Help Center: Form I-864, Affidavit of Support

Welcome to the new Affidavit of Support Help Center. If you feel that you need some help with the Form I-864, Affidavit of Support, you are not alone. Technical errors with the Form I-864 are among the most common reasons for denial of permanent residence applications.

What can you do here at the Affidavit of Support Help Center?

learn Learn: The below plain-English guide explains the basics of how to complete the I-864 and the legal responsibilities of sponsors and household members.
research Research: The below guide includes 150+ footnotes with references to legal authorities.
Q&A Ask Questions: You are welcome to ask questions of a general nature in the Comments section below.
video call Consult with an experienced immigration attorney: If you would like our law firm to prepare or review your Form I-864 and supporting documents, answer your questions, and provide related advice, see here to schedule an appointment.

Information contained here should not be construed as legal advice. Do not act or rely on this information without seeking legal advice from a qualified lawyer who learns your goals, investigates the specific facts of your case, researches how the law may apply to those facts, and then gives advice taking all that into account.

Contents

1. Introduction

Applicants for lawful permanent resident status (i.e., a green card) must prove they are not likely in the future to become a “public charge,”[1] meaning a person who relies on cash welfare for their income, or who is in long-term care (a nursing home).[2]

To avoid a “public charge” finding, most family-sponsored immigrants and certain employment-based immigrants must have a Form I-864, Affidavit of Support, submitted on their behalf by the same person who filed the visa petition.[3]

The Form I-864, Affidavit of Support., is a contract with the U.S. Government in which the sponsor promises to provide support to maintain the sponsored immigrant at a minimal annual income level. In this contract, the sponsor also agrees to reimburse any federal or state agency that provides a means-tested benefit to the sponsored immigrant.[4]

The sponsor must normally show that his or her current year’s household income is[5] and future income likely will be[6] at least 125% of the poverty guidelines. Exceptions are allowed where either[7]:

  • the sponsor together with the intending immigrant can show significant assets; or
  • a joint sponsor executes a separate affidavit of support.

Errors in the Form I-864 are one of the most common types of problems in family-based immigration cases. This Guide explains the requirements and procedures to file a Form I-864. The Guide also explains the legal obligations that a sponsor or household member undertakes with respect to the affidavit of support.

2. Who Is a Public Charge?

Most family-sponsored applicants for permanent resident status must prove they are not likely to become a “public charge.” The term “public charge” means primarily dependent on the U.S. Government for either (a) public cash assistance for income maintenance or (b) payment for long-term institutional care.[8]

In making public charge decisions, the officer should consider the applicant’s age; health; family status; assets, resources, and financial status; and education and skills.[9]

The term “public cash assistance for income maintenance” means[10]

  1. Supplemental security income (SSI);
  2. Cash temporary assistance for needy families (TANF), but not including supplemental cash benefits or any non-cash benefits provided under TANF; and
  3. State and local cash assistance programs that provide for income maintenance (often called state general assistance).

An officer’s public charge decision is forward-looking, so it cannot be based solely on the prior (or current) receipt of public benefits.

Receipt of other non-cash or supplemental assistance should not be considered by the officer in making a public charge decision. This includes, for example[11]:

  1. The Food Stamp Program;
  2. The Medicaid Program (other than payments under Medicaid for long-term institutional care);
  3. The Child Health Insurance Program (CHIP);
  4. Emergency medical services;
  5. The Women, Infants and Children (WIC) Program;
  6. Other nutrition and food assistance programs;
  7. Other health and medical benefits;
  8. Child-care benefits;
  9. Foster care;
  10. Transportation vouchers;
  11. Job training programs;
  12. Energy assistance, such as the low-income home energy assistance program (LIHEAP);
  13. Educational assistance, such as Head Start or aid for elementary, secondary, or higher education;
  14. Job training;
  15. In-kind emergency community services, such as soup kitchens and crisis counseling;
  16. State and local programs that serve the same purposes as the Federal in-kind programs listed above; and
  17. Any other Federal, State, or local program in which benefits are paid in-kind, by voucher or by any means other than payment of cash benefits to the eligible person for income maintenance.

Similarly, cash benefits that have been earned (e.g., social security payments, old age survivors disability insurance (OASDI), U.S. Government pension benefits, and veterans benefits) are not considered public cash assistance for the purposes of a public charge determination.[12]

3. Is a Form I-864 Needed in Your Case?

3.1 Cases Requiring Form I-864

The Form I-864 is required, effective December 19, 1997, in the following situations[13]:

  1. Immigration based on an approved Form I-130, Petition for Alien Relative.
  2. The intending immigrant is a K-1 fiance(e) filing a Form I-485, Application to Adjust Status, based on the approved Form I-129F, Petition for Alien Fiancé(e).
  3. Immigration based on a Form I-600, Petition to Classify Orphan as an Immediate Relative, or Form I-600A, Application for Advance Processing of Orphan Petition for orphan.
  4. Immigration based on a Form I-140, Immigrant Petition for Alien Worker, in which a U.S. citizen or lawful permanent resident relative (spouse, parent, child, adult son or daughter, brother or sister) of the intending immigrant is the petitioner or for a company in which such relative has an ownership of 5% or more.

Use of a Form I-864 is inappropriate in other situations, such as:

  • applications for nonimmigrant visas, including K-1 fiancée visas;
  • applications for permanent resident status by refugees and asylees; and
  • applications for permanent resident status through registry, the Nicaraguan Adjustment and Central American Relief Act (NACARA), the Haitian Refugee Immigration Fairness Act, and the Cuban Adjustment Act.

Moreover, a Form I-864W, Intending Immigrant’s Affidavit of Support Exemption, should be filed instead of Form I-864 in the situations described in the following section.

3.2 Cases Requiring Form I-864W, Intending Immigrant’s Affidavit of Support Exemption

An intending immigrant “must” submit the Form I-864W, Intending Immigrant’s Affidavit of Support Exemption, “instead of Form I-864” in the situations listed below.[14]

In addition to filing the Form I-864W, the intending immigrant must also prove he or she is not likely to become a public charge.

Automatic Citizenship

The intending immigrant is a child (other than a stepchild) who, upon being granted LPR status, will automatically become a citizen under Child Citizenship Act on the basis that he or she is under age 18 and residing with a U.S. citizen parent.

Self-Petitioners

The intending immigrant is a self-petitioning widow(er), battered spouse, or battered child; or

Social Security Credits

An I-864W should be used where the intending immigrant can be credited with 40 quarters work in the U.S. within the meaning of the Social Security Act.[15] Social Security credits can be earned by working in the U.S., by working overseas for an American company or it affiliate, or by working overseas in a country that has a Social Security agreement with the United States.[16] This can be a combination of the following:

  • quarters worked by the intending immigrant;
  • quarters worked by a parent before the intending immigrant reached age 18[17]; and
  • quarters worked during the marriage by the intending immigrant’s spouse, provided, if either the marriage has not terminated or the spouse is deceased.

A quarter of coverage represents a calendar quarter in which the individual’s earnings covered by Social Security exceed a specific threshold. For 1978 and after,[18] the number of quarters of coverage credited for a year (from 0 to 4) is calculated in terms of total covered earnings for the year. That is true of self-employment income both before and after 1978. Under this approach, work during a single month, if well compensated, can give rise to the maximum four quarters of coverage for the year. During 2008 wages of $1,050 generate one quarter of coverage; $4,200, a full four.

Amount of Earnings Needed to Earn One Quarter of Coverage[19]

But a quarter after 1996 can’t be counted if the intending immigrant, parent, or spouse who worked received federal means-tested benefits.[20]

Under a 2004 amendment, quarters of coverage are not awarded for work performed in the U.S. by non-citizens who have neither been lawfully issued Social Security numbers nor granted B1 or D visas.[21]

In a case where the exemption applies because the intending immigrant can be credited with 40 quarters of work, a Social Security Statement should be submitted for the person or persons who performed the work.[22] The Social Security Statement can be requested online. Start by creating an account at https://www.socialsecurity.gov/myaccount/. A signed statement that no federal means-tested benefits were received during that 40-quarter period should also be submitted in support of the exemption.[23]

Sample Social Security Statement

3.3 When and Where to File

Immigration Based on Form I-130, Petition for Alien Relative

The process for family-sponsored immigration normally begins by a U.S. citizen or lawful permanent resident filing a Form I-130, Petition for Alien Relative. The I-130 asks whether the beneficiary will either (a) file a Form I-485, Application to Adjust Status, with USCIS, or (b) apply for an immigrant visa at a U.S. embassy or consulate abroad.

The I-130 beneficiary may file a Form I-485 with USCIS if he or she is physically present in the U.S. and meets certain other requirements. In that case, the I-864 should be submitted with the Form I-485.

Otherwise, the I-864 is submitted as part of the immigrant visa application process:

  • If the petitioner resides within the United States, the I-130 is filed by mail with a USCIS lockbox. After the I-130 is approved, it is forwarded to the State Department’s National Visa Center (NVC) for processing. The immigrant visa applicant’s documents and I-864 are submitted to NVC for review for completeness. NVC charges a fee of $120 for the I-864 review.[24] NVC then forwards the file to the U.S. embassy or consulate abroad, where the I-864 will be reviewed by the consular officer as part of adjudicating the immigrant visa application.[25]
  • If the petitioner resides outside the United States, the petitioner may choose to file the I-130 by mail with a USCIS lockbox, in which case the I-864 subsequently will be submitted to NVC as described above. Or the petitioner may file the I-130 with an international USCIS office, U.S. Embassy, or U.S. Consulate. In such cases, after the I-130 is approved, the I-864 will be submitted by the immigrant visa applicant to the consular officer at the time of the immigrant visa appointment.

Immigration Based on Form I-129F, Petition for Alien Fiance(e)

If immigration is based on Form I-129F, Petition for Alien Fiance(e), after approval by USCIS of that form the fiance(e) will apply for a K-1 visa at a U.S. consulate abroad. For the visa to be approved, the fiance(e) or spouse will need to prove he or she is not likely to become a public charge, but the Form I-864 is not used. Instead, sometimes the Form I-134, Affidavit of Support, may be appropriate.

Subsequently, the fiance(e) will enter the U.S., marry the petitioner, and file a Form I-485, Application to Adjust Status. The petitioner must file a Form I-864 at the same time.

4. Qualifying as a Sponsor

4.1 Petitioner

The petitioner who filed the Form I-129F, I-130, I-140, I-600, or I-600A must qualify as a “sponsor”[26] and file a Form I-864.

4.2 Joint Sponsor

If the sponsor is unable to prove the means to maintain the minimum income level in the future, a “joint sponsor” may also be used.[27] A joint sponsor does not have to be related to the petitioning sponsor or the intending immigrant.[28] The joint sponsor must execute a separate Form I-864. The joint sponsor must satisfy the income requirements independently. In other words, the petitioner and joint sponsor may not pool their income to arrive at a total that satisfies the income threshold.

Use of a joint sponsor does not relieve the petitioner from the responsibility to meet the sponsorship requirements, file federal income tax returns for the three most recent years (if legally required to do so), and file a Form I-864.

