foster care

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On October 2, 2020, the U.S. Department of Homeland Security published a Notice of Proposed Rulemaking governing the “Affidavit of Support” requirements under section 213A of the Immigration and Nationality Act. Certain immigrants seeking to come to the United States are required to submit an Affidavit of Support signed by a sponsor who agrees to provide financial support to the sponsored immigrant. The Proposed Rule would impose onerous requirements on petitioning sponsors and joint sponsors, thereby making it more difficult for many noncitizens to immigrate to or remain in the United States, which can in turn have the negative effect of separating, or prolonging the separation of, immigrant families.

Among other sweeping changes, the Proposed Rule would impose the following burdens on potential financial sponsors and joint sponsors:

  • The sponsor must find a joint sponsor if (i) he or she used any amount of means-tested public benefits during the three years prior to submitting the Affidavit of Support, or (ii) the petitioning sponsor had a judgment entered against him or her at any time for failing to meet any prior sponsorship or household member obligation.
  • An individual cannot be a joint sponsor if (i) he or she has received means-tested public benefits during the previous three years, or (ii) had a judgment entered against him or her for failure to meet sponsor or household member obligations.
  • Sponsors must comply with burdensome and intrusive requests for sensitive personal information, including three years of bank account and tax documentation.
  • Significant limitations will be placed on the class of people who can be considered “household members” for purposes of adding their incomes to the sponsor’s income. For example, to combine the intending immigrant’s income with the sponsor’s, the immigrant and the sponsor must plan to live in the same household.

Last week, Proskauer obtained a critical victory for our client—a grandmother acting as guardian for her two learning-disabled grandchildren—in an appeal to the Appellate Division, First Department.  The appeal challenged a lower court holding that an amendment to New York’s Kinship Guardianship Assistance Program (“KinGAP”) did not apply retroactively to beneficiaries, such as our client’s grandchildren, who entered the program before the amendment took effect.

KinGAP, established in 2011, enables foster-care children for whom returning home or adoption are not available options, to achieve a permanent placement with a guardian relative.  To subsidize the costs of caregiving for guardians of limited means such as our client, KinGAP provides monthly assistance payments pursuant to a statutorily prescribed form of agreement between the guardian and a local department of social services.

When our client entered into a KinGAP agreement in 2014, New York Social Services Law § 458-b(7)(a) made the duration of the subsidy dependent on whether the agreement was entered into before or after the child’s 16th birthday.  Continued assistance payments were available beyond the age of 18 only if the agreement commenced after the child was already 16 years of age.  Section 458-b(7)(a) thus drew a distinction between foster parents and adoptive parents on the one hand and guardians on the other because foster and adoptive children were entitled to assistance payments until they turned 21 notwithstanding their age at the time their subsidy agreements were commenced.