Written by attorney Michael Paul Gianelli

I-864 Affidavit of Support Basics

I-864 Affidavit of Support

1. Overview Virtually all family-based applicants applying for permanent residence must include in their application an I-864 Affidavit of Support in order to comply with the Immigration and Nationality Act (“INA") § 213A. This requirement is tied to the “public charge" ground of inadmissibility at INA §212(a)(4). Essentially, the sponsor is agreeing to support the intending immigrant up to 125% of the poverty level. The legal implications of this contract are discussed below. Individuals applying for nonimmigrant visas, self-petitioning widows and widowers, self-petitioning battered spouses and children under VAWA, and self-petitioning juveniles do not need to file an I-864. If the applicant is filing for Adjustment of Status, the I-864 Affidavit of Support should be filed with the I-485 Adjustment of Status application. Note that the I-864 must be filed within 6 months of being signed, and the income requirement discussed below must be met at the time of filing, not at the time of the Adjustment of Status application is adjudicated, or decided.

2. Sponsors The petitioner must sponsor the intending immigrant and be a US citizen, US national or lawful permanent resident of the US; at least 18 years old; domiciled (residence + intention to maintain it) in the US or its territories and possessions; and demonstrate the income requirement discussed below.

3. The Income Requirement The sponsor must agree to provide support to maintain the sponsored alien at annual income that is not less than 125% of the federal poverty level for the household size. The federal poverty level is set forth each year by the US government, and a useful chart listing it according to household size can be found on form I-864P. For example, in 2011, 125% of the poverty line for sponsors with a household size of 3 is $23,162. The petitioner/sponsor must demonstrate the ability to earn sufficient income to provide the necessary support for the sponsored family member. Note that a sponsor is allowed to include the income of qualified household members. Furthermore, the petitioner/sponsor may seek to prove that s/he has sufficient assets available to support the immigrant or find a joint sponsor to meet the income requirements.

4. Household Size Include the following people to determine household size: sponsor; sponsor’s spouse, wherever she resides; sponsor’s children under 18, wherever they reside; any dependents listed on the most recent tax returns; any other persons sponsored in I-864 contracts if the obligation still exists; the principal beneficiary and his or her accompanying dependents.

5. Supporting Documentation First, the sponsor must include evidence of his or her status as a US citizen or lawful permanent resident. Sponsors must also submit copies of their most recent federal income tax return and W-2s or 1099s. Note that IRS printouts from local IRS offices are acceptable evidence of filing and government receipt of the tax payment. Although only the most recent tax documents are required, it is advisable to include the returns from the last three years as this evidence will be considered by the adjudicator. The failure to file income tax returns may be problematic. If the sponsor, joint sponsor, or household member included for income purposes, did not file a federal tax return for the year in which a transcript must be provided, the Affidavit of Support will not be accepted unless they establish that there was no duty to file. An accountant should be consulted if failure to file federal taxes is at issue. 6. Significant Assets If household income is insufficient, evidence of “significant assets" can be used to satisfy the income requirement. These assets can be owned by the sponsor, other household members, or the intending immigrant. Only those assets that can be readily converted to cash may be considered and “significant assets" may include savings accounts, life insurance policies with cash surrender value, real estate, stocks and bonds, and personal property, etc. Evidence of ownership, the value of the asset (including liens and liabilities), and a statement of the properties location should be submitted. Note that if the sponsor is a US citizen and the beneficiary is a petitioner’s spouse or child aged 18 or over, the cash value of the assets must equal or exceed three times the gap between the sponsor’s income and the federal poverty threshold. Otherwise (except for orphans being adopted in the US), the assets must be at least five times the shortfall.

7. Joint Sponsors A joint sponsor may be used if the petitioner’s income and assets do not equal or exceed 125% of the federal poverty level for the household size. Each joint sponsor must independently satisfy the income or asset requirements. A petitioner must still file an I-864 even if using a joint sponsor.

8. Legal Effect The contract is between the sponsor and the US government, with the intending immigrant being a third party beneficiary. The sponsor is agreeing to support the sponsored immigrant at 125% of the poverty guidelines. Through a civil action, the contract may be enforced by the sponsored immigrant or any state, federal or local government agency, or private entity that administers means-tested public benefits program. Note that when a sponsored immigrant applies for certain public benefits, the income of the sponsor should be considered in determining the immigrant’s eligibility for the benefits. If the immigrant does receive those benefits, the sponsor is liable for reimbursement to the applicable government agency or private entity. The impact of this contract in divorce proceedings is the topic of another outline.

9. Termination of Contract The obligations end when the immigrant naturalizes, has worked for 40 qualifying quarters of work (10 years), dies or abandons his or her permanent residence.

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