Each intending immigrant may have not more than one joint sponsor. And in family-based preference category cases comprised of a principal beneficiary and at least one accompanying derivative, the sponsor may use up to two joint sponsors.[29]

4.3 Death of the Petitioner

Unfortunately, there are occasions when a petitioner who has filed a Form I-130, Petition for Alien Relative, dies before his or her relatives immigrate. It may still be possible to complete the immigration process. The death’s impact on the requirement to file a Form I-864, Affidavit of Support, is discussed below.

Widow(er) of a U.S. Citizen

No I-864 is required to immigrate as the widow(er) of a U.S. citizen, although a Form I-864W, Affidavit of Support Exemption, should be filed.[30]

To immigrate as a widow(er), a Form I-360, Petitioner for Widow(er),[31] must be filed within two years of the U.S. citizen spouse’s death, and must prove:[32]

  1. the couple was married (and not legally separated) at the time of the spouse’s death;
  2. the spouse was a U.S. citizen at the time of death (not necessarily during the whole period of the marriage);
  3. the widow(er) has not remarried before acquiring permanent resident status.

The child of a qualifying widow(er) is also entitled to status as a derivative if accompanying or following-to-join the principal beneficiary.[33] No I-864 is required.[34]

Surviving Relative Consideration

In addition to widow(er)s discussed above, other beneficiaries of pending or approved I-130s who (a) resided in the United States at the time of the death of the petitioner and (b) continue to reside in the United States, may immigrate notwithstanding the petitioner’s death.[35]

A “substitute sponsor” must file an I-864. The substitute sponsor must be a close relative of the beneficiary (e.g., spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years of age, son, daughter, daughter-in-law, son-in-law, sister-in-law, brother-in-law, grandparent, or grandchild) or a legal guardian.[36]

Humanitarian Reinstatement

I-130 beneficiaries who do not qualify for the above “surviving relative consideration” but whose petitioner died after the I-130 was approved and before permanent resident status was granted, may file a motion to reinstate the revoked I-130 based on humanitarian factors.[37]

As part of the motion to reinstate the petition, an I-864 by a substitute sponsor should be included. The “substitute sponsor” here must meets the same requirements as in “surviving relative consideration cases.[38]

Derivative Beneficiaries Following to Join the Principal Applicant

A derivative beneficiary “following to join” a principal applicant means the spouse or child of the principal beneficiary of an I-130 who applies for an immigrant visa or is granted adjustment of status 6 months or more after the principal has immigrated.[39]

Eligibility of derivative applicants seeking to follow-to-join a principal applicant who has already acquired lawful permanent resident (LPR) status is dependent on the continuing LPR status of the principal, not on the status of the petitioner.[40]

Therefore, if the petitioner dies after the principal applicant has already become an LPR and one or more derivative applicants seek to follow to join the principal applicant, the derivatives retain eligibility to follow-to-join despite the death of the petitioner, and there is no need for reinstatement of the petition. In such circumstances, the derivative applicant seeking to follow-to-join needs an I-864 by any qualified sponsor, including the principal applicant who has already become an LPR.[41]

4.4 Requirements to Qualify as a Sponsor

The requirements to qualify as a sponsor (including a joint or substitute sponsor) are that an individual must be[42]:

  1. a U.S. citizen, national, or permanent resident;
  2. age 18 or older; and
  3. domiciled in the U.S., including a U.S. territory or possession. (This can be satisfied by proving that the individual “will establish a domicile in the United States on or before the date of the principal intending immigrant’s admission or adjustment of status.”[43])

4.5 The Domicile Requirement Explained

The requirement of proving domicile in the United States requires further explanation. Part 4 of the Form I-864 asks a sponsor to list his or her country of domicile:[44]

The concept of domicile is related to residence, which is defined by the Immigration and Nationality Act as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.”[45] You can think of your residence as the place where you sleep most nights.

The key difference between residence and a domicile is that the latter requires an intention to remain for the “foreseeable future.”[46] For example, a student from the United States who is studying abroad may count as “residing” abroad, but if she intends to move back to the United States upon graduation, she may still be “domiciled” in the United States.

So:

  • If you are “domiciled” abroad, you will be required to prove that you will re-establish domicile in the United States not later than when the sponsored immigrant becomes a permanent resident.
  • If you are “residing” temporarily abroad (as evidenced by a foreign mailing address or physical address in Part 3 of Form I-864) but remain “domiciled” in the United States, you will be required to submit evidence of how you meet the domicile requirement.[47]

Domicile in the Case of a Sponsor Residing Abroad Temporarily

In determining whether a sponsor living abroad remains domiciled in the U.S., USCIS will consider whether the stay abroad intends to be temporary and whether the sponsor has “maintained an intent to keep his or her domicile in the United States, despite the temporary sojourn abroad.”[48]

The State Department’s analysis is a bit more detailed:

Some petitioners have remained abroad for extended periods but still maintain a principal residence in the United States (i.e., students, contract workers, and non-governmental organization (NGO) volunteers). To establish that one is also maintaining a domicile in the United States, the petitioner must satisfy you that he or she:

(1) Departed the United States for a limited, and not indefinite, period of time;

(2) Intended to maintain a U.S. domicile at the time of departure; and,

(3) Can present convincing evidence of continued ties to the United States.[49]

Evidence that a trip abroad is temporary may include, for example, proof of your voting record in the U.S., proof of paying U.S. state or local taxes, proof of having property in the U.S., proof of maintaining bank or investment accounts in the U.S., proof of having a permanent mailing address in the U.S., proof that you are a student studying abroad, or evidence that a foreign government has authorized merely a temporary stay abroad.[50]

There are also two specific situations where persons abroad temporarily count as domiciled in the U.S.:

Domicile for Permanent Resident with Approved Form N-470, Application to Preserve Residence for Naturalization Purposes

A permanent resident living abroad temporarily pursuant to the terms of an approved Form N-470, Application to Preserve Residence for Naturalization Purposes, is considered to be domiciled in the U.S. To file a Form N-470, a person must be physically present in the U.S. for one continuous year after being granted permanent resident status and must contemplate being abroad for more than one year for purposes of employment for certain U.S. employers, public international organizations, or religious organizations.[51]

Domicile for U.S. Citizen Working Abroad for a U.S. Employer, Public International Organization, or in a Religious Capacity

A U.S. citizen living abroad “temporarily” qualifies as “domiciled” in the U.S. if his or her employment abroad meets the requirements of section 319(b)(1) of the Act:[52]

The first requirement is that the citizen is employed by one of the following types of entities: (a) the U.S. Government; (b) an American institution of research recognized as such by the Attorney General “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof”; (c) a public international organization in which the United States participates by treaty or statute[53]; or (d) is a minister, priest, or missionary.

Second, the citizen must be “regularly stationed abroad,” meaning that he or she “proceeds abroad, for a period of not less than one year, pursuant to an employment contract or orders, and assumes the duties of employment”[54]; and

Third, the citizen must be living abroad “temporarily.”[55]

Procedurally speaking, the citizen should provide “a written explanation and documentary evidence” of how the domicile requirement is met.[56] The specific evidence required is not specified and may vary from case to case, but in our firm’s experience at a minimum it should include a declaration or affidavit from an officer of citizen’s employer who has access to relevant company records and states[57]:

  1. the name of the employer and nature of the employer’s business;
  2. whether the employing entity is owned in whole or in part by United States interests (e.g., date and state of incorporation, that the corporation is currently in good standing);
  3. whether the employing entity is engaged in whole or in part in the development of the foreign trade and commerce of the United States;
  4. the nature of the activity in which the citizen spouse is engaged. (It may also be helpful to explain the type of employment, such as contract employment or regular employment); and
  5. the anticipated period of employment abroad.

Reestablishment of Domicile

If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor “will establish a domicile in the United States on or before the date of the principal intending immigrant’s admission or adjustment of status.”[58] This must be proven by the preponderance of the evidence, i.e., by “concrete evidence.”[59]

USCIS and the State Department list several factors that may show an intention to reestablish domicile in the U.S.: [60]

  • Accepting a job or “seeking employment” in the U.S.
  • Signing a lease, purchasing a residence, or making arrangements to stay in another’s home. (Just beginning a house search is not mentioned but may be relevant too).
  • Registering children in U.S. schools.
  • Opening a bank account or transferring funds to the U.S. or investing in the U.S.
  • Voting in U.S. elections.
  • Getting a U.S. driver’s license is not mentioned but the U.S. Consulate in Guangzhou has found it to be relevant in some cases.
  • This list of factors is not meant to be exclusive. A sponsor may have other relevant evidence of plans to reestablish domicile in the U.S.

A sponsor’s stated intention to re-establish U.S. domicile must be judged by the consular officer to be credible. Credibility may be easier to establish in some cases than others. For example, if a spouse is immigrating, the officer may believe it’s natural for the sponsor to move to the U.S. to stay together. But a consular officer may doubt that a sponsor would necessarily move to the U.S. when a sibling or adult son or daughter immigrates. Where credibility is an issue, the officer may require more corroborating evidence. Here’s a sample request for additional evidence from a sponsor:

The petitioner must show that she/he spends a preponderance of time in the U.S. This time spent in the U.S. needs to be over a period of time. In other words, the petitioner must show that the petitioner is truly maintaining a residence in the United States, not just traveling for a couple of months at a time and then returning [abroad]. Although there is no time frame [required] to establish residence, it must be convincing evidence of continued ties to the United States and that the petitioner has, in fact, taken up residence in the United States. Evidence that the sponsor has established a domicile in the United States and is either physically residing there or intends to do so before or concurrently with the applicant includes, but is not limited to, the following: (1) opening a bank account; (2) transferring funds to the United States; (3) making investments in the United States; (4) seeking employment in the United States; (5) registering children in U.S. schools; (6) applying for a social security number; (7) voting in local, state or federal elections (8) leases, mortgages, utility bills, telephone bills, etc. established in the petitioner’s name. Provide a photo of the petitioner holding a current newspaper with the date clearly visible standing in front of a U.S. post office and color copies of all pages of the petitioner’s international passport[ ] with page numbers clearly visible.

Note that an immigration officer must later deny the intending immigrant’s application for admission to the U.S. or adjustment of status, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision.

5. Calculating Whether You Meet the Minimum Income Requirement

The “minimum income requirement,”[61] also known as the “income threshold,”[62] is calculated as follows: the current year’s household income and future years’ likely household income must be at least 125%[63] of the poverty guidelines for the household size. This requires some explanation.

5.1 Definition of “Household Size”

Part 5 of the Form I-864 requires that the sponsor calculate his or her “household size.” Household size is calculated by counting the following persons. Don’t count anyone twice[64]:

  • “Dependent children” means all your unmarried children under age 21, even if you don’t have custody of them. “You may exclude any who have reached majority under the law of their place of domicile” if “you do not claim them as dependents on your Federal income tax returns.”[65]
  • “Other dependents” refers to persons besides “dependent children” listed as dependents on your most recent Federal income tax return.[66]
  • Other persons “sponsored on Form I-864 or Form I-864EZ” refers only to persons sponsored after these forms were put into use on December 19, 1997.

