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NEW REQUIREMENTS FOR AFFIDAVITS OF
SUPPORT
(FORM I-864)
by Michael J. Gurfinkel, Esq.
New requirements for affidavits of support have
caused considerable amount of confusion, delays, and problems
for people seeking adjustment of status in the U.S., or visa processing
in Embassies abroad. In this article, I will discuss some of the
more common questions concerning the new affidavit of support
requirements.
1. When does the new Affidavit of Support law
become effective?
Beginning December 19, 1997, beneficiaries
of all family-based immigrant visa petitions and certain employment-based
petitions must submit the new affidavit of support form
(Form I-864), as part of adjustment of status or consular processing.
Check the bottom right corner of the Affidavit of Support form,
to make sure it says "Form I-864". If you submit the
old Form I-134 with your visa package after December 19,
1997, the INS or the Embassy may reject it. Use of the old form
will cause delay in processing of your case, because you would
have to fill out the new Affidavit of Support form and your interview
will be rescheduled.
2. What is the new Form I-864, Affidavit of Support?
The new affidavit of support is a binding contract
between the person who signs the affidavit of support (sponsor),
and the U.S. government. The sponsor agrees to provide financial
support to the person being petitioned (Beneficiary) as well as
the Beneficiary's accompanying family members. The sponsor must
have an income that is at least 125% of the income level listed
in the Federal Poverty Guidelines for the sponsor's particular
household size. If the Beneficiary starts receiving certain public
benefits from the U.S. government (i.e., beneficiary goes on welfare),
the sponsor further agrees to reimburse the U.S. governmental
agency that provided the public benefit. If the sponsor refuses
to reimburse the government, then the governmental agency may
sue the sponsor in court to recover the costs of the benefits.
3. Who needs an I-864 Affidavit of Support?
A. All family-based petitions, including:
1) U.S. Citizens who petitioned their:
- Parents
- Spouse
- Minor Children (under 21 years of age)
- Married and Unmarried Adult Sons and Daughters
(over 21 years of age)
- Brothers and sisters
2) Green Card holders (Immigrants) who petitioned
their:
- Spouses
- Unmarried Children (whether under or over 21 years
of age)
B. Employment-based petitions if:
The petitioning employer is a relative, or if the
relative has more than a 5% ownership interest in the company
petitioning the relative alien through Labor Certification
4. Who must complete the Affidavit of Support
(I-864)?
A. For Family petitions, the Petitioner
(the person who filed the petition), must submit an affidavit
of support, regardless of their income level or financial situation.
Even if they are retired, on SSI, or there will be a co/joint
sponsors, etc., the petitioner must still submit an affidavit
of support.
B. For Employment-Based petitions, an affidavit
of support is not always needed. But, if the petitioning employer
is a relative, or a relative has a 5% ownership interest in the
company, that relative must submit an affidavit of support.
5. For family petitions, what if the Petitioner
is old, retired, and/or not making enough money? Does the Petitioner
still have to submit an affidavit of support?
Yes. The petitioner must submit an affidavit of
support even though he is old, retired, or not making enough money.
If the petitioner does not have enough income or assets to meet
the requirements for the affidavit of support, then a "joint-sponsor"
could submit a separate affidavit of support. But, the petitioner
must submit an Affidavit of Support.
6. What are the requirements for a sponsor to
sign an affidavit of support?
The sponsor must meet the following requirements:
A. For family petitions, the sponsor must be the
petitioning relative.
B. A sponsor signing an affidavit of support must
be a person (as opposed to a corporation, organization, or other
entity).
C. The sponsor must be a U.S. citizen, or a lawful
permanent resident (green card holder).
D. Must be at least 18 years of age.
E. Must be "domiciled" (residing) in the
United States, or any U.S. territory or possession.
- Please note that a U.S. citizen or immigrant sponsor
who lives outside the U.S. and has not maintained a U.S. residence
may not be considered to be "domiciled" (or living)
in the U.S. and, therefore, not eligible to act as a sponsor.
So, if your U.S. citizen parent who petitioned you is now living
in the Philippines, there may be questions as to whether they
are eligible to submit an affidavit of support, because they may
not be "domiciled" in the U.S. If the petitioner is
not domiciled in the U.S., you could be refused a visa!
F. Must be able to demonstrate the ability to maintain
an income level of at least 125% of the applicable Federal Poverty
Guidelines for the sponsor's household size. (There is a chart
or table included in the affidavit of support package which will
show what 125% of the Federal Poverty Guidelines is for the particular
household size).
7. What is a "household size" for purposes
of determining a sponsor's income?
A sponsor's "household size" includes
(1) the sponsor, (2) all persons related to the sponsor by birth,
marriage, or adoption, living in the sponsor's residence; (3)
the sponsor's dependents; (4) any immigrants previously sponsored
by the sponsor pursuant to Form I-864; and (5) the intending immigrant
and the immigrant's immediate family who would be included in
the Consular processing (the beneficiaries of the petition under
consideration).
