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Marriage-Based Immigration and Affidavit of Support Requirements (Part I)

As an Austin immigration lawyer who helps many couples through marriage-based adjustment of status, I often get questions about the Affidavit of Support portion of the petition. Those who petition for immigration benefits for their spouse are often shocked to find out that when they sign the Affidavit of Support, they are in essence promising the government that they will be liable for any expenses that arise from means-tested public benefits that are used by their spouse.

So what exactly is a Means-Tested Public Benefit? What is the petitioner really liable for? There’s Federal Means-Tested Public Benefits and State Means-Tested Public Benefits. To date, Federal agencies administering benefit programs have determined that Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and State Child Health Insurance Program (SCHIP).

As for States, each state will determine which, if any, of its public benefits will be considered means-tested. Once a State determines that it has programs that meet the definition of “means-tested,” generally, they are encouraged to provide notice to the public on these programs. It is best to check with your State Public Assistance Officer to determine what programs are considered means-tested in your state.

What programs are not included in the means-tested analysis? Generally, emergency medicaid; short-term, non-cash emergency relief; services provided under the National School Lunch and Child Nutrition Acts; immunizations and testing and treatment for communicable diseases; student assistance under the Higher Education Act and the Public Health Service Act; certain forms of foster-care or adoption assistance under the Social Security Act; Head Start Programs; means-tested programs under the Elementary and Secondary Education Act; and Job Training Partnership Act programs.

Understanding the meaning of “means-tested benefit” is important. Remember the Affidavit of Support (also known as Form I-864) is more than just a form; It is a legal, binding contract.

If you need help with your marriage-based immigration petition, Daniella Lyttle is an experienced Austin immigration lawyer who can help. You can call us 24-7 at (512) 329-2770.

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