5.2 Poverty Guidelines

USCIS Form I-864P, Poverty Guidelines,[67] show the minimum income required for the household size. The I-864P is based on data from the U.S. Department of Health and Human Services, which is published about March of each year.

Sponsor’s Household Size 125% of the Federal Poverty Line[68]
2 $20,025
3 $25,200
4 $30,375
5 $35,550
6 $40,725
7 $45,912
8 $51,112

2016 Poverty Guidelines for all states except Alaska and Hawaii[69]

5.3 Definition of “Household Income”

“My current annual household income,” listed in Part 6, item 15, is often the most important data in the Form I-864. The reason is that “the sponsor’s affidavit of support shall be considered sufficient … if the reasonably expected … income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status” meets the required income threshold.[70]

Income means the “total income” for purposes of Federal income tax liability.[71] “Total income” is listed Line 22 on IRS Form 1040; line 15 on Form 1040A; or line 4 on Form 1040EZ (“adjusted gross income”).[72]

Income Section of the 2014 IRS Form 1040

“Total income” includes, among other things:[73]

  • wages, salaries, tips
  • taxable interest
  • ordinary dividends
  • alimony
  • business income
  • capital gains
  • taxable IRA distributions
  • taxable pensions and annuities
  • rental income
  • unemployment compensation
  • taxable Social Security benefits
  • ordinary dividends

Further, income includes alimony and child support.[74]

Means-tested public benefits, such as food stamps, SSI, Medicaid, TANF, or CHIP are excluded from the definition of income.[75]

For U.S. citizens and permanent residents employed abroad, if you claim a foreign-earned income and housing exclusion on your taxable income (up to $100,800 for 2015), this will be shown as a negative amount in the income section of your IRS 1040. As a result, it’s not uncommon for expats’ tax returns to not meet the income threshold.

Part 6, Item 2 asks for “My current individual annual income.” But, as mentioned above, Part 6, Item 16 asks for “my current annual household income.” The “household” may include, in addition to the sponsor’s income, the income of any of the following individuals used in calculating the household size[76]:

  1. a U.S. citizen, national, or lawful permanent resident at least age 18 who has the same principal address as the sponsor; is related to the sponsor as a spouse, adult son or daughter, parent, or sibling; and signs a Form I-864A, Contract Between Sponsor and Household Member;
  2. a U.S. citizen, national, or lawful permanent resident at least age 18, whom the sponsor has lawfully claimed as a dependent on the sponsor’s most recent Federal income tax return (even if that person does not live at the same residence as the sponsor) and who signs an I-864A; or
  3. the intending immigrant, if his or her income will continue from the same source after becoming a permanent resident and either (a) has the same address as the sponsor; or (b) is the sponsor’s spouse. The intending immigrant only needs to sign an I-864A if his or her income will be used to support accompanying dependents. (No I-864A is required for the intending immigrant’s own case to count her own income.[77] And no I-864 is required if the intending immigrant will use only assets to support accompanying dependents.).

There is no requirement that the household member be domiciled in the United States.

5.4 Determining the Sufficiency of Your Current Annual Household Income

As mentioned above, the “minimum income requirement,”[78] also known as the “income threshold,”[79] is calculated as follows: the current year’s household income and future years’ likely household income must be at least 125%[80] of the poverty guidelines for the household size.

Current annual household income: The current year’s household income refers to the “reasonably expected household income for the year.”[81] The “current year” refers to the year that the sponsor signs or submits the affidavit of support; the rules are not clear.[82] (Note: This is not the amount shown on the prior year’s tax return.[83]) In estimating the current year’s income, the sponsor should take into account whether any employment is likely to continue through the end of the year; whether typical seasonal changes in work schedules and hours may impact the calculation; whether any end-of the-year bonus is likely; and whether their salary is likely to change.[84] Current annual household income is recorded on Form I-864 at Part 6, Item 5.

If more than one year passes between the filing of the Form I-864 and the intending immigrant’s interview, the officer may “in the exercise of discretion request additional evidence.[85] In such cases, the “current year” for which the sponsor’s income must meet the threshold refers to the year of the officer’s request.

Future years’ likely household income: If the income threshold for the current year is met, that year’s household income “shall be given the greatest evidentiary weight” for determining “whether the sponsor is likely to be able to maintain his or her income in the future.”[86] Further, once the income threshold for the current year is met, the future likely income “may be held to be insufficient … only if, on the basis of specific facts … it is reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligations.”[87] The sponsor’s three most recent Federal income tax returns are certainly relevant to evaluation to evaluating the sufficiency of future income.[88] They may show, for example, that the sponsor’s income has not consistently met the threshold or that the sponsor’s income is declining over time.

If the sponsor is currently employed abroad, current employment income is not sufficient to prove future years’ likely household income in the United States. “The prospect of employment in the United States that has not yet actually begun will not be sufficient to meet [the household income] requirement.”[89]

Another specific fact which may be relevant to proving future years’ likely household income is a recent change in the sponsor’s job:

Suppose, for example, that the sponsor recently started a new job after a long period of unemployment. If the sponsor has a reasonable prospect that the employment will continue, then it may well be that the affidavit of support will be sufficient. If, however, the new position is, by its terms, only temporary or seasonal, it would be reasonable to hold that the income is not sufficient to show that the sponsor can reasonably be expected to be able to maintain his or her household income at the income threshold.[90]

Nowhere mentioned in the rules but possibly relevant are facts indicating that the sponsor’s death or retirement is imminent.

6. Proving Income and Assets

6.1 Evidence of Income

Tax Transcripts or Returns

The sponsor, or household member filing a Form I-864A, must submit either a photocopy or an Internal Revenue Service-issued transcript of his or her complete Federal income tax return for the most recent taxable year.[91] If a photocopy is submitted, also submit copies of all schedules filed with each return and all Forms W-2 and Forms 1099 used to meet the income threshold.[92]

The sponsor or household member may, at his or her option, submit federal tax transcripts or returns for the three most recent years if the sponsor believes that these additional tax returns may help in establishing ability to meet the minimum income requirement.[93]

Regardless of whether one or three years’ federal income tax transcripts or returns are submitted, the sponsor or household member is still required to have actually filed returns for all three most recent years. Failure to do so will mean that the Form I-864 or I-864A is insufficient.[94]

An exception is that if the individual had no legal duty to file a Federal income tax return, he or she must explain why he or she had no legal duty to a file a Federal income tax return for that year.[95] If the individual claims he or she had no legal duty to file for any reason other than the level of the sponsor’s income for that year, the initial evidence submitted with the Form I-864 or I-864A must also include any evidence of the amount and source of the income that the individual claims was exempt from taxation and a copy of the provisions of any statute, treaty, or regulation that supports the claim that he or she had no duty to file an income tax return with respect to that income.[96]

One strategy to deal with questions of whether or not an individual had a legal duty to file a return is just to submit it to IRS. If it evidences no tax liability, there is no penalty for late filing.

Tax Returns for the Sponsor of a Nonresident Alien Spouse

If you are the sponsor of a nonresident alien (NRA) spouse, then when you file your tax return you will need to choose an appropriate filing status (married filing jointly, married filing separately, or head of household). Do not file as single. Discuss with your tax adviser whether it may be beneficial to apply for an Individual Tax Identification Number (ITIN) for your spouse.

A “nonresident alien” is a person who is not a U.S. citizen, national, or permanent resident and has not been physically present in the U.S. for long enough to meet the IRS’s “substantial presence test.”[97]

An ITIN is issued to people such as NRA spouses who don’t qualify for a Social Security Number (SSN) but need a similar number for purposes such as filing U.S. taxes or to claim or allow a spouse to claim a tax benefit.[98]

If you are a U.S. citizen and your spouse is a NRA, then your spouse will need an ITIN if, upon consultation with your tax adviser:

  • you wish to make a special election to file married filing jointly (MFJ). Note that if you do so, your spouse’s worldwide income is subject to U.S. taxation; or
  • you plan to file either married filing separately (MFS) or head of household (HoH) and claim a personal exemption for your NRA spouse.

However, your spouse won’t need an ITIN simply because you file MFS or HoH, as long as you’re not claiming a spousal exemption. In such case, you can simply write “NRA” instead of an ITIN on your return. (Note: this option may not be available if you efile).[99]

To apply for an ITIN, see IRS, Individual Taxpayer Identification Number (Oct. 12, 2016), https://www.irs.gov/individuals/individual-taxpayer-identification-number-itin.

Additional Evidence of Income

In many cases, the sponsor or household member’s current income is consistent with the income shown on the most recent tax return. But the sponsor may also include as evidence of income:

  • letter(s) evidencing his or her current employment and income
  • paycheck stub(s) (showing earnings for the most recent six months)
  • financial statements
  • other evidence[100]

Such additional evidence is critical if there have been changes in the source of the individual’s income from what was shown in the most recent tax return.

6.2 Evidence of Assets

The rules allow that if the sponsor is unable to meet the minimum household income requirement, then in the alternative it can be shown that “significant assets” are available to support the sponsored immigrant.[101] The assets can belong to:

  • the sponsor
  • household members who have signed Form I-864A
  • the principal sponsored immigrant

The assets can be listed in Form I-864 at Part 7.[102]

For the assets to be considered “significant” their total value (less any offsetting liabilities) must meet the applicable formula:

  • If the intending immigrant is the spouse or child of a U.S. citizen, “significant” means three times the difference between the sponsor’s household income and minimum income requirement for the household size.[103]
  • If the intending immigrant is an alien orphan, in certain cases, “significant means one time the difference between the sponsor’s household income and minimum income requirement for the household size.[104]
  • In all other cases, “significant” means five times the difference between the sponsor’s household income and minimum income requirement for the household size.[105]

Example of How to Count Assets:

Assume you are petitioning for a parent and your household size is 4:

125% of 2012 Poverty Guideline (48 Contiguous States) $28,812
Sponsor’s Income $20,500
Difference $8,312
Multiply by 5 x 5
Minimum Required Net Value of Assets $41,560

For each asset, the sponsor must submit proof of ownership.[106] The sponsor must also include any liens and liabilities relating to the asset, and a statement indicating date of acquisition, where the asset is located, and the evidence of how the value was determined.[107]

The assets must be “available for the support of” the sponsored immigrant.[108] To qualify as “available,” the assets must be “readily converted into cash within one year”[109] without “undue harm to the sponsor or his or her family members.”[110]

 

There is no requirement that the assets be located in the United States, but beware of foreign laws that limit the amount of cash or liquid assets an individual may transfer abroad. Such laws may prevent foreign assets from being made “available for the support of” the intended immigrant in the United States.[111]

Examples of assets include but are not limited to:

  1. Savings account: Submit either bank statements covering the last 12 months or a bank letter from an officer of the bank including deposit/withdrawal history for the last 12 months, and current balance.[112]
  2. Stocks
  3. Bonds
  4. Individual retirement account (IRA)
  5. 401(k) retirement account
  6. Certificates of deposit
  7. Real estate: The appropriate proof of ownership may be the deed. The net value must be determined by a recent appraisal by a licensed appraiser, as well as evidence of the amount of any outstanding mortgage, trust deed, or other lien on the home.[113]
  8. Vehicle: If the sponsor is counting a vehicle as an asset, he or she must own at least one more working automobile that is not included.[114] In estimating the current worth of a vehicle, the “blue book” value should be the standard measurement. The appropriate proof of ownership is the vehicle title.
  9. Other personal property: Appropriate proof of ownership may be the sales receipt or other proof of purchase.

