40 Quarters of Social Security Credits in Lieu of form I-864

Subject: Immigrant Visa Petitions – 40 Quarters SSA in Lieu of I-864

1. On May 17, 2001, INS issued a memo to the office of field operations addressing the 40 quarters question; E.G. the substitution of SSA coverage for the I-864 Affidavit of Support. The following is intended to serve as guidance to posts based on the INS memo.

2. The memo applies to aliens seeking permanent residence as immediate relatives or as family preference immigrants as well as to employment-based immigrants where a relative either filed the form I-140 or has a significant ownership interest in the firm that did file the form I-140.

3. The INS memo notes that, under INA section 213(A)(A)(3)(A), the requirement for visa petitioners to provide the I-864 Affidavit of Support terminates once the sponsored alien has worked, or can be credited with, 40 qualifying quarters of coverage under Title II of the Social Security Act. This section corresponds to 8 C.F.R. Part 213(A)(2)(E)(1)(I)(B), which states that the sponsors support obligation with respect to a sponsored immigrant terminates by operation of law when the sponsored immigrant has worked, or can be credited with, 40 qualifying quarters or work; provided, that the sponsored immigrant is not credited with any quarter beginning after December 31, 1996, during which the sponsored immigrant receives any federal means-tested public benefit.

4. INS then addresses the issue of whether the I-864 is still required if the sponsored alien has already worked, or can be credited with, the 40 qualifying quarters of coverage. The INS conclusion, as stated in the memo, is that the I-864 is not required in such cases.

5. INA Section 213 (A)(A)(3)(B) notes that, in determining the number of quarters, the alien shall be credited with (I) all of the qualifying quarters of coverage as defined under Title II of the social security act worked by a parent of such alien while the alien was under age 18, and (II) all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased. (Note: Title II of the social security act refers to federal old age, survivors, and disability insurance benefits.)

6. The INS memo clarifies that the statute does not require the parent-child relationship to have existed when the parent worked the 40 quarters. For example, an alien can claim even those quarters that the parent worked prior to the alien’s birth or adoption. In the case where the alien claims quarters worked by a spouse, however, the alien may only be credited for those hours worked during the marriage.

7. Accordingly, consular posts abroad processing petitions for aliens seeking permanent residence should waive the I-864 requirement if the alien can demonstrate 40 quarters of work under the social security act as described in this cable.

8. The term quarter means the three-calendar-month period ending on March 31, June 31, September 30, or December 31 of any year. Quarters of coverage are obtained by working at a job or as a self-employed individual, earning a specified minimum income, and making social security payments on it. Quarters are calculated based on the amount of income earned during the course of the year, rather than actual number of days worked within a given quarter. For example, the requisite minimum income for 2001 is USD 830 per quarter. Thus any individual earning three times this amount during the calendar year would be credited with three quarters of coverage, even if the individual actually worked for only one month.

9. Any individual seeking to demonstrate the amount of quarters of coverage he or she earned may request at any SSA office a certified earning record, which shows the amount of qualifying quarters he or she has accrued.

10. In processing an immigrant visa for a beneficiary seeking to benefit from SSA quarters, consular posts should request a copy of the certified earnings statement, as well as a signed statement from the person who earned the quarters containing the following language I (Name) certify under penalty of perjury under the laws of the United States that I did not receive any federal means tested benefit, such as temporary assistance for needy families, food stamps, Medicaid, Social Security insurance, or State Child insurance, during any of the quarters I am using to qualify that were earned after December 31, 1996.

(Note: If the quarters being used occurred prior to December 31, 1996, Consular Posts do not need to require this signed statement.)

11. Consular Posts should include copies of these documents in the beneficiaries immigrant visa packages. Alternately, posts may document the I-864 exemption by including an official statement in the package to the effect that no I-864 is required, as 40 quarters of SSA coverage have been established, pursuant to the May 17, 2001 INS Memorandum from Michael Cronin.

12. The National Visa Center performs a clerical review of documents, including affidavits of support, for certain consular posts. In those instances where the petitioner or sponsor notifies the NVC that they wish to use the SSA quarters provision, the NVC will require submission of the certified earnings record and the signed statement described in paragraph 10 before qualifying the case for forwarding to post. If the petitioner and sponsor do not indicate they intend to use the SSA quarters provision, NVC will continue to require the I-864 and supporting documents, including three years tax returns and W-2S, and proof of employment.

13. The following are examples of sponsored aliens who would benefit from the 40 quarters policy:
a. An alien who came to the United States as a student on an F-1 visa and, while working legally, acquired 16 quarters of SSA coverage, followed by 20 quarters of SSA coverage while working on an H-1B visa (alien in specialty occupation profession), eventually followed by 4 quarters coverage while working as an intra-company transferee on an L-1 visa.
b. An alien who entered the United States on an O-1 visa (alien with extraordinary ability in sciences, arts, education, business, or athletics), along with a spouse who also held an O-1 visa, both of whom worked for five years, earning a total of 40 quarters SSA coverage between them.
c. An alien who entered the United States on an H-2A Temporary Agricultural Worker visa and worked legally for five years, followed by two years work out of status, followed by one year of legal work under temporary protected status, followed by two more years work out of status, making regular social security payments even during those periods of unauthorized work.
d. A four-year old alien just adopted by a U.S. citizen parent who has worked and made social security payments for ten or more years in the U.S.

14. CA/VO reminds interviewing officers that 9 FAM 40.41 directs them to consider the totality of the alien’s circumstances in determining whether an immigrant visa applicant is likely to become a public charge. Thus, even if an applicant has a valid I-864 or proof of the 40 quarters of SSA coverage, the interviewing officer should bear in mind the big picture and consider any other relevant facts that would indicate the applicant’s likelihood of becoming dependent on the U.S. government for subsistence.

15. The full text of the INS memo may be found at: www.INS.USDOJ.gov/graphics/lawsregs/handbook/AFDsuptcca.pdf.

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