Historically, the US government has been concerned that foreigners entering the United States may become a “public charge” dependent on governmental financial assistance after entering the country. For many applicants seeking entry into the United States, the government requires proof that the foreigner will be adequately financially supported once, and while in, the country. To some, it comes as a surprise there is an income threshold that must be met before the US government allows a foreign spouse to immigrate to the United States.
Since 1996, the government has required an Affidavit of Support, Form I-864, to be filed as part of family-based immigration cases. The form creates legal obligations on behalf of the person (not the foreigner) who signs the Affidavit of Support (called the “sponsor”) to:
• provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the federal poverty income level;
• reimburse any federal or state agency that provides a “means-tested benefit” (described below) to the sponsored alien;
• agree to submit to the jurisdiction of any federal or state court to enforce the Affidavit of Support; and
• inform USCIS of any change of address.
These obligations and other issues related to the Affidavit of Support are discussed later.
In timing, if the intending immigrant is in the United States, the Affidavit of Support is filed when the intending immigrant files for adjustment of status (Form 1-485). There is no separate filing fee for submitting the Affidavit of Support as part of the adjustment of status filing.
When the foreigner is outside the United States, the 1-130 approval gets routed through the National Visa Center (“NVC”), which will instruct the sponsor when and where to file the Affidavit of Support. The NVC reviews the I-864 only for completion, not to make the public charge determination (which is made by the consulate), and forwards the I-864 to the consulate where the foreigner will be interviewed. Here, the sponsor must pay an Affidavit of Support processing fee ($88) for each I-864 that is being submitted.
Who Must File an Affidavit of Support?
All petitioners seeking an immigrant visa/status based on marriage to a US citizen or LPR must submit an Affidavit of Support (the different Affidavit of Support requirements for K-1/K-3 visas are discussed in a later post). This is true even if another joint sponsor, discussed below, must submit an Affidavit of Support , to meet the poverty guidelines. There are only a few certain exceptions to this general rule.
The Affidavit of Support requirement does not apply to widows and widowers applying for immigrant status based on a prior marriage to US citizens.
The requirement also does not apply to battered spouses based on a relationship to a US citizen or LPR spouse who was the batterer.
In addition, foreigners who already have acquired forty “qualifying quarters” of work in the United States (generally ten years of work) need not have an Affidavit of Support filed on their behalf. “Qualifying quarters” is a term used to describe a unit counted toward Social Security benefits. Foreigners who would like to demonstrate being credited with forty qualifying quarters of work (through Social Security earning statements) need submit only a Form I-864w and include a copy of the wage earner’s Social Security earnings record.
Who Can Be a Sponsor?
A sponsor on the Affidavit of Support must be a US citizen or lawful permanent resident, eighteen years of age, and maintain a “domicile” in the United States or one of its territories. There are no exceptions to these requirements, which also apply to co-sponsors (described below). The term “domicile” has a particular legal meaning and is defined as the place where a sponsor has her or his principal residence intending to maintain that residence for the foreseeable future. Despite this definition, if someone is temporarily living abroad, he or she may still qualify to submit an Affidavit of Support. If such an issue exists, a consultation with qualified immigration counsel is recommended.
Importantly, the sponsor also must show enough financial ability to convince the government that the foreigner would be adequately supported while in the United States.
[contentblock id=1 img=html.png]