Immigration Law Associates
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Affidavits of Support

For many foreigners seeking to obtain permanent U.S. residence through family-based or employment-based applications, the issue of the Affidavit of Support USCIS Form I-864, Affidavit of Support must be filed with virtually all family-based adjustment of status applications as well as with applications for immigrant visas sought through U.S. consular posts. Furthermore, the Affidavit is required in a limited number of employment-based cases where the petitioning employer is a relative of the beneficiary or has 5 percent or more ownership interest in the entity filing the petition.  Implemented in 1996 to further ensure that foreigners likely to become public charges were not admitted to the U.S., the Affidavit of Support requirement is an inevitable requirement that must be satisfied in order for many foreigners to ultimately obtain legal permanent residence.

Form I-864, Affidavit of Support is a legally binding contract in which the family sponsor commits to providing financial support to the foreign relative beneficiary. This contract is enforceable for a considerable period of time and does not end by the termination of the family relationship (for example, a divorce). In fact, legitimacy of the Affidavit extends beyond the sponsor’s life and can only terminate once the sponsored immigrant naturalizes or when he or she has worked or can be credited with 40 qualifying quarters of work as defined by the Social Security Act. The contractual obligation also ends if the sponsored immigrant dies or is no longer a lawful permanent resident and has departed the U.S.

When exactly then is the Affidavit of Support required? The Affidavit of Support is not required for nonimmigrant applications. Generally, the I-864 form must be filed for adjustment of status and consular processing cases and includes the following situations:

  1. Adjustment of status and immigrant visa (consular processing) applications filed on and after December 19, 1997, based on USCIS approval of Form I-130, “Petition for Alien Relative;”
  2. Adjustment of status applications by K-1 fiancé(e) nonimmigrants filed on and after December 19, 1997;
  3. Adjustment of status and consular processing applications based upon the USCIS approval of Form I-140 where the petitioning employer is a relative of the beneficiary or in which a relative has a 5 percent or more ownership interest in the entity that filed the I-140.
  4. Adjustment of status and consular processing cases for orphans based upon the filing of Form I-600.

Only the sponsor can file the Affidavit of Support. The sponsor must be the petitioning family member (This would include certain relatives in employment-based cases). If the original sponsor cannot meet the required financial requirements, an additional person called a joint sponsor may also complete and execute a Form I-864. If necessary, more than one joint sponsor may be used; however, each individual must personally qualify as a “sponsor.” Perhaps more importantly, each joint sponsor is jointly and severally liable on the affidavit.

In order to qualify, the sponsor(s) must demonstrate the ability to financially support the foreigner and indeed this issue is one that has raised many questions. Normally, however, the sponsor must have an income or assets or a combination of both that meets at least 125 percent of the stated poverty guidelines issued annually by the federal government. Perhaps most importantly, all household members of the sponsor are considered when determining whether the sponsor meets the poverty guidelines. Persons considered household members regardless of whether or not receive direct financial support from the sponsor include: (1) individuals related by blood, marriage, or adoption, to the sponsor (Children are considered only if they are under age 21); (2) any dependent on the sponsor’s IRS income tax return; (3) any person for whom the sponsor has previously executed a Form I-864; and (4) the beneficiary, or applicant, and all accompanying dependents.

In order to determine the sponsor’s household income, Form I-864 requires the sponsor to list total unadjusted income, before deductions, from the most recent tax return. If the sponsor’s household income is insufficient, then submission of evidence of the sponsor(s)’ significant assets is permitted. In order for such evidence to qualify for submittal, the following must be true regarding the assets:

  1. The cash value of the assets must equal at least five times the difference between total household income and the required minimum income level;
  2. Assets must be owned by the sponsor, other household members who sign Form I-864A (Contract Between Sponsor and Household Member), or the alien;
  3. Assets must be readily convertible into cash within one year. Examples include stocks, bonds, life insurance policies with cash surrender value, real estate, and even personal property;
  4. Assets outside the United States only if the sponsor can clearly demonstrate the ability to take the assets out of the county where they are located.

For documentation purposes with regard to income, all sponsors and household members and dependents who submit form I-864 must submit copies of their complete federal income tax returns for the most recent three tax years as well as proof of current income evidenced by pay stubs or an employment letter. As with income, all purported assets must be documented.

With so much required information, the Affidavit of Support can indeed appear to be a daunting obstacle for obtaining family-based or employment-based permanent U.S. residence. However, with a bit of attention and dedication to providing documented and complete financial information, this particular step in the process of immigration sponsorship need not be so intimidating.

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