Complex Issues Involving The I-864 Affidavit of Support
The I-864 Affidavit of Support form is filed with either the Department of State or the USCIS to prove that the applying immigrant (or sponsored relative) has enough financial support to live without the concern of becoming a public charge, or reliant on the U.S. Government’s welfare. The I-864 affidavit is a very complex form that imposes significant long-standing liabilities on the financial sponsor. It is very important for any financial sponsor to be aware of these liabilities prior to signing and submitting the I-864 affidavit.
Generally speaking, the I-864 is required in most family based petitions. It is only required in the employment-sponsored cases when a relative files the I-140 petition or has “significant ownership interest” in the sponsoring company.
In determining whether or not the sponsored relative has enough financial support, the government reviews the financial sponsor’s income, and if necessary their assets to determine if they have income and/or financial assets that equal at least 125% of the poverty guidelines. If the I-130 petitioner is on active military duty he or she is only required to meet 100% of the poverty guidelines. In considering whether the financial sponsor has sufficient income for purposes of the I-864 affidavit, the U.S. Government reviews the sponsor’s salary.
If the salary is not high enough to satisfy the poverty guidelines the US Government may consider the sponsor’s assets, including the bank accounts, investments, real estate property, vehicles and other assets that are readily convertible to cash within 12 months. However, when assets are considered, the U.S. Government requires that the value of the assets be 5x the difference between the salary and the poverty guidelines amount. However, when the sponsored relative is a spouse of a US Citizen, or Child of a US Citizen over the age of 18, the value of the assets only has to be 3x the difference. In addition, if the sponsor cannot satisfy the poverty guidelines requirement, a joint sponsor can be added.
If the sponsored relative cannot support himself or herself after obtaining Legal Permanent Resident status they can enforce the I-864 to obtain the financial sponsor’s assistance with regard to various expenses. Moreover, in certain circumstances the US Government can enforce the I-864 affidavit to recover public aid that has been received by the sponsored relative.
As mentioned above, the submission of the I-864 affidavit imposes significant liabilities on the sponsor with regard to the sponsored relative. After submitting the I-864 form, the sponsor’s liabilities continue until the sponsored relative has either: 1) Become a US Citizen; 2) Lost his or her Legal Permanent Resident Status; 3) Earned 40 qualifying quarters under Title II of the SSA (approximately 10 years); or 4) Died.
Regarding the death of the Sponsor, it is important realize that the liability to the sponsored relative extends to the estate of the financial sponsor even after the financial sponsor dies for any obligations that incurred prior to the sponsor’s death. If the I-864 sponsor dies after the petition is approved, but before the applicant and family have immigrated, a substitute sponsor can be obtained. The requirements for a substitute sponsor are that the substitute sponsor must be: 1) Related (see statute for relatives that qualify); 2) a USC or LPR; 3) At least 18 years old; 4) Domiciled in the US; and 5) Have sufficient income.
Regarding divorce, it is also important to realize that the I-864 affidavit liabilities extend beyond the divorce. As mentioned above, there are only specific scenarios in which the I-864 liabilities cease. Thus, a divorced spouse could seek to enforce an I-864 affidavit if she is unable to support herself.
It is advisable to consult with an experienced immigration practitioner prior to filing an I-864 affidavit so that you are aware of all liabilities associated with such form.