HHS Updates Poverty Income Guidelines

Posted by Norka M. Schell, New York Immigration Attorney
www.lawschell.com

The Department of Health and Human Services (HHS) has issued its annual update of the federal poverty guidelines. The poverty guidelines, mandated by the Omnibus Budget Reconciliation Act of 1981 (OBRA), are used by a number of federal programs to determine eligibility for benefits or services. The annual update reflects the previous year's change in the Consumer Price Index and is broken down into three categories:

 

(1) poverty guidelines for the 48 contiguous states and the District of Columbia,

(2) poverty guidelines for Alaska, and

(3) poverty guidelines for Hawaii.

 

The 2013 guidelines set the poverty level for the 48 contiguous states and the District of Columbia at $11,490 for one person (an increase of $320 over last year's $11,170) with $4,020 for each additional person in the household (an increase of $60 over last year's total).

 

In the immigration context, the guidelines are relevant for “public charge” issues, among others, and may also be useful in obtaining waivers of some application fees for certain indigent aliens, such as applicants for temporary protected status.They are particularly important, however, in complying with the affidavit of support requirements imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

 

IIRIRA created INA § 213A [8 USCA section 1183a], which provides that sponsors of all family-based and some employment-based immigrants must provide a legally enforceable affidavit (Form I-864) illustrating that they are capable of maintaining an annual income equal to at least 125% of the HHS poverty guidelines.The sponsor must meet the 125% requirement at the time when the immigrant visa or adjustment of status application is made.This calculation takes into account the total “family unit” for which the sponsor will be responsible, defined by INA § 213A(f)(6)(A)(iii) [8 USCA section 1183a(f)(6)(A)(iii)]as “members of the sponsor's household (including family and non-family dependents) plus the total number of other dependents and aliens sponsored by that sponsor.”

 

Thus, according to the new 2013 poverty guidelines, an individual in one of the 48 contiguous states or the District of Columbia would need an income of $14,362.50 for one person and $5,025 for each additional household member so that an individual who has four family members and wishes to sponsor an immigrant parent would be required to show an annual income of $39,487.50--a figure equal to 125% of the $31,590 poverty income level for a family of six. Consular officers and U.S. Citizenship and Immigration Services (USCIS) adjudicators, however, may still take into account an alien's ability to provide for himself or herself and any special circumstances, such as the need for medical treatment or other financial obligations, in determining whether the alien is likely to become a public charge.

 

The 2013 guidelines, while otherwise effective on the date of publication, do not become effective as to affidavits of support until March 1, 2013, pursuant to a USCIS regulation that provides that USCIS and the Department of State will not apply the new guidelines until “the first day of the second month after the date the guidelines are published in the Federal Register.