For example, if a U.S. citizen, who has no dependents,
petitions his married son, who has a wife and three children,
the "household size" would be 6 (the sponsor,
his married son, the married son's wife, and the son's three children).
A person would then look at the Poverty Guideline chart (which
is usually included in the documents from the Embassy or National
Visa Center) for a household size of "6". So, in the
above example, the sponsor must be earning 125% of the applicable
Federal Poverty Guidelines for the sponsor's household size of
6.
8. When can "joint sponsors" be used?
A joint sponsor is needed if the petitioner is unable
to meet the income requirement of 125% of the Poverty Guidelines.
The joint sponsor must submit a separate affidavit of support.
(If the petitioner meets the 125% income requirement, there need
not be a joint sponsor, unless a Consular or INS Officer specifically
requests it.)
Even if a joint sponsor submits an affidavit of
support, the petitioner must still submit an I-864, even
though he may be retired, unemployed, or receiving government
benefits. Each joint sponsor must meet the full minimum income
requirements for the household size, and all other requirements
for sponsorship (i.e. be a U.S. citizen or immigrant, over 18,
a natural person, domiciled in the U.S., etc.).
9. Can a petitioner and a joint sponsor combine
their income to meet the 125% Poverty Guideline income requirement?
No. Joint sponsors cannot combine their income with
the petitioner (or another joint sponsor), in order to meet the
income requirements. For example, if one joint sponsor has an
annual income of only $10,000, and the petitioner's annual income
is also $10,000, they cannot combine their income to comply with
the 125% Federal Poverty Guideline income requirement. Each
sponsor must meet the minimum income level or requirement
of 125% of the Poverty Line for the particular household size.
10. Can a petitioner include the income and assets
of his or her "household members" to meet the Poverty
Guideline income level?
Yes. In order to meet the 125% income requirement,
a petitioner may count his income and assets, as well as the
income and assets of his "household members". (Household
members include (1) all persons related to the sponsor by birth,
marriage, or adoption, and living with the sponsor for at least
six months before the sponsor signs the Affidavit of Support;
(2) the sponsor's dependents; and (3) the intending immigrants.)
As long as the household members are included in the same affidavit
of support, and have signed Form I-864A, their assets may be combined
with that of the Petitioner to meet the 125% Poverty Guideline.
This is because they are considered "household members",
not "joint sponsors". In other words, while the
Petitioner can combine income with household members,
he cannot combine income with joint sponsors, in
order to meet the Poverty Guidelines.
For example, if a U.S. citizen petitions his son
or daughter, and the U.S. citizen is living with his other children,
under the same roof, the other children would be
considered part of the petitioner's "household," and
their income and assets could be taken into account (or combined
the Petitioner's income) in meeting the 125% Federal Poverty Guideline.
However, anyone outside the household would be considered
a "joint sponsor", and must submit a separate
affidavit of support. Therefore, while the petitioner and the
petitioner's household can combine income and assets, the petitioner
and a joint sponsor cannot combine income and assets.
11. If a joint sponsor submits a separate Affidavit
of Support, can the joint sponsor include the income of his own
household members along with his own income to meet the 125% Poverty
Guideline?
Yes. If a joint sponsor is required, the joint sponsor
may include the income and assets of his/her own "household"
members to meet the 125% income requirements of the Poverty Guidelines.
So, the Petitioner can "pool" or combine the assets
of his household, and the joint sponsor can "pool" or
combine the assets of his own household members, in connection
with meeting the Poverty Guidelines.
12. How long is a sponsor obligated under the
I-864 Affidavit of Support?
A sponsor's obligation to the U.S. government continues
until the Beneficiary becomes a U.S. citizen, or has worked approximately
10 years, or ceases to be a lawful permanent resident, or leaves
the U.S., or dies.
13. How may a sponsor prove that he has the required
income level?
The sponsor must provide evidence of the sponsor's
income or assets, the assets of the Beneficiary, or the income
or assets of a joint sponsor. The sponsor must also provide evidence
of current employment, or self-employment, such as certification
from the sponsor's employer, on company letterhead, listing dates
of employment, work performed, and salary or wages paid; current
payroll receipts; or other verifiable evidence of the sponsor's
income. If a sponsor is unemployed, the sponsor will need to demonstrate
ongoing income through other means, such as retirement benefits,
or income of other household members.
In addition, the sponsor (and/or other household
members and/or joint sponsors) must also include all U.S. Federal
Tax returns and W-2's for the three previous years. For
purposes of demonstrating the means or ability to maintain the
required income level, the total unadjusted income (before deductions)
on an income tax return will be used to determine the income amount.
14. What if a sponsor is not able to provide
tax returns for the past 3 years?
