S.C. § 1182(a)(4)(B).
 9 FAM 302.8-2(B)(1).
 Executive Order § 3(i)(i)
 Executive Order § 3(a)(ii).
 Executive Order § 3(d).
 Executive Order § 3(a)(v).
 Executive Order § 3(e).