7. Organizing the Documents to Be Filed

 

7.1 Documents to File

Each sponsor or joint sponsor, should include the following documents in support of the affidavit of support:

  1. Form I-864 or I-864 EZ.[115] You may use the shorter EZ form if[116]:
    1. You are the Form I-130 petitioner;
    2. You are filing the affidavit of support only on behalf of the “principal” beneficiary (i.e., the person named as the beneficiary of the immigrant petition), as opposed “derivative” beneficiaries (i.e., the spouse or children of the “principal”); and
    3. “The income you are using to qualify is based entirely on your salary or pension and is shown on one or more Forms W-2 provided by your employer(s) or former employer(s).”[117]
    4. “If a joint sponsor is used, the petitioner may not use Form I-864EZ.[118]
  2. If you are a joint sponsor or substitute sponsor, include evidence of U.S. citizen, national, or permanent resident status.
  3. If you are a substitute sponsor, include evidence of your relationship to the sponsored immigrant.
  4. Your IRS-issued tax return transcript[119] or a photocopy of your tax return for the most recent year. The transcript is preferable, but if you submit a photocopy of your return:
    1. If you filed on paper; the IRS Form 1040 should include your signature(s);
    2. If you e-filed, you should submit the IRS acknowledgment that they received your return, including the “submission ID number.”[120] If you used a tax preparer to e-file, you may have received or may request from the preparer an IRS Form 9325, Acknowledgment and General Information for Taxpayers Who File Returns Electronically.[121] If you self-prepared your tax return, you may have received an acknowledgment directly from IRS; and
    3. you should also submit as initial evidence copies of all schedules filed with each return and all Forms W-2 and Forms 1099 in meeting the income threshold.
  5. You may, at your option, submit federal tax transcripts or returns for the second and third most recent years if these additional may help in establishing ability to meet the minimum income requirement.
  6. If, as explained above, you had no legal duty to file a Federal income tax return for one of the three years, you must provide a written explanation.
  7. You may also include as initial evidence of income: letter(s) evidencing current employment[122] and income, paycheck stub(s) (showing earnings for the most recent six months), financial statements, or other evidence of your anticipated household income for the year in which the intending immigrant files the application for an immigrant visa or adjustment of status. Such evidence is critical if there have been changes in the sponsor’s income from what was shown in the most recent tax return.
  8. If relying on assets, submit evidence as outlined above.
  9. Evidence of your U.S. domicile. In most cases, to prove U.S. domicile, submit copies of a state driver’s license or ID card and a few recent utility bills. If you’ve been residing abroad, see above for suggested evidence.
  10. If you are on active duty in the U.S. Armed Forces and are sponsoring your spouse or child, submit proof of your active military status.
  11. If you will be relying on the assets or income of a household member, then submit:
    1. Form I-864A, Contract Between Sponsor and Household Member, where specified above.
    2. proof the household member resides with the sponsor and is related to the sponsor, if they are neither an intending immigrant nor listed as a dependent on your most recent year’s Federal income tax return; and
    3. a copy of his or her individual Federal income tax return, including W-2 and 1099s, for the most recent tax year, or evidence that they were not required to file. You may optionally submit this information for the most recent 3 years if you believe it will help you qualify. And you may submit additional evidence of income, as specified above.

Note on signatures for Forms I-864, I-864A, I-864W, and I-864EZ: The State Department has announced that “original or ‘wet ink’ signatures are no longer required” on these forms. Instead, the form can be signed as usual, then scanned, and a photocopy can be submitted. But an electronic signature is not acceptable.[123] Forms submitted to USCIS should still contain original signatures.[124]

7.2 Completing Form I-864 for Multiple Beneficiaries

Each “principal” beneficiary must submit a separate Form I-864 bearing an original signature. The term “principal” beneficiary means the person on whose behalf the petition has been filed, as opposed to their spouse or children, who are called “derivative” beneficiaries.

All derivative beneficiaries who will accompany (i.e., immigrate at the same time or within six months of) the principal beneficiary must be included in the principal’s Form I-864.

Accompanying derivative beneficiaries should submit a photocopy of the Form I-864 submitted for the principal but not submit extra copies of the supporting documentation.[125]

7.3 Government Requests for Additional Documents

The conditions under which the government may request additional documents are different for immigrant visa applicants and Form I-485 applicants.

For immigrant visa applicants, the validity of Form I-864 or Form I-864-EZ is indefinite from the time the sponsors and contributing household members have signed Form I-864, Form I-864-EZ, and Form I-864-A. The affidavit of support is based on the Federal Poverty Guidelines in effect at the time of its submission.[126] But the government may request additional documentation in the following situations:

  • if the affidavit of support or tax return reflects insufficient income based on the year the affidavit of support was submitted, then the officer may request additional evidence of income from current employment or self-employment or other sources; or
  • if the officer has a “specific reason (other than the passage of time)” to question the veracity of the income stated in the affidavit of support.[127]

If the officer determines that additional documentation is required, then the sufficiency of the sponsor’s current year income will be governed by the current poverty guidelines.[128]

For Form I-485 applicants, the general rule is that the sufficiency of an affidavit of support is based on the sponsor’s anticipated income and the poverty guidelines for the year in which the Form I-864 was filed.[129] But the USCIS may request additional documentation in two situations:

  • if (a) the most recent income tax return, the anticipated household income listed for the year the sponsor signed the Form I-864, and the evidence for the income for the year of filing “all” show an income that is insufficient for the poverty guidelines effective when the Form I-864 was filed; and (b) a joint sponsor has not filed a sufficient Form I-864; or
  • at least one year has elapsed since the Form I-864 was submitted, and the facts in the case, as supported by the evidence in the record, provide a “specific reason (other than simply the passage of time) to believe” that the sponsor’s income is no longer sufficient.

In such cases, USCSI may issue a request for evidence of the current year’s income and determine its sufficiency based on the poverty guidelines in effect on the date the request for evidence is made.[130]

8. Sponsor’s Legal Obligations

This part describes the legal obligations of a sponsor (including a joint or substitute sponsor) who has submitted a Form I-864.

8.1 Legally Enforceable Contract

The sponsor’s contractual obligations under the affidavit of support begin when the intending immigrant obtains permanent resident status based on the affidavit.[131] Therefore, the sponsor may withdraw the affidavit at any point before the intending immigrant is granted permanent resident status.[132]

A Form I-864 will be legally enforceable against the sponsor in a law suit brought by either the sponsored immigrant or a federal, state, or “other entity” that provides a means tested benefit to the sponsored immigrant.[133] In other words, the sponsored immigrant can sue the sponsor to enforce the maintenance agreement. And, if the immigrant ever obtain a means tested benefit, the agency or entity that provided it can also seek reimbursement from the sponsor.

Enforceable by the Sponsored Immigrant

The sponsored immigrant can require the sponsor to maintain him or her at the minimum income level.[134] That level appears to be 125% of the federal poverty guidelines for a family size of one person,[135] which is $14,850 for 2016 in all states except Hawaii or Alaska.[136] The sponsor can provide either cash or in-kind benefits (e.g., housing, food, or clothes). If the sponsored immigrant’s income falls below the minimum income level, a right to sue arises.[137] The sponsored immigrant may also recover reasonable attorney fees incurred in enforcing the support obligation.[138]

The sponsor may be able to reduce the amount of support by any income or benefits the sponsored immigrant is receiving from other sources, such as employment income.[139]

Precedent is mixed as to whether any court award would be reduced if the sponsored immigrant “fails to mitigate” by looking for work.[140]

Enforceable by a Federal, State, or Other Entity

If the sponsored immigrant receives a “means-tested benefit,” the agency or entity that provided it may seek reimbursement from the sponsor. So if the immigrant suffers a debilitating injury or illness, the sponsor could be required to reimburse the full amount of any means-tested medical, cash, or in-kind benefits paid by the government agency or entity.

The term “federal means-tested program” has been defined to include only five programs:

  • food stamps for adults
  • Temporary Assistance for Needy Families (TANF)
  • Medicaid (nonemergency)
  • the Children’s Health Insurance Program (CHIP), and
  • Supplemental Security Income (SSI).

Each state is also encouraged to identify all state programs that satisfy the definition of means-tested, and to issue public notices of those determinations.

Certain federal means-tested programs, such as emergency Medicaid and school loans and grants, are exempt from the sponsor reimbursement requirement. Also exempt are immunizations or testing and treatment for communicable disease symptoms (outside of Medicaid), short-term noncash emergency aid, school breakfast or school lunch, Head Start, student financial aid, Job Training Partnership Act programs, certain noncash services that are available regardless of income, or many other programs that have not been named as “means-tested” benefits.

In states that choose to provide Medicaid and CHIP to children and pregnant women regardless of their date of entry, sponsors do not need to repay the cost of health services received by these groups. And, sponsors who are receiving food stamps do not need to repay the cost of food stamps received by the sponsored immigrant.[141]

It is unlikely that a sponsored immigrant will qualify for many means-tested benefit programs during the contract. This is because in most states immigrants will be barred from receiving benefits from these programs for five years after obtaining permanent resident status.

Waiver or Indemnification

Would any of the following waivers or indemnifications be permissible?

  1. The sponsored immigrant waives the right to sue the sponsor (or joint sponsor or household member) for support.
  2. The sponsored immigrant indemnifies the sponsor (or joint sponsor or household member) so that if a government entity were to sue the sponsor for reimbursement of benefits the sponsored immigrant will guarantee to repay the sponsor.
  3. The sponsor indemnifies the joint sponsor or household member so that if the sponsored immigrant sues for support or a government entity sues for reimbursement of benefits the sponsor will guarantee to repay the joint sponsor or household member.

There are apparently some situations where a sponsored immigrant can waive the right to sue the sponsor for support. DHS commentary states that “[i]f the sponsored immigrant is an adult, he or she probably can, in a divorce settlement, surrender his or her right to sue the sponsor to enforce an affidavit of support.”[142]

What’s less clear is whether a waiver or indemnification as part of a prenuptial or postnuptial agreement is enforceable. To date, only unpublished decisions have addressed this issue. These cases all involved general waivers of support not specifically mentioning the I-864. And most hold that such agreements are not enforceable.[143] One rationale is that an I-864 modifies a prior nuptial agreement waiving support.[144] It seems this could be resolved by drafting the agreement to specify an intention that it not be modified by a subsequent I-864. A second rationale is that it would be contrary to public policy to allow a sponsor to avoid the support obligation: that would make it more likely that the sponsored immigrant would become a public charge, which is exactly what the I-864 was designed to avoid.[145]

In sum, a waiver or indemnification is a possible way to protect a sponsor, joint sponsor, or household member, but there is some precedent that such agreements are unenforceable.

