May 11, 2020

Via Federal e-Rulemaking Portal

Samantha Deshommes

Chief, Regulatory Coordination Division

Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Ave.,

N.W. Washington, D.C. 20529

Re: Proposed Changes to Forms I-864, I-864A, I-864EZ

Docket ID USCIS–2007–0029

OMB Control Number 1615–0075

Dear Chief Deshommes,

Brooklyn Defender Services (“BDS”) submits these comments in opposition to the U.S. Citizenship and Immigration Services (“USCIS” or the “agency”) Proposed Rule on Agency Information Collection Activities; Revision of a Currently Approved Collection: Affidavit of Support Under Section 213A of the Act, USCIS-2007-0029, OMB Control Number 1615-0075. See 85 Fed. Reg. 20292.

BDS is a full-service public defender organization in Brooklyn, New York, that provides multi-disciplinary and client-centered criminal defense, family defense, immigration, and civil legal services, along with social work and advocacy support. BDS represents low-income people in nearly 30,000 criminal, family, civil, and immigration proceedings each year. Since 2009, BDS has counseled, advised, or represented more than 15,000 clients in immigration matters including deportation defense, affirmative applications, advice, and immigration consequence consultations in Brooklyn’s criminal court system. BDS’s immigration practice represents people in applications for immigration relief, adjustment of status, and naturalization before the United States Citizenship and Immigration Services (“USCIS”), and in removal proceedings in New York’s immigration courts. In addition, BDS is one of three New York Immigrant Family Unity Project (“NYIFUP”) providers and has represented more than 1,400 people in detained deportation proceedings since the inception of the program in 2013.

USCIS is proposing, among other things, that U.S. citizens and lawful permanent residents sponsoring their foreign spouse or relatives for adjustment of status to lawful permanent residents provide in-depth bank account information and have the forms notarized by a notary public. For the reasons set forth below, BDS opposes the proposed changes to Form I-864 and related Forms I-864A and Form I-864EZ as being unduly burdensome for the sponsor or household member and being in direct tension with federal law.

The Proposal to Require Detailed Bank Account Information Is Unnecessary and Unduly Invasive of the Sponsors Privacy

USCIS’s proposal to require detailed bank account information from the sponsor or household member is not necessary or relevant to demonstrate the proof of income requirements that the forms are intended to screen for. Requiring the sponsor’s bank account name, routing number, account number, account holder’s name, and other sensitive financial information casts a much wider net than what is necessary to show proof of income and is not even relevant to verifying income. The evidence that USCIS currently requires of a sponsor more precisely proves income, such as W-2 forms, tax returns and transcripts, paystubs, and letters of employment.

Furthermore, this proposal is in tension with federal statute. Pursuant to 8 U.S.C.§ 1183a(g)(6), certified copies of tax returns is the primary manner to show the ability to maintain a required income level. The statute allows for providing asset-related information for the intended purpose of being “flexible;” not as an additional burden where the sponsor’s tax returns would suffice under 8 U.S.C. § 1183a(g)(6).

In addition to being unnecessary and inconsistent with the statutory structure, requiring detailed bank information puts the sponsor’s information at risk for cybersecurity attacks and identity theft. As with all risk of harm, an ounce of prevention is worth a pound of cure: The burden of addressing identity and information stealing is great, and sponsors—who are both U.S. citizens and lawful permanent residents—deserve our government’s respect in not putting their identities and sensitive information at risk unnecessarily.

Lastly, adding voluminous bank records will cost the agency additional time to review. Specifically, it will require the USCIS officers reviewing adjustment of status applications to pore over a higher quantity of complex evidence, while not enhancing the quality of the information submitted. As stated above, income is easily and clearly demonstrated by W-2 forms, tax returns and transcripts, paystubs, and employer letters. Requiring additional, tangential information will further hamper an already overburdened and backlogged USCIS, and delay approval for those eligible for green cards.

Thus, the collection of this sensitive information poses additional burdens on sponsors without any added efficiency or efficacy in meeting the legal requirements, and USCIS has no legal authority to require this information from all U.S. citizens and lawful permanent residents sponsoring their foreign spouse or relatives for a green card.

The Proposed Notarization Requirement Is In Tension with Federal Law and Places Unnecessary Burdens on the Sponsor

The proposal to require the I-864, I-864A, and I-864EZ forms to contain a notarized signature is inconsistent with federal law. 28 U.S.C. section 1746 permits federal forms, including Form I-864 and related Form I-864A and Form I-864EZ, to be executed under penalty of perjury as an alternative to notarization. If USCIS does not modify the instructions for these forms to allow for the possibility of an unsworn declaration pursuant to 28 U.S.C. § 1746, rather than a notary, the proposed change would be in violation of the law. Congress has already determined that in federal and regulatory matters requiring a notary public, an unsworn declaration under penalty of perjury is an appropriate substitute. USCIS does not have the authority to require otherwise.

The notary requirement also imposes additional, unnecessary related costs, such as travel burdens, added fees, and logistical challenges on the sponsor/household member to have these forms notarized by a notary public. In particular, this requirement presents a public health risk in light of the stay-at-home orders imposed by local and state authorities, and social distancing protocols set forth by the Centers for Disease Control as a result of the COVID-19 pandemic severely impacting the United States and the world. Instituting this requirement would unnecessarily force sponsors and household members to put their health at risk, and ignores the limitations in accessing notaries at this time.

USCIS Is Not Properly Making the Proposed Changes Under the APA

The agency’s attempts to make the above mentioned proposed changes through the instant process of a form revision would violate the Administrative Procedure Act (“APA”)’s requirement that agencies like USCIS use appropriate procedures for rule making. See 5 U.S.C. § 553. Although USCIS states in the Notice that it is not changing the regulation governing the Affidavit of Support, see 85 Fed. Reg. at 20293, in fact, some or all of the proposed changes constitute new requirements for sponsorship. Should USCIS impose these new requirements without acknowledging the substantive nature of these changes or providing adequate reasons for them, USCIS would be violating the APA.

* * *

Accordingly, BDS opposes the proposed changes and urges the agency to reject them. None are statutorily required, some are ultra vires, and each imposes unnecessary burdens on U.S. citizen and permanent resident sponsors and householder members.

Sincerely,

/s/ Tracy J. Lawson

Tracy J. Lawson

Attorney-in-Charge, Youth & Communities Project

Sonia Marquez

Civil Rights Attorney – Immigration