If a sponsor cannot provide three years of Federal
Income Tax returns, the sponsor must provide a valid explanation
of why he cannot do so. If tax returns should have been filed,
but the sponsor failed to do so, the affidavit of support will
not be considered sufficient until the sponsor has filed those
un-filed tax returns, and supplies the appropriate copies of the
tax returns with the Form-I-864. In other words, the failure to
file a tax return does not excuse the sponsor from the requirement
of submitting a tax return.
15. What if the sponsor claims to have under-reported
his income?
If the declared income on the sponsor's tax return
does not meet the 125% income requirement, but the sponsor claims
to have under-reported his income, the sponsor will have to file
an amended tax return with the Internal Revenue Service
in order for the affidavit to be considered sufficient.
16. What are "means-tested public benefits"?
Under the new law, the sponsor must reimburse certain
government agencies if the beneficiary obtains "Federal means-tested
public benefits". These benefits include, to date: food stamps,
Medicaid, Supplemental Security Income (SSI), and Temporary Assistance
for Needy Families (TANF).
The following federal and state programs are not
included as means-tested benefits: Emergency Medicaid; short-term,
non-cash emergency relief; services provided under the National
School Lunch and Child Nutrition Acts; immunization and testing
and treatment for diseases; student assistance under the Higher
Education Act and the Public Health Service Act; certain forms
of foster care or adoption assistance under the Social Security
Act; Headstart programs; means-tested programs under the Elementary
and Secondary Education Act; and Job Training Partnership Act
programs.
17. What happens if the sponsor is receiving
means-tested public benefits such as SSI (i.e. a parent has petitioned
a son or daughter, but the parent is receiving SSI)?
The sponsor's receipt of public-means tested
benefits (such as SSI) within the past three years would certainly
have a bearing on the sponsor's ability to provide the requisite
level of support to the sponsored alien(s). However, according
to a State Department cable, "there is no provision in
the law under which the receipt of means-tested benefits by a
sponsor or a sponsor's household members, in and of itself, would
result in a finding of 212(a)(4), otherwise known as "public
charge". In other words, according to the State Department,
a petitioner's receipt of SSI benefits would not automatically
result in a "public charge" denial of a visa. A Consul
can still consider the income of a sponsor's "household",
or income and assets of a "joint sponsor", to determine
if 125% of the Poverty Guideline has been met.
18. What if a sponsor's income does not meet
the Poverty Guideline requirements?
If a sponsor's "income" does not
meet the Poverty Guideline requirements for the household size
(based on income from wages or other sources), the sponsor may
show evidence of "assets" the sponsor owns. Evidence
of assets should be attached to the I-864 Affidavit of Support,
establishing the location, ownership, and value of each of the
assets, including all liens and liabilities for the assets. Assets
must be capable of being converted to cash within one year.
Evidence of assets include, but is not limited to:
- Bank statements for the last 12 months, or a statement
from a bank officer, including deposit-withdrawal history for
the last 12 months, and current balance;
- Evidence of ownership and value of stocks, bonds,
and certificates of deposit, and dates acquired;
- Evidence of ownership and value of other personal
property, and dates acquired;
- Evidence of ownership and value of any real estate
and dates acquired.
In other words, if a sponsor is not working, and,
therefore, does not have "income", but he owns
real property, personal property of considerable value, stocks,
bonds, etc., the sponsor could still meet the Poverty Guideline
requirements.
19. Does a sponsor submit only one affidavit
of support with his petition?
No. A sponsor (or joint sponsor) must submit an
affidavit of support for each person being processed (i.e.,
the principal beneficiary, and each derivative beneficiary, such
as spouse and minor children). Therefore, if a U.S. citizen is
petitioning his married son, the married son's wife, and three
children, there would be five affidavits of support. However,
the petitioner can submit one original I-864, and photocopies
of the I-864 Affidavit of Support may be submitted for the derivative
or accompanying dependents. However, each photocopy must bear
an original, notarized signature.
20. Does a joint sponsor have to be a relative
of the person being petitioned?
No. There is no requirement or limitation on who
may act as a joint sponsor, as long as each of the joint sponsors
meets the basic requirements for acting as a sponsor (i.e. must
be a citizen or immigrant, 18 years of age, domiciled in the U.S.,
maintains an annual income equal to at least 125% of the Federal
Poverty Line., etc.) Any joint sponsor, regardless of the relationship
of the joint sponsor to the applicant, would comply with the law.
However, while it is not a requirement for a joint sponsor
to be a relative by blood or marriage to the applicant, in most
cases, it would seem logical that a relative or friend of the
family would be more strongly motivated to fulfill the obligations
of the I-864 affidavit of support, than an individual who is unknown
to the petitioner or the beneficiary. In other words, it is better
that a very close friend or a blood relative act as a joint sponsor,
than a stranger.
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