Note that the I-864 is a contract between the sponsor and the Federal government. A waiver or indemnification agreement between private parties can’t eliminate the government’s right to sue on the contract: the “sponsored immigrant and the sponsor (or joint sponsor) may not . . . alter the sponsor’s obligations to DHS and to benefit-granting agencies.”[146]

8.2 Termination of the Contract

The liability of the sponsor executing a Form I-864 terminates only on one of the following occurrences:[147]

  1. The sponsored immigrant becomes a U.S. citizen;
  2. The sponsored immigrant earns or can be credited with a total of 40 qualifying quarters, as defined by social security law. Note that the sponsored immigrant can be credited with quarters worked by a spouse during the marriage, but not quarters worked by a prior spouse after divorce[148];
  3. The sponsored immigrant dies;
  4. The sponsored immigrant loses or abandons LPR status and departs from the U.S.[149];
  5. The sponsored immigrant is ordered removed but readjusts status in immigration proceedings through submission of a new Form I-864; or
  6. The sponsor dies.[150]

A divorce will not nullify the sponsorship agreement. Thus, a spouse who sponsors an immigrant will remain liable under the affidavit until one of the above conditions occur. In divorce proceedings, state courts have fashioned spousal support orders that include support per the Form I-864.[151]

Nor are affidavit of support obligations discharged in in bankruptcy, if owed to a spouse, former spouse, or child.[152]

Note that there is no requirement that the sponsored immigrant, or any federal agency, notify the sponsor when any of the above conditions have been satisfied. As a result, there may be no easy way for the sponsor to learn when his or her obligations or liability under the I-864 have ended. Information regarding the sponsored immigrant’s, or his or her spouse’s or parent’s, earnings record on file with the Social Security Administration are protected by the federal Privacy Act.[153] Comparable information regarding the sponsored immigrant’s eligibility for, or obtaining, naturalization may be similarly blocked. While USCIS will provide automated information to agencies and entities that will facilitate their enforcing the sponsor’s obligation to reimburse the cost of means-tested programs, there is no equivalent exchange of information to a sponsor defending against those actions or maintenance actions brought by the sponsored immigrant.

8.3 Notification of Change of Address

Sponsors also have a continuing obligation to inform USCIS and the state where the sponsored immigrant is residing within 30 days of changing their address, or else be subject to stiff civil fines. Only persons who execute the I-864 are required to file the change of address form—not those who execute the I-864A. Potential fines range from $250 to $2,000 for the first failure to report; if the failure is with knowledge that the sponsored immigrant has received a means-tested program, then the fines increase to between $2,000 and $5,000.[154] USCIS has created a form specifically for this purpose—Form I-865, Sponsor’s Notice of Change of Address. The sponsor completes the one-page form and mails it to the USCIS service center that has jurisdiction over the sponsor’s new address.

9. Household Member’s Legal Obligations

A household member who signs a Form I-864A must agree to be jointly and severally liable for any reimbursement obligation that the sponsor may incur. They are also jointly and severally liable on a claim brought by either the sponsored immigrant or any agency or entity that provides a means-tested program to the sponsored immigrant. They must submit to the personal jurisdiction of any court hearing the matter. The sponsor may commence a legal action against any of the household members to enforce the I-864A, as may the sponsored immigrant and any agency or entity that provides a means-test benefit program to the sponsored immigrant.[155]

A household member’s obligations under the I-864A terminate when the sponsor’s obligations terminate.

As mentioned above, a household member does not have an obligation to file the Form I-865, Sponsor’s Notice of Change of Address.

10. Can a Sponsored Immigrant Receive Public Benefits?

Yes. Immigrants whose sponsors signed “enforceable” affidavits may get certain benefits. Immigrants who have been in the country for less than 5 years generally are not eligible for the five federal “means-tested public benefits”:

  • food stamps for adults
  • Temporary Assistance for Needy Families (TANF)
  • Medicaid (nonemergency)
  • the Children’s Health Insurance Program (CHIP), and
  • Supplemental Security Income (SSI).

There are additional restrictions in SSI. However, these immigrants are eligible for emergency Medicaid and most other federal benefits. States can choose to provide Medicaid and CHIP to lawfully residing children and pregnant women regardless of their date of entry, without sponsor-related barriers. In some states, immigrants can get state-funded medical, food, or cash assistance.[156]

Even after the 5-year bar, “deeming” of income may still impede most immigrants from qualifying for means-tested programs. This means that the income of the sponsor, as well as of the sponsor’s spouse, will be “deemed” to belong to the sponsored immigrant, thus making the latter financially ineligible for the benefit program. An immigrant could be eligible, nevertheless, in three situations: (1) the sponsor’s and immigrant’s combined incomes are low enough to satisfy financial eligibility guidelines; (2) the sponsor is not providing any income and the immigrant would otherwise go without food or shelter; or (3) the immigrant spouse or child has been the victim of battery or extreme cruelty.

