Affidavit of Support Information for 2004

By Allen E. Kaye

What is an Affidavit of Support?
If you are bringing a relative to live permanently in the United States, you must accept legal responsibility for financially supporting this family member. You accept this responsibility and become your relative's sponsor by completing and signing a document called an affidavit of support. This legally enforceable responsibility lasts until your relative becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years.)

For Whom is an Affidavit of Support Required?
You must complete and submit an affidavit of support, USCIS Form I-864, if you are bringing a relative to the United States. (This means that you filed or are filing a USCIS Form I-130, Petition for Alien Relative or USCIS Form I-600, Petition to Classify Orphan as Immediate Relative. An affidavit of support, USCIS Form I-864, is required for all immediate relatives of U.S. citizens (which include parents, spouses, and unmarried children under the age of 21, including orphans) and relatives who qualify for immigration to the United States under one of the family-based preferences:

• First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
  
  
• Second Preference: Spouses of lawful permanent residents and the unmarried sons and daughters (regardless of age) of lawful permanent residents and their unmarried children.
  
  
• Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children.
  
  
• Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children.

You must also complete an affidavit of support if you are a U.S. citizen or lawful permanent resident and filed an employment-based immigration petition (USCIS Form I-140) for a relative or if you have a significant ownership interest (5 percent or more) in a business that filed an employment-based immigrant petition for your relative.

Persons whom the USCIS has approved as self-petitioning widows or widowers or battered spouses and children are exempt from this requirement. (These individuals file a USCIS Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. Relatives who enter as refugees or asylees also do not require affidavits of support.

All relatives for whom you file a separate I-130 or I-140 (in certain cases) petition must have an original affidavit of support and accompanying documentation. You may submit photocopies of the affidavit of support you complete for your relative for any spouse or children immigrating with your relative and listed on the petition. You do not need to photocopy the accompanying documentation for these family members.

Other types of aliens, including parolees, students, and diversity immigrants are not sponsored using Form I-864. A different affidavit of support (USCIS Form I-134) is used for these aliens if an immigration or consular officer requires it.

When do I file a Form I-864 if my fiance(e), spouse, or child is a K- nonimmigrant?
If your relative is either a K-1 fiancé(e), a K-3 spouse, or a K-2 or K-4 child of fiancé(e) or spouse, you do not need to submit a Form I-864 at the time you file your Form I-129F petition. Instead, you should submit a Form I-864 at the time that your fiancé(e) , spouse, or child adjusts status to permanent resident after coming to the United States.

Are there any exceptions to the sponsorship requirements?
There is no need to submit a Form I-864 if the intending immigrant can show EITHER that the intending immigrant has already worked, or can be credited with, 40 qualifying quarters as defined in title II of the Social Security Act OR that the intending immigrant is the child of a citizen and that the intending immigrant, if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under 320 of the Immigration and Nationality Act, as amended by the Child Citizenship Act of 2000. For more specific information about these exceptions, please see the May 2001 section of the New USCIS Policy and Procedural Memoranda.

It is important to note that, in calculating the qualifying quarters that may be credited to an intending immigrant, the intending immigrant may not count any qualifying quarters worked during any period after December 31, 1996, in which the person who claims to have worked the qualifying quarters received a Federal means-tested public benefit.

Where Can I Find the Law?
The Immigration and Nationality Act is a law that governs the admission of all immigrants to the United States. For the part of the law concerning affidavits of support, please see INA § 212(a)(4) and 213A. The provisions are codified in Title 8, United States Code, as sections 1182(a)(4) and 1183a. The specific requirements for affidavits of support can be found in Title 8 of the Code of Federal Regulations (CFR) at 8 CFR part 213a.

Who is Required to Be a Sponsor?
If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a lawful permanent resident. You must have a domicile in the United States or a territory or possession of the United States. Usually, this requirement means you must actually live in the United States, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, so that you still have your domicile in the United States.

Can anyone else be a sponsor?
INA section 213A permits both a "joint sponsor" and a "substitute sponsor" in certain cases.

Who can be a joint sponsor, and when is a joint sponsor allowed?
If the visa petitioner's household income is not sufficient to meet the requirements of INA section 213A and 8 C.F.R. Section 213a, INA section 213A permits a joint sponsor to sign an affidavit of support, in addition to the affidavit of support signed by the visa petitioner. A joint sponsor is someone who is willing to accept legal responsibility for supporting your family member with you. A joint sponsor must meet all the same requirements as you, except the joint sponsor does not need to be related to the immigrant. The joint sponsor (or the joint sponsor and his or her household) must reach the 125 percent income requirement alone. You cannot combine your income with that of a joint sponsor to meet the income requirement.

How can I reinstate a visa petition that was revoked by the death of the original petitioner?
Typically, when the visa petitioner dies, the approved I-130 originally filed by the visa petitioner is automatically revoked. However, following the passage of the Family Sponsor Immigration Act, P.L. 107-150, beneficiaries of these petitions may file for reinstatement so long as they can provide an I-864 Affidavit of Support filed by a substitute sponsor.

In order to seek reinstatement of the visa petition, you must submit a statement to the USCIS office where the original visa petition was filed formally requesting reinstatement of the visa petition. The statement should list reasons why your case warrants reinstatement, such as your ties to the United States, or hardship that would occur to you if the request for reinstatement were not granted.

You must also include with your reinstatement request a Form I-864 Affidavit of Support completed by a substitute sponsor.. A substitute sponsor must be a citizen or national, or an alien lawfully admitted for permanent residence, at least 18 years of age, and resident in the United States. A substitute sponsor must also be related to you as one of the following: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild. This substitute sponsor is filing the I-864 in place of the deceased petitioner, and must meet all of the financial requirements of a sponsor pursuant to INA 213A.

