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A Beginner’s Guide to the Affidavit of Support

 
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Updated: August 22, 2017

The Affidavit of Support (I-864) is required of all persons who sponsor family members for immigration to the United States. To access the US Citizenship and Immigration Services Forms page, where you can download the 47 pages of the I-864/865 package of forms and instructions, click here. The I-864 is also required in some employment-based cases where the alien’s relative filed the immigrant visa petition or where the relative has a significant ownership interest in the entity that filed the petition. There are certain exceptions to this filing requirement, and these will be discussed below.

This article is directed primarily to US citizens or lawful permanent residents residing here in the UK or elsewhere outside the United States, who wish to sponsor their relatives for immigrant visas. We therefore do not discuss the slightly different procedural issues involved in sponsoring for adjustment of status to lawful permanent residence an alien in the United States.

Obligations Undertaken in the Affidavit

In order to file an Affidavit of Support the person who filed the immigrant visa petition (‘the sponsor’) must be (1) a US citizen or lawful permanent resident, (2) at least 18 years of age, and (3) domiciled in the United States, its territories or possessions. In the Affidavit the sponsor must demonstrate that he or she has the financial means to support the sponsored alien so that the alien does not become a public charge after being admitted to the United States as an immigrant.

To this end, the sponsor must demonstrate enough income and/or assets to maintain the alien, his or her immigrating family members, and the sponsor’s own household members, at 125 percent of the federal poverty guidelines for the size of the household. The poverty guidelines are updated every year and are published on the website of the US Department of Homeland Security as Form I-864P. Sponsors who are on active duty in the US Armed Forces and who are filing an I-864 for a spouse or child need demonstrate this support ability only to the level of 100 percent of those guidelines. If a sponsor cannot demonstrate sufficient income, a joint sponsor may be obtained (see below) but this does not relieve the primary sponsor from the obligation to file the Affidavit.

The Affidavit is also a legally-enforceable promise to the effect that if the alien receives any means-tested public benefit from any federal, state, or local agency or private entity the sponsor will reimburse that entity for the benefits provided. The alien sponsored may also enforce this obligation and sue on it in the same fashion as any other contract. Sponsors are also required to keep the USCIS advised of their address for the duration of the support obligation, and to notify the USCIS of any changes in address within 30 days.

These obligations continue until the sponsor dies or the alien either (1) becomes a US citizen, (2) earns or can be credited with earning 40 qualifying quarters of coverage as defined by the Social Security Administration, (3) obtains in a removal proceeding a new grant of adjustment of status as relief from removal, (4) ceases to be a lawful permanent resident and leaves the United States, or (5) dies. Divorce of the sponsor and alien does not terminate this obligation.

Exceptions to Filing Requirement

As stated above, some applicants for family-based immigrant visas do not require an I-864. One example is a child of a US citizen who will, upon entry to the US on his or her immigrant visa, automatically become a US citizen pursuant to the Child Citizenship Act of 2000. For further information on the situations in which this can occur, please see our website article on the subject of US citizenship. Other examples of persons who will not need an I-864 include an immigrant who has earned, or can be credited with earning, the required 40 quarters of Social Security coverage, or self-petitioning immigrants such as widows, widowers, and battered spouses and children. Such persons must file the I-864W rather than the I-864.

Requirements for Sponsors and Joint Sponsors

As set out above, in order to file an Affidavit of Support a person must be (1) a US citizen or lawful permanent resident, (2) at least 18 years of age, and (3) domiciled in the United States, its territories or possessions.    For additional information on the domicile requirement, please go to our article I-864 Affidavits of Support:  The Problem of Domicile

A sponsor must attach to the I-864 his or her US federal tax return for the most recent tax year, and must list on the Affidavit his or her income for the two tax years before that, as declared on the sponsor’s federal tax returns for the years in question. The USCIS defines ‘income’ in this context as ‘total income… for purposes of the individual’s Federal income tax liability.’ The tax return attached must be either a photocopy of the actual return as filed with the Internal Revenue Service (‘IRS’), including all forms, schedules, and other attachments to the return, or an IRS-prepared transcript of that return. Instructions on how to obtain a photocopy of one’s tax return for a fee, or a transcript of the return free of charge, can be found on the relevant page of the IRS website.

Instead of the I-864, a sponsor may file a shorter version, the I-864EZ, if there is only one alien being sponsored on the immigrant petition and the sponsor is relying solely upon his or her own salary or pension as shown on one or more Forms W-2 provided by the employer(s) or former employer(s).

Problem Areas in the Affidavit of Support

Whose Income Counts?
The sponsor’s ability to meet the income requirement is determined by the sponsor’s ‘reasonably expected household income.’ In establishing the income of the ‘household,’ the sponsor may either rely solely upon his or her own income, or may include income from household members over 18 years old, including in some cases the income of the alien being sponsored. In most cases the household member must complete a Form I-864A if his or her income will be relied upon.
No US Tax Return?
US law requires most US citizens and lawful permanent resident aliens to file a federal tax return every year, subject to income thresholds. If the sponsor completing the I-864 did not file a tax return for the previous year (for example, because he or she had income below the threshold amount), evidence to support the claim that no return was necessary must be submitted with the I-864. If, upon examination, it is determined that the sponsor should have filed a return, the return must be filed and a copy provided to the consular officer before the immigrant visa will be issued.
Sponsor’s Income Too Low?
If a sponsor is unable to show ‘reasonably expected household income’ sufficient to clear the hurdle of 125% of the poverty guidelines for the appropriate household size, he or she may attempt to qualify based upon the value of ‘significant assets’ owned. The sponsor must submit evidence of ownership by either the sponsor and/or the sponsored alien of ‘significant assets,’ in an amount five times the difference between the household’s income and the applicable federal poverty level for the size of the household. If the alien being sponsored is the spouse or child of the US citizen, this amount drops to three times the difference.
Income and Assets Still Not Enough?
If the sponsor and household cannot qualify based on either income or assets, a joint sponsor must be found. The joint sponsor must file a separate I-864 and will then be jointly and severally liable with the sponsor for all the obligations created by the I-864, including the change of address reporting requirement.

Conclusion

We hope that this article has been of interest and assistance, but it cannot possibly cover all permutations of the law and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.

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