Understanding the Affidavit of Support
The Affidavit of Support is a legal contract between the U.S. government and an individual sponsoring a foreign individual in an immigration case. The guide is specifically targeted for those seeking family-based immigration benefits.
The BasicsThe Affidavit of Support is one of the many documents that must be submitted as part of the family-based immigration process. It is without question one, if not the, most important document according to this author. In order for an individual to serve as an I-864 sponsor they must be either a U.S. citizen or Lawful Permanent Resident, 18 years of age, domiciled in the U.S. and have an income 125% above the federal poverty guidelines, in most cases. For individuals who are active duty members of the U.S. Armed Forces, the minimum guideline is 100% above the poverty line for petitions for spouses and children. In signing the Affidavit of Support, a USC is actually entering into a legal contract with the U.S. government whereby they are promising that the non-citizen will NOT become a public charge or dependent on government support. In the event that a person does become a public charge, the signing of the Affidavit of Support gives the U.S. government legal standing to recuperate from the sponsor the money expended for the non-citizen.
Contractual EnforcementIn fact, the viability of the I-864 as a legally enforceable contract is such that there are only certain conditions under which a sponsor's contractual obligation will end. When one of the following conditions occurs for the non-citizen, the contractual obligation ends. The conditions are: becoming a USC, working or being credited with, 40 quarters of coverage under the Social Security Act, relinquishing or being divested of LPR status and leaving the U.S., becoming subject to removal, but applying for and obtaining in removal proceedings, a new grant of adjustment of status, based on a new affidavit of support, if one is required or dying. It is important to note that divorce does not end the obligation under a signed I-864. Additionally, it is also important to note that case law in numerous states over the last few years has created precedent that the I-864 can be utilized in divorce court to support a finding of intention to provide maintenance for the non-citizen spouse.
Financial requirementsThe guidelines are based on the Department of Health and Human Services designations. They require that the sponsor exceed the guidelines by 125%. There is an exception for active duty service member who petition for spouses or child(ren.) The guidelines have separate financial requirements for sponsors living in the 48 contiguous states, D.C. and other U.S. territories, which are lower than the financial requirements for Sponsors living in Alaska and Hawaii. This is based on the cost of living designations for each of these States. Additionally, the guidelines require that the sponsor's household size be taken into account to determine their viability to sponsor.