This article is revision of an article I co-authored with Joy Athanasiou for an America Immigration Lawyer Association Annual Conference. This article is has been rewritten for non-attorneys and as such I have taken out a number of the citations and condensed down the materials.
The reason for the law creating the Form I-864, Affidavit of Support was to provide a standard, enforceable basis for determining the public charge ground of inadmissibility. The current I-864 form must be submitted for nearly all intending immigrants applying based upon marriage.
An Affidavit of Support, that shows the required income or assets, will, normally be sufficient. . The immigration officer, however, still has discretion to make a finding that the applicant is likely to become a public charge if specific facts this finding. Such a finding may be based on the intending immigrant’s age, health, family status, assets, resources and financial status, education and skills.
When is the Affidavit of Support required?
INA §212(a)(4) sets forth when the Affidavit of Support is required. By law, the following intending immigrants must submit a Form I-864 completed by the petitioner (generally, the same petitioner who filed the I-130):
- All immediate relatives of U.S. citizens (spouses, unmarried children under age 21, and parents of U.S. citizens age 21 and older). Please note the exception below for children;
- All family-based preference immigrants (unmarried sons and daughters of U.S. citizens, spouses and unmarried sons and daughters of permanent resident aliens, married sons and daughters of U.S. citizens, and brothers and sisters of U.S. citizens age 21 and older);and
- Employment-based preference immigrants, but only when a U.S. citizen or lawful permanent resident relative filed the employment-based immigrant visa petition or such relative has a significant ownership interest (five percent or more) in the entity that filed the petition.
In the following situations, intending immigrants will not require an Affidavit of Support and should submit Form I-864W instead:
- If the visa applicant can be credited with at least 40 quarters of income under the social security regulations.
- Special Immigrants.
- Children of USC may file Form I-864W if:
- the child will qualify for automatic citizenship upon entry,
- the child was adopted abroad under IR-3 category, or
- the child was born abroad during a temporary absence of his or her LPR parent,
• Self-Petitioners (widowers, VAWA self-petitioners, certain family members under the Patriot Act)
• Diversity Lottery Immigrants
• Registry Applicants
• Refugees and Asylees
Income is defined as adjusted gross income for the sponsor/joint sponsor who filed a 1040EZ, line 22 on IRS Form 1040, and line 15 on Form 1040A or the corresponding line on any revised IRS form. Only a U.S. federal income tax form can be used. The Affidavit of Support sponsor must earn 125 percent of the federal poverty guidelines for the number of individuals in the household, except for active duty military petitioners
Household income may only include the income of an intending immigrant if the intending immigrant is either the sponsor’s spouse or has the same principal residence as the sponsor; and the income earned by the intending immigrant may only counted if earned through lawful employment. If the income was earned in the United States, the intending immigrant must have been authorized to work, or if it was earned overseas, the intending immigrant will have to show that the overseas income will continue after the intending immigrant obtains permanent resident status. Prospective employment that has not yet begun will not be counted as income.
When a sponsor must rely on assets, the general rule is that the value of the assets must be five times the difference between the sponsor’s income and the required income for the current year. Thus, if the sponsor’s income is $5,000 short of the requirement, he or she must show assets worth $25,000 to make up for the shortfall. This amount has now been reduced in two situations:
- First, where the adjustment applicant is the spouse or child of a U.S. citizen, the assets need only equal three times the shortfall.
- Second, where the adjustment applicant is an orphan immigrating for adoption, the parent’s assets only need to equal or exceed any shortfall between their income and the required income.
Under the current rules, all sponsors must submit either a photocopy of their most recent federal tax return (plus any forms W-2 or 1099) or an Internal Revenue Service-issued transcript of those returns. If the sponsor submits a transcript, it is not necessary to include the W-2 forms. USCIS should not request further documentation at the time of the interview, except when the most recent tax return, the anticipated household income for the year the form was signed, and the income evidence for the year of filing all show income less than 125 percent of the poverty guidelines—unless a year or more has passed since affidavit filing and USCIS has reason to believe that the sponsor’s income has been reduced and is no longer sufficient.
Legal Obligation of the Sponsor
The sponsor/joint sponsor agrees by contract to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the federal poverty line during the period in which the affidavit is enforceable. The sponsor’s obligation is legally enforceable against the sponsor by the sponsored alien, the federal government, any state (or any political subdivision of such state) or by any other entity that provides any means-tested public benefit.
The sponsor shall notify the attorney general and the state in which the sponsored alien is currently a resident within 30 days of any change of address of the sponsor during the period in which an affidavit of support is enforceable.
Most of the Affidavit of Support requirements are spelled out in the Immigration and Nationality Act and Code of Federal Regulations. However, like everything else in immigration law, numerous exceptions and special cases exist