  1. INA § 212(a)(4)(A).
  2. 8 C.F.R. § 213a.2(c)(2)(iii)(A).
  3. INA §§ 212(a)(4)(B), (D).
  4. INA § 213A(a)(1). The form and instructions are available from USCIS at http://www.uscis.gov/i-864.
  5. 8 C.F.R. § 213a.2(c)(2)(II)(C).
  6. INA § 213A(f)(1)(E). See 8 C.F.R. § 213a.2(c)(2).
  7. 8 C.F.R. § 213a.2(c)(2)(iii)(A).
  8. 9 FAM 40.41 N2.
  9. INA § 212(a)(4)(B).
  10. 9 FAM 40.41 N2.1.
  11. 9 FAM 40.41 N2.2.
  12. 9 FAM 40.41 N2.2.
  13. 8 C.F.R. §§ 213a.1, 213a.2(b)(2); Cable, DOS, 98-State-042068 (Mar. 12, 1998), published on AILA InfoNet at Doc. No. 98031291.
  14. 9 FAM 40.41 N3.4-1 (b) (Dec. 3, 2008). If the immigrant fits into one of these subcategories, then according to 8 C.F.R. § 213a.2(a)(2)(ii), the requirement that a qualified sponsor file an I-864 “shall not apply.”
  15. 8 C.F.R. § 213a.2(a)(2)(ii)(C); Form I-864 Instructions at 1 (July 2, 2015). The policy behind this exemption is that the support requirement is no longer enforceable once the immigrant can be credited with 40 qualifying quarters of coverage. INA § 213A(a)(3).
  16. See SSA, How International Agreements Can Help You, https://www.ssa.gov/pubs/EN-05-10180.pdf. (last viewed Jan. 8, 2017).
  17. A stepchild may be credited with a stepparent’s quarters. 20 CFR § 404.357: “Who is the insured’s stepchild? You may be eligible for benefits as the insured’s stepchild if, after your birth, your natural or adopting parent married the insured. You also may be eligible as a stepchild if you were conceived prior to the marriage of your natural parent to the insured but were born after the marriage and the insured is not your natural parent. The marriage between the insured and your parent must be a valid marriage under State law or a marriage which would be valid except for a legal impediment described in § 404.346(a). If the insured is alive when you apply, you must have been his or her stepchild for at least 1 year immediately preceding the day you apply. For purposes of determining whether the conditions of entitlement are met throughout the first month as stated in § 404.352(a)(2)(i), you will be considered to meet the one year duration requirement throughout the month in which the anniversary of the marriage occurs. If the insured is not alive when you apply, you must have been his or her stepchild for at least 9 months immediately preceding the day the insured died. This 9-month requirement will not have to be met if the marriage between the insured and your parent lasted less than 9 months under one of the conditions described in § 404.335(a)(2)(i)-(iii).”
  18. For years prior to 1978, the determination for wages actually applied to the four separate quarters of the year (the 3 month periods ending March 31, June 30, September 30, and December 31).
  19. Social Security Administration, Quarter of Coverage, https://www.ssa.gov/oact/COLA/QC.html (last visited Nov. 25, 2015).
  20. A Federal means-tested benefit is any public benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds defines as a Federal means-tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193). Federal means tested benefits include: SSI (Supplemental Security income), TANF (Temporary Assistance for Needy Families), food stamps, Medicaid, and State Child Health Insurance Programs (SCHIP). AFM § 20.5(o).
  21. See Martin on Social Security § A 400, available at http://www.law.cornell.edu/socsec/martin/2socseca.htm.
  22. 8 C.F.R. § 213a.2 (a)(2)(ii)(C); 9 FAM 40.41 N3.4-2 (Dec. 3, 2008); NVC website (http://travel.state.gov/visa/immigrants/info/info_3198.html); 9 FAM 40.41 PN3. (July 14, 2006); DOS Cable, Immigrant Visa Petitions: 40 Quarters SSA in Lieu of I-864 (Feb. 22, 2002), AILA Infonet Doc. # 02022233.
  23. 9 FAM 40.41 PN3 (July 14, 2006).
  24. U.S. Dep’t of State, Fees for Visa Services, http://travel.state.gov/content/visas/en/fees/fees-visa-services.html (last visited Nov. 26, 2015).
  25. See generally U.S. Dep’t of State, Begin National Visa Center (NVC) Processing, http://travel.state.gov/content/visas/en/immigrate/immigrant-process/approved/contact.html (last visited Nov. 26, 2015).
  26. INA § 213A(f)(1)(D).
  27. INA § 213A(f)(2).
  28. Form I-864 Instructions at 3 (Sept. 19, 2011); 9 FAM 302.8-2(B)(7) (“[T]he joint sponsor can be a friend or a non-relative who does not reside in and is not necessarily financially connected with the sponsors household.”). See also DC Bar Ethics Opinion 354, Providing Financial Assistance to Immigration Clients Through Lawyer’s Execution of Affidavit of Support on Form I-864 as Joint Sponsor (A lawyer representing an immigrant may not act as a joint sponsor because of the conflict of interest created and because guarantees of financial assistance to clients are prohibited.)
  29. 8 C.F.R. § 213a.2(c)(2)(iii)(C). Since the limit of two joint sponsors is only for “accompanying” derivatives, it would be possible to have a third joint sponsor for derivative relatives who are not “accompanying” because they will be entering the U.S. more than 6 months after the principal beneficiary. Form I-864 Instructions at 3 (Sept. 19, 2011).
  30. Form I-864W Instructions at 2 (July 2, 2015).
  31. If the widow(er) is the beneficiary of a pending or approved I-130 at the time of the U.S. citizen spouse’s death, the I-130 “converts” into an I-360. 8 C.F.R. § 204.2(i)(1)(iv).
  32. INA §201(b)(2)(A)(i); 8 C.F.R. § 204.2(b)
  33. 8 C.F.R. § 204.2(b)(4); 9 FAM 42.42 N5.1.
  34. Memo from Donald Neufeld, Acting Assoc. Dir., USCIS, Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (REVISED), HQDOMO 70/6.1.1-P (Dec. 2, 2009).
  35. INA § 204(l).
  36. INA § 213A(f)(5)(B).
  37. 8 C.F.R. § 205.1(a)(3)(i)(C).
  38. INA § 213A(f)(5)(B); 9 FAM 40.41 N6.4(a).
  39. See 22 C.F.R. § 40.1(a)(1), defining an “accompanying” derivative beneficiary as one issued an immigrant visa within 6 months of the principal’s immigrant visa issuance or adjustment of status; 9 FAM 40.1 N7.1 (defining “following to join”).
  40. If the principal has died or lost status, or the relationship between the principal and derivative has been terminated, there is no longer a basis to following to join. 9 FAM 40.1 N7.1.
  41. 9 FAM 40.41 N6.4(b); 9 FAM 40.41 N10.2; AFM 20.5(d)(6)(B).
  42. INA § 213A(f).
  43. 8 C.F.R. § 213a.2(c)(ii)(B).
  44. Form I-864 (rev. July 2, 2015), at 4.
  45. INA § 101(a)(33).
  46. 8 C.F.R. § 213a.1.
  47. 8 C.F.R. § 213a.2(c)(ii)(A); Form I-864 Instructions at 5 (July 2, 2015).
  48. AFM ch. 20.5(d)(2)
  49. 9 FAM 302.8-2(B)(5).
  50. Form I-864 Instructions at 6 (Sept. 19, 2011).
  51. INA §§ 316(b), 317.
  52. 8 C.F.R. § 213a.2(c)(1)(ii); AFM ch. 20.5; 9 FAM 40.41 NN7, 7.2.
  53. See Legal Opinion, Rees, General Counsel, HQ 319-C (Feb. 23, 1993), reprinted in 72 No. 33 Interpreter Releases 1154, 1178–83 (Aug. 28, 1995) (providing a broad reading to term “trade and commerce”); Legal Opinion, Martin, General Counsel, HQ 319-P (Sept. 14, 1995), reprinted in 73 No. 14 Interpreter Releases 437, 449–53 (Apr. 8, 1996) (the company’s ownership must be more than 50% American).
  54. 8 C.F.R. § 319.2(a)(1).
  55. 8 C.F.R. § 213a.2(c)(ii)(A); 9 FAM 40.41 N6. But see Form I-864 Instructions at 6 (Sept. 19, 2011) (not requiring evidence of temporariness). See also Gary Chodorow, Avoiding Abandonment of LPR Status: Best Practices and Worst Case Scenarios, Part 6.1 (Oct. 21, 2010), discussing how even indefinite employment abroad for a U.S. company may count as “temporary” for purposes of preserving permanent residence.
  56. I-864 Instructions at 3.
  57. 8 C.F.R. § 319.11(a), related to the documentary evidence for expeditious naturalization, requires actually requires the applicant’s statement of intent, but in practice our firm has found a statement by the employer of the U.S. citizen to be more helpful.
  58. 8 C.F.R. § 213a.2(c)(ii)(B).
  59. Form I-864 Instructions at 6 (Sept. 19, 2011). See 9 FAM 302.8-2(B)(5).
  60. Form I-864 Instructions at 6 (Sept. 19, 2011); 9 FAM 302.8-2(B)(5).
  61. 8 C.F.R. § 213a.2(c)(2)(iii)(A).
  62. 8 C.F.R. § 213a.2(c)(2)(ii)(C).
  63. Or 100% for a petitioner who is on active duty in the U.S. Armed Forces (not in training) and is sponsoring a spouse or child. 9 FAM 40.41 N5.
  64. 8 C.F.R. § 213a.1; FAM 40.41 N7.1.
  65. Form I-864 Instructions at 6 (July 2, 2015). Special rules apply to determine if a stepchild, child born out of wedlock, or adopted child should be counted here. See INA § 101(b)(1).
  66. Id.
  67. Http://www.uscis.gov/i-864p.
  68. As mentioned above, the threshold for certain petitioners who are on active duty in the U.S. Armed Forces is 100% of the poverty line.
  69. See the Form I-864P for the figures that apply to Alaska, Hawaii, and active members of the U.S. armed forces (not in training).
  70. 8 C.F.R. § 213a.2(c)(2)(ii)(C)
  71. 8 C.F.R. § 213a.1; I-864 Instructions at 8 (July 2, 2015). See 8 C.F.R. § 213a.2(c)(2)(iii)(A) (sponsor must calculate his or her “total income.”)
  72. 8 C.F.R. § 213a.1; 9 FAM 40.41 N5.5-1. If a joint income tax return is filed by the sponsor, the “total income” to list on I-864 #25 is still line 22, i.e., the amount for the couple, but the sponsor needs to be able to prove (e.g., through a W-2) what his individual income is. AFM 20.5(k)(4)(D); 9 FAM 302.8-2(B)(13)(e)(3)(d)(iii).
  73. 71 Fed. Reg. 35732, 35738 (June 21, 2006) (“The sponsor may, of course, rely on retirement benefits, unemployment compensation, workman’s compensation, or other benefits that the sponsor has received, that must be included as taxable income.”); See also Memo from Michael Yates, Acting USCIS Director for Domestic Ops., Consolidation of Policy Regarding USCIS Form I-864, Affidavit of Support (HQRPM 70/21.1.13), 13 (June 27, 2006) (“Earned benefits such as Social Security retirement, Unemployment Compensation, and Workman’s Compensation may be included as income.”).
  74. Form I-864 Instructions at 7 (July 2, 2015). Alimony is taxable income. IRS Publication 504, Divorced or Separated Individuals (2015). Child support is not taxable income. Id. Since child support is not shown in the taxable income section of the Form 1040, separate evidence should be provided. It’s curious that the Form I-864 instructions allow child support to be counted, since “income” is defined as being taxable income. 8 C.F.R. § 213a.1; I-864 Instructions at 8 (July 2, 2015).
  75. Form I-864 Instructions at 3 (Sept. 19, 2011).
  76. 8 C.F.R. § 213a.1; Form I-864A Instructions at 1-2 (July 2, 2015); AFM 20.5(i)(3) (mentioning the age requirement).
  77. 8 C.F.R. 213a.2(c)(2)(i)(C)(3); Form I-864 Instructions at 9 (July 2, 2015).
  78. 8 C.F.R. § 213a.2(c)(2)(iii)(A).
  79. 8 C.F.R. § 213a.2(c)(2)(ii)(C).
  80. Or 100% for a petitioner who is on active duty in the U.S. Armed Forces (not in training) and is sponsoring a spouse or child. 9 FAM 40.41 N5.
  81. 8 C.F.R. § 213a.2(c)(2)(ii)(C).
  82. The regulations describe the “current year” as the year in which the intending immigrant files the application for an immigrant visa or adjustment of status. 8 C.F.R. §§ 213a.2(a)(1)(v)(A), (c)(2)(ii)(C). The I-864 instructions are silent on the matter. The USCIS Adjudicators Field Manual refers to both the year the Form I-864 is “signed” and the year it is “filed.” AFM ch. 20.5(e)(1). The State Department’s Foreign Affairs Manual refers to the year the Form I-864 is “submitted.” 9 FAM 40.41 N6.5 (a)(3)(a).
  83. One reason the implementation of these rules has been confusing is that prior versions of the Form I-864 asked the sponsor to report only the income as shown on the most recent Federal income tax return, not the “current” income. See e.g. Form I-864 at 3 (Jan. 21, 2008). As a result, some Forms I-864 were improperly denied without considering evidence of current income that had risen since filing the return. The present version of the Form I-864 does provide more clarity by asking in Part 5 about the sponsor’s “current individual annual income.” E.g. Form I-864 at 3 (Jan. 21, 2008).
  84. George Rodriguez, Charles Wheeler, and Donald Wolfson, Panning for Gold: Affidavit of Support Issues, AILA Immigration Practice Pointers (2013-2014 ed).
  85. 8 C.F.R. § 213a.2(a)(1)(v)(B).
  86. 8 C.F.R. § 213a.2(c)(2)(ii)(C).
  87. Id.
  88. INA § 213A(f)(6).
  89. 8 C.F.R. § 213a.1.
  90. 71 Fed. Reg. 35732, 35738 (June 21, 2006) (supplementary information to final rule on affidavits of support on behalf of immigrants).
  91. 8 C.F.R. § 213a.2(c)(2)(i)(A).
  92. Id. For example, you were self-employed, you should have complete done of the following forms with your return: Schedule C (Profit or Loss from Business), Schedule D (Capital Gains), Schedule E (Supplemental Income or Loss) or Schedule F (Profit or Loss from Farming). Form I-864 Instructions at 8 (Sept. 19, 2011).
  93. 8 C.F.R. § 213a.2(c)(2)(i)(A).
  94. 8 C.F.R. § 213a.2(c)(2)(i)(D).
  95. Form I-864 Instructions at 8 (Sept. 19, 2011).
  96. 8 C.F.R. § 213a.2(c)(2)(i)(B); 71 Fed. Reg. 35731, 35739 (June 21, 2006).
  97. IRS, Taxation of Nonresident Aliens (Oct. 7, 2016), https://www.irs.gov/individuals/international-taxpayers/taxation-of-nonresident-aliens.
  98. Peggy Creveling, An ITIN Primer: Everything You Need to Know About U.S. Individual Tax Identification Numbers, Wall Street Journal (June 18, 2015), http://blogs.wsj.com/expat/2015/06/18/an-itin-primer-everything-you-need-to-know-about-u-s-individual-tax-identification-numbers/.
  99. Creveling, supra, citing IRS Publication 17, Your Federal Income Tax 22 (2015), https://www.irs.gov/pub/irs-pdf/p17.pdf.
  100. 8 C.F.R. § 213a.2(c)(2)(i)(A).
  101. 8 C.F.R. § 213a.2(c)(2)(iii). See INA § 213A(f)(6)(A)(ii).
  102. Form I-864 Instructions a 6 (July 2, 2015).
  103. 8 C.F.R. § 213a.2(c)(2)(iii)(B)(1). See Form I-864 Instructions a 9 (July 2, 2015).
  104. 8 C.F.R. § 213a.2(c)(2)(iii)(B)(2).
  105. 8 C.F.R. § 213a.2(c)(2)(iii)(B)(3).
  106. 8 C.F.R. § 213a.2(c)(2)(iiii)(B).
  107. Form I-864 Instructions at 3 (Sept. 19, 2011).
  108. INA § 213A(f)(6)(A)(ii).
  109. 9 FAM 40.41 PN2.13; see AFM 20.5(k)(5) (same).
  110. Form I-864 Instructions at 3 (Sept. 19, 2011).
  111. Some confusion arises from 9 FAM 40.41 N6.6, which states that assets “must be available in the United States for the applicant’s support and must be readily convertible to cash within one year” (emphasis added). This is best read to mean that it must be possible for the cash value of the asset to be made available in the United States. See DOS Cable # 133584, I-864 Affidavit of Support—Update No. 17: More Q’s and A’s, AILA Doc No. 98072291 (July 22, 1998)(“27. Q: Can the assets of the petitioner/sponsor be overseas, assuming they are readily convertible within 12 months and can be transferred out of the foreign country? A: Yes.”); DOS Cable # 235260, I-864 Affidavit of Support Update No. 2—Q’s and A’s, AILA Doc No. 97122359 (Dec. 17, 1997) (“The applicant must clearly demonstrate the ability to take the money or assets out of the country where they are located. Many countries have strict regulations which severely limit the amount of cash or liquid assets an individual may take or send abroad.”).
  112. USCIS will accept either. AFM ch. 20.5(k)(5)(A). However, the State Department rules mention only a bank letter. 9 FAM 40.41 N4.6-2 (Dec. 3, 2008). The U.S. Consulate in Guangzhou states that they have a “preference” for a bank letter but may accept bank statements. See email from U.S. Consulate in Guangzhou to Gary Chodorow, May 12, 2009.
  113. Form I-864 Instructions at 3 (Sept. 19, 2011).
  114. Form I-864 Instructions at 3 (Sept. 19, 2011).
  115. Some prior editions of the Form I-864 included blanks to be completed by a notary to show that the sponsor signed under oath. However, notarization is no longer required. AFM ch. 20.5(b).
  116. Form I-864EZ Instructions at 1 (July 2, 2015).
  117. Form I-864EZ Instructions at 1 (July 2, 2015).
  118. 9 FAM 302.8-2(B)(4)(c)(2). It is not clear whether USCIS agrees with this State Department requirement.
  119. IRS issues various types of transcripts. See IRS, Transcript Types and Ways to Order Them, https://www.irs.gov/individuals/tax-return-transcript-types-and-ways-to-order-them (Sept. 27, 2016). The consensus is that the “Tax Return Transcript” is most appropriate. See 8 C.F.R. § 213a.2(c)(2)(i)(A) (“transcript of [the] complete Federal income tax return”).
  120. USCIS states that e-filers should submit their IRS-issued “declaration control number.” AFM 20.5(i)(1). That number has been replaced by the “submission ID number.” http://community.hrblock.com/t5/DIY-Products/Submission-ID-Number-vs-Declaration-Control-Number-DCN/td-p/24785#.VphGVtpumUk.
  121. A sample Form 9325 is available at https://www.irs.gov/pub/irs-pdf/f9325.pdf. See also, IRS, ERO Duteis after Submitting the Return to IRS (Oct. 26, 2016), https://www.irs.gov/uac/ero-duties-after-submitting-the-return-to-the-irs.
  122. A letter of employment from the current employer should show the employer’s address, phone number, dates of the employment, nature of the job, yearly salary earned, number of hours per week worked, and prospects for future employment. National Benefits Center-AILA Questions and Answers 9 (May 6, 2016), AILA Doc. No. 16080935. Note that “The prospect of employment in the United States that has not yet actually begun will not be sufficient to meet [the household income] requirement.” 8 C.F.R. § 213a.1.
  123. DOS, Ink Signature No Longer Required on Affidavits of Support (Dec. 28, 2016), AILA Doc. No. 16122801; AILA, DOS Alert: “Wet Ink” Signatures Not Required for I-864, Affidavit of Support (Jan. 10, 2017), AILA Doc. No. 17011033.
  124. The form instructions don’t require an “original” signature. See Form I-864 Instructions at 2 (July 2, 2015) (“Each affidavit must be properly signed and filed. For all signatures on this affidavit, USCIS will not accept a stamped or typewritten name in place of a signature.”). And while a USCIS interim policy allows submission of photocopied signatures for some purposes, USCIS reportedly continues to reject applications for lack of an original signature. AILA, Practice Alert: Forms Still Require an Original Signature (Dec. 12, 2016), AILA Doc. No. 16121230.
  125. 8 C.F.R. § 213a.2(g)(1).
  126. 9 FAM 302.8-2(B)(4)(b)(4).
  127. 9 FAM 302.8-2(B)(4)(f)(1).
  128. Id.
  129. AFM ch. 20.5(e)(1).
  130. AFM ch. 20.5(e)(2).
  131. See 8 C.F.R. § 213a.2(e) (support obligations commence when intending immigrant is granted admission as immigrant or adjustment of status).
  132. 8 C.F.R. §§ 213a.2(e) – (f).
  133. INA § 213A(a)(1)(B). See, e.g., Moody v. Sorokina, 40 A.D.3d 14, 19, 830 N.Y.S. 2d 399 (2007) (holding that trial court erred in determining that I-864created no private cause of action).
  134. INA § 213A(a)(1)(A). See Stump v. Stump, 2005 U.S. Dist. LEXIS 26022 (Oct. 25, 2005).
  135. Erler v. Erler, 2016 U.S. App. LEXIS 10361 (9th Cir. June 8, 2016).
  136. Https://aspe.hhs.gov/poverty-guidelines.
  137. See, e.g., In re Marriage of Sandhu, 41 Kan. App. 2d 975, 207 P.3d 1067 (2009) (holding that beneficiary had no cause of action due to earnings over 125% of the Poverty Guidelines); see also Iannuzzelli v. Lovett, 981 So. 2d 557 (Fla. Dist. Ct. App. 2008) (noting that beneficiary-plaintiff was awarded no damages at trial because she had failed to demonstrate that she had been unable to sustain herself at 125% of the poverty level since her separation from the marriage).
  138. Form I-864; 8 C.F.R. § 213A(c).
  139. But see Erler v. Erler, 2016 U.S. App. LEXIS 10361 (9th Cir. June 8, 2016) (silent on whether support from sponsor should be reduced due to contributions from sponsored immigrant’s adult son for rent and living expenses.
  140. Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) (no duty to mitigate). But see Younis v. Farooqi, 597 F. Supp. 2d 552, 556 (D. Md. 2009).
  141. “Federal Guidance on Public Charge: When Is It Safe to Use Public Benefits?,” www.nilc.org/document.html?id=164.
  142. 71 Fed. Reg. 35732, 35740 (June 21, 2006).
  143. Blain v. Herrell , No. 10-00072 ACK-KSC, 2010 U.S. Dist. LEXIS 76257 (D. Haw. July 21, 2010) (enforceable); Shah v. Shah, Civil No. 12–4648 (RBK/KMW), 2014 WL 185914 (D. N.J. Jan 14, 2014) (unenforceable); Toure-Davis v. Davis, No. WGC-13-916, 2014 U.S. Dist. LEXIS 42522 (D. Md. Mar. 28, 2014) (unenforceable); Erler v. Erler, No. CV-12-2793-CRB, 2013 WL 6139721 (E.D. Cal. Apr. 10, 2014) (unenforceable). See Greg McLawsen, Suing on the I-864 Affidavit of Support: March 2014 Update, 19 Bender’s Immig. Bull. 343, 350-351 (2014).
  144. Toure-Davis, at 15; Erler, at 7, n.1.
  145. Toure-Davis, at 23; Erler at 7; Shah.
  146. 71 Fed. Reg. 35732, 35740 (June 21, 2006).
  147. 8 C.F.R. §§ 213a.2(e)(2)(i)–(ii).
  148. See Davis v. Davis, 2012 Ohio 2088, 970 N.E.2d 1151 (Ohio Ct. App. 2012).
  149. Abandonment or loss of permanent resident status can occur through affirmative misconduct or departure from theU.S. Misconduct could include the commission of crimes, fraud, or other miscellaneous acts. Abandonment through departure depends on the length of time the permanent resident has been absent from the U.S. and his or her intention as to whether the absence is temporary.
  150. On the sponsor’s death, future liability of the sponsor’s estate for actions brought by the sponsored immigrant or agencies seeking reimbursement will likely be a matter of state law interpretation. In any event, the sponsor’s estate is not relieved from liability for any reimbursement obligation that accrued before the sponsor’s death. See 8 C.F.R. § 213a.2(e)(3).
  151. For example, Liu v. Mund, 686 F.3d (7th Cir. 2012) (sponsored immigrant has no duty to mitigate support owed by looking for a job); Love v. Love, 1975 EDA 2010 (Penn. Super. Ct.), citing Naik v. Naik, 399 N.J.Super. 390, 944 A.2d 713 (N.J. Super.2008), Younis v. Farooqi, 597 F.Supp.2d 552 (D.Md.2009); Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal.2008); Barnett v. Barnett, 238 P.3d 594 (Alaska 2010).
  152. Among the types of debts that are excluded from discharge in bankruptcy are “domestic support obligations,” whether owed to support the beneficiary or to the government for benefit reimbursement. 11 U.S.C. § 523(a)(5), 101(14A). Several courts have confirmed this. See e.g. In re Ortiz, 2012 Bankr. LEXIS 5324, 2012 WL 5556935 (Bank. M.D. Fla. 2012); In re Cook, 473 B.R. 468 (Bankr. M.D. Fla. 2012). See also Cheryl Kilborn and Jason Kilborn, Like Diamonds, Affidavits of Support Are (Almost) Forever, AILA Voice (Sept. 2014).
  153. 5 USC §522a.
  154. INA § 213A(d).
  155. 8 C.F.R. § 213a.2(c)(2)(i)(C)(2); Form I-864A, p. 3.
  156. For more details on the immigrant eligibility rules, see National Immigration Law Center, Guide to Immigrant Eligibility for Federal Programs (4th ed. 2002).