With your reinstatement request you must provide documentary evidence of the death of the original petitioner, plus documentation of the relationship between you and the substitute sponsor. Finally, include a copy of your approved I-130, if available.

What is a substitute sponsor and how can I be one?
A substitute sponsor is a sponsor who files an I-864 Affidavit of Support in place of a visa petitioner who has died. In order to be a substitute sponsor, you must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild. You must also be a U.S. citizen or national or an alien lawfully admitted for permanent residence, be at least 18 years of age, domiciled in the United States, and meet all of the financial requirements of a sponsor pursuant to INA 213A.

Should the request for reinstatement be approved, and the intending immigrant ultimately obtains permanent residence in the United States, you will assume all of the obligations of a I-864 sponsor.

In order to be a substitute sponsor, complete Form I-864 and submit it to the USCIS office where the revoked visa petition (Form I-130) was originally filed, along with a statement from the intending immigrant formally requesting reinstatement and evidence that you are related to the intending immigrant in one of the ways listed above.

How Do I File an Affidavit of Support?
You should complete an I-864 Affidavit of Support when your relative has been scheduled for an immigrant visa interview with a consular officer overseas or when your relative is about to submit an application for adjustment to permanent resident status with the USCIS or with an Immigration Court in the United States. If you have a joint sponsor, the joint sponsor must also complete USCIS Form I-864 at this time. If you are using the income of other household members to qualify, then each household member who is accepting legal responsibility for supporting your relative must complete a separate USCIS Form I-864A, Contract Between Sponsor and Household Member.

The USCIS Forms I-864 and I-864A include instructions and a checklist for the supporting documents that you must include with the affidavit of support. It is important that you read the instructions carefully and submit all required documentation. Forms are available by download, or by calling 1-800-870-3676.

You are required to provide U.S. Federal income tax returns for the three most recent tax years as well as proof of current employment. If you were not required to file a tax return in any of these years you must provide an explanation. Failure to provide the tax returns or evidence establishing that you were not required to file will delay action on your relative's application for permanent residence and, if not provided, will result in denial of an immigrant visa or adjustment of status.

When you have completed the affidavit of support, compiled the necessary documentation, and had the affidavit notarized in the United States or before a U.S. consular or immigration officer, you should provide this packet of information to your relative to submit with his or her application for permanent resident status. If you are given specific instructions to file your affidavit of support directly with the National Visa Center, you should follow those instructions.

What are the income requirements for an Affidavit of Support?
You also must meet certain income requirements (whether you are a sponsor, a joint sponsor, or a substitute sponsor). You must show that your household income is equal to or higher than 125 percent of the U.S. poverty level for your household size (See table below.) Your household size includes you, your dependents, any relatives living with you, and the immigrants you are sponsoring. For example, if you have a spouse and two children and you want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125 percent of the U.S. poverty level for a family of six, or $31,512, from the table below. You must also include in your household size any immigrants you have previously sponsored under this part of the law. In the above example, if you had previously sponsored your parents and your sister, your household size would be nine persons and you would need a household income of $43,387 ($39,462 + $3,925).

If you, the sponsor, are on active duty in the Armed Forces of the United States, and the immigrant you are sponsoring is your spouse or child, your income only needs to equal 100 percent of the U.S. poverty level for your family size.

2004 POVERTY GUIDELINES*
Minimum Income Requirement for Use in Completing Form I-864 ?

For the 48 Contiguous States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and Guam:
Sponsor's Household Size	100% Poverty Line	125% Poverty Line
2	12,490	15,612
3	15,670	19,587
4	18,850	23,562
5	22,030	27,537
6	25,210	31,512
7	28,390	35,487
8	31,570	39,462
	Add $3,140 for each additional person	Add $3,925 for each additional person

These poverty guidelines remain in effect for use with the Form I-864 Affidavit of Support from April 1, 2004, until new poverty guidelines go into effect in the Spring of 2005.

If you cannot meet the minimum income requirements using your earned income, you have various options:

• You may add the cash value of your assets such as money in savings accounts, stocks, bonds, and property. To determine the amount of assets required to qualify, subtract your household income from the minimum income requirement (125 percent of the poverty level for your family size). You must prove the cash value of your assets is worth five times this difference (the amount left over).

Example for a household size of 4:

 

125 percent of 2004 poverty guideline	$23,563
sponsor's income	$19,500
Difference	$4,063
Multiply by 5	x 5
Minimum Required Cash Value of Assets	$20,315

You may count the income and assets of members of your household who are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member. If the relative you are sponsoring meets these criteria you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

• You may count the assets of the relatives you are sponsoring.

What are My Responsibilities as a Sponsor?
When you sign the Affidavit of Support, you accept legal responsibility for financially supporting the sponsored immigrant(s) until they become U.S. citizens or can be credited with 40 quarters of work. Any joint sponsors or household members whose income is used to meet the minimum income requirements are also legally responsible for financially supporting the sponsored immigrant. If the immigrant receives any "means-tested public benefits," you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. When in doubt, ask the benefit provider whether the benefit is a "means-tested public benefit."

Currently, Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits.

The following types of programs are not counted as means-tested public benefits: emergency Medicaid; short-term, non-cash emergency relief; services provided under the National School Lunch and Child Nutrition Acts; immunizations and testing and treatment for communicable 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; Head Start programs; means-tested programs under the Elementary and Secondary Education Act; and Job Training Partnership Act programs.

What if my address changes?
If you change your address after you become a sponsor, you are required by law to notify the USCIS within 30 days by filing USCIS Form I-865, Sponsor's Notice of Change of Address. If you fail to notify the USCIS of your change of address, you may be fined.