46 Replies to “Help Center: Form I-864, Affidavit of Support”

  1. I am currently retired, and I receive social security retirement benefits. Can I count them as “income” for purposes of the I-864?

    1. Scott: Thanks for your question. As mentioned above, only “taxable” Social Security benefits count as income. You can see that above in the excerpt from the Income section of the IRS Form 1040. There are blanks for “Social Security benefits” and “Taxable amount.” Only the latter counts towards “total income” on line 22 of the 1040, which is the key line for determining one’s income for I-864 purposes. Take a look at your 1040 from last year. Assuming it was completed correctly, you can tell how much you claimed was taxable.

  2. Gary: I filed an I-130 for my husband. Now, his immigrant visa appointment at the U.S. Consulate in Guangzhou is coming up, so we’re researching the I-864. We’re living in Shanghai, where my husband works. I’m currently a stay-at-home mom with two young children. I haven’t filed federal income tax returns. I’m looking for a joint sponsor. Do I still need to file my own I-864?

    1. Helen: As the petitioner who filed the Form I-130, you must file a Form I-864 and file federal income tax returns for the three most recent years (if legally required to do so). Moreover, you must prove you meet the other qualificaitons for a “sponsor,” including being domiciled in the U.S.

      I understand that you’re not working, but before you look for a joint sponsor, you may want to see if you and your husband’s assets are sufficient to meet the minimum income requirement.

      If you are unable to meet the minimum income requirement, a “joint sponsor” may also be used. A joint sponsor does not have to be related to the petitioning sponsor or the intending immigrant. The joint sponsor must execute a separate Form I-864. The joint sponsor must satisfy the income requirements independently. In other words, the petitioner and joint sponsor may not pool their income to arrive at a total that satisfies the income threshold.

      Regards,
      Gary

  3. Dear Gary,

    I am a US citizen, married to a UK citizen and currently living in the UK for the past 9 months. We are currently unable to make a decision regarding where we will be settling permanently. However, I want to keep the option open for us settling in the US within the next 3 years and file a greencard for my husband.

    Regarding showing sufficient funds for the Affidavit of Support, could my joint account and funds in the UK count towards that as well or do they have to be funds in the US?

    Many thanks for your help.

    Regards,
    SB

  4. SB,

    As mentioned above, there is no requirement that assets be located in the United States in order to count for I-864 purposes.

    Beware that in some countries laws exist that limit the amount of cash or liquid assets an individual may transfer abroad. Such laws may prevent foreign assets from being made “available for the support of” the intended immigrant in the United States. To my knowledge, that’s not an issue in the UK.

  5. My wife and I been living abroad for 4 years now. Her I-130 for me has been approved, and currently my immigrant visa application is at the NVC stage. We have a house in the U.S. My wife wasn’t required to file U.S. tax returns for the last 3 years and didn’t do so.

    1. Which form do we fill if we will rely on my wife’s assets? What if we will rely on a joint sponsor?

    2. How much trouble will it be that my wife hasn’t filed tax returns?

    Thank you.

    1. Mohammed.

      Your wife, as the petitioner, must file a Form I-864. (The I-864EZ is inapplicable because the income she is relying on is not her employment or retirement income).

      If your wife wants to rely on the value of your jointly owned house as an asset, the appropriate proof of ownership may be the deed. The net value must be determined by a recent appraisal by a licensed appraiser, as well as evidence of the amount of any outstanding mortgage, trust deed, or other lien on the home. Assuming your wife is a U.S. citizen, if you the value of the asset is at least 3x the income threshold for your wife’s household size, no joint sponsor is required. (Use a 5x multiplier if your wife is a lawful permanent resident).

      If your wife will instead rely on a joint sponsor, then she still needs to file an I-864. The joint sponsor will too. In that case, discuss with your attorney the possibility of not listing the house as an asset in your wife’s I-864. That way you could skip the expense of paying for an appraisal.

      If as you mention above your wife had no duty to file Federal income tax returns for the most recent 3 years, she must explain why. If she claims she had no legal duty to file for any reason other than the level of her income for that year, the initial evidence submitted with the Form I-864 must also include any evidence of the amount and source of the income that she claims was exempt from taxation and a copy of the provisions of any statute, treaty, or regulation that supports the claim that she had no duty to file an income tax return with respect to that income.

  6. Hello, thank you for this helpful info. Am I correct in thinking that the I-864 form is filed after the initial 1-130 application package is reviewed? Or, should that be submitted along with the 1-130?

    1. Kristin:

      As mentioned above, the process for family-sponsored immigration normally begins by a U.S. citizen or lawful permanent resident filing a Form I-130, Petition for Alien Relative. The I-130 asks whether the beneficiary will either (a) file a Form I-485, Application to Adjust Status, with USCIS, or (b) apply for an immigrant visa at a U.S. embassy or consulate abroad.

      The I-130 beneficiary may file a Form I-485 with USCIS if he or she is physically present in the U.S. and meets certain other requirements. In that case, the I-864 should be submitted with the Form I-485.

      Otherwise, the I-864 is submitted as part of the immigrant visa application process:

      * If the petitioner resides within the United States, the I-130 is filed by mail with a USCIS lockbox. After the I-130 is approved, it is forwarded to the State Department’s National Visa Center (NVC) for processing. The immigrant visa applicant’s documents and I-864 are submitted to NVC for review for completeness. NVC charges a fee of $120 for the I-864 review.NVC then forwards the file to the U.S. embassy or consulate abroad, where the I-864 will be reviewed by the consular officer as part of adjudicating the immigrant visa application.

      * If the petitioner resides outside the United States, the petitioner may choose to file the I-130 by mail with a USCIS lockbox, in which case the I-864 subsequently will be submitted to NVC as described above. Or the petitioner may file the I-130 with an international USCIS office, U.S. Embassy, or U.S. Consulate. In such cases, after the I-130 is approved, the I-864 will be submitted by the immigrant visa applicant to the consular officer at the time of the immigrant visa appointment.

  7. Hi Gary, My sister (in Chicago) petitioned for my mom (in Philippines). My sister has been notified by immigration authorities that her income is not sufficient to meet the threshold for the Form I-864, Affidavit of Support. Can I be a joint sponsor (I-864) for my mom even though I live in California?

    1. Cristina,

      Your eligibility to serve as a joint sponsor–filing a Form I-864–is not negatively impacted by the fact that you live separately from your sister (the petitioner/sponsor). As a joint sponsor, the only requirement related to your residence is that you must be domiciled in the U.S.

      Note that since you don’t live with your sister (and, I assume, are not listed as a dependent in her most recent Federal income tax return), it’s not an option to file a Form I-864A, Contract Between Sponsor and Household Member.

  8. Hi. I’m filing a K-1 petition for my fiance. My father is supporting my fiance’s stay as I’m in school with no income. Is an I-864 needed?

    1. Meghan,

      No I-864 is needed for your fiancé to get a K-1 visa, but in certain cases a Form I-134, Affidavit of Support, is appropriate. Your father may qualify as the sponsor.

      Following his entry to the U.S. in K-1 status, along with his Form I-485, Application to Adjust Status, you’ll need to file an I-864. If your income doesn’t meet the threshold, your father may qualify as a joint sponsor.

  9. Hi Gary,

    One area which is still not clear to me is the household size calculation. I’m the U.S. citizen, and I filed the I-130 on behalf of my wife. We live in the U.K. My mother will file an I-864 as a joint sponsor. She lives alone. We’ll live with her temporarily when we move to the U.S.

    So the question is, in the calculation of the household size, what would my I-864 have for household size and what would my mother’s be? The confusing part is whether I should include the current household size (for me 2, for my mom 1) or intended household size after arrival (for me 3, mom 3). How do you count this properly?

    1. Jeff K:

      Assuming that you’ve given me complete facts about the household members, here’s how you calculate household size:

      Your household, as shown on your I-864: 1 sponsor + 1 sponsored immigrant = 2.
      Your mother’s household as shown on her I-864: 1 sponsor + 1 sponsored immigrant = 2.

      The fact that you plan to live with your mother in the future does not impact the calculation. Right now you and your mother are not members of the same household.

  10. Hi Gary,
    I am a US citizen and I filed the form I-130 on the behalf of my mom and dad, their petitions were approved.
    I am a stay at home mom and dependent on my husband’s income, he is willing to be the sponsor for my parents, we filed the I-864 A, but the NVC is asking for the following:

    [x] We received your financial evidence form and/or supporting documents. We found that the sponsor or petitioner’s Form I-864, Affidavit of Support is missing. Please complete and submit Form I-864.

    [x] If you were not required to file a federal income tax return under U.S. tax law, attach a written statement indicating why you did not file Federal income tax returns.

    [x] Your {2014} IRS transcript from the most recent tax year. You can get a transcript on the IRS’s website: https://www.irs.gov/individuals/get-transcript. If you cannot get an IRS transcript, please send a photocopy of your federal individual income tax return. If you provide a photocopy, you must include a copy of every Form W-2 and Form 1099 that relates to your return(s).

    [x] Your {2014} IRS tax schedules.

    [x] Your {2014} W-2 forms(s).

    My questions are:
    1- Who needs to fill the form I-864 me the petitioner, or my husband since he is going to be the sponsor?
    2- What are the IRS tax schedules?

    1. Bouchra:

      I understand that your husband filed an I-864A. Nonetheless, as mentioned above, you as the petitioner who filed the Form I-130 are also required to qualify as a “sponsor” and file a Form I-864. The NVC is asking for that.

  11. Hi Gary,

    I am a US citizen. My parents have filed Forms I-485, Applications to Adjust Status, based on approved I-130s I filed for them. I filed Forms I-864 with the I-485s. After graduating medical school, in July 2015 I took a job as a pediatric resident with an annual salary of $56,000.00. With my I-864, I have submitted an official employment letter from the hospital verifying date of employment, nature of my job and annual salary.

    But the USCIS is asking for the following initial evidence as stated here after:

    [1] The petitioner/sponsor on Form I-864 must submit a complete Federal income Tax return submitted to the IRS for the most recent tax year. If you were not required to file a federal income tax return under U.S. tax law, attach a written explanation of why you are not required to file.

    [2] The petitioner/sponsor lists their current income on Form I-864 as an amount to be considered as sufficient; however, no evidence has been submitted as proof of current income. Submit evidence of the petitioner/sponsor’s current income. Such evidences should include: pay stubs for the previous 6 months, evidence of other income, letter of employment containing the following: Dates of employment, Nature of job, Yearly salary earned, Number of hours per week worked, and Prospects for future employment and advancement.

    What do I need to submit to USCIS? In particular, do I need to file Federal income tax returns with IRS? And why is USCIS asking for an employment letter despite the fact that I previously submitted one?

    1. Sankara:

      My understanding from your above comment is that you had very little income prior to July 2015 and that USCIS is seeking further financial evidence from you. I can’t give you reliable legal advice without having interviewed you and reviewed your I-864 and financial evidence. So my only advice is to hire our firm or a competent immigration attorney to give you the legal advice you seek. That said, here’s some general guidelines which may or may not apply to your particular case:

      First, a sponsor is required to have filed tax returns for all three most recent years. (This should include your W-2 and any other pages, sometimes called “schedules,” filed with IRS). Failure to do so will mean that the Form I-864 is insufficient. An exception is that if the individual had no legal duty to file a Federal income tax return, he or she must explain why he or she had no legal duty to a file a Federal income tax return for that year. To check whether one’s income was high enough to require filing a return, a person (or their tax adviser) can check the IRS Form 1040 instructions for the relevant year. Those instructions are available at http://www.irs.gov.

      Second, I know that you submitted a job letter to USCIS and that you’re confused as to why USCIS is asking for another one. Maybe the officer (a) lost your letter, (b) overlooked your letter, (c) believes your letter was insufficient, (d) wants an updated letter, or (e) printed out this request for evidence without proofreading it. Whatever the officer’s rationale, perhaps my advice would be to submit a new letter. Generally speaking, where an officer requests evidence (e.g., a job letter, pay stubs, etc.), and an applicant can provide it, and that evidence helps rather than hurting the case, an applicant should submit it.

  12. Hello
    My wife, the petitioner, is sponsoring her sister. My wife filed tax returns with IRS for 2015, 2013 and 2012. Since she had no income in 2014, she was on my son’s return and was shown as his dependent.

    My question is about Part 6, item 19. What should be 3 Most Recent Tax Years? Can 2014 be skipped and 2013 be shown as 2nd most & 2012 as 3rd most? Your guidance will be helpful. Thanks

    1. Arvind:

      The context and the related form instructions make clear that a “tax year” doesn’t refer to a year you filed a return, but instead an accounting year (i.e., for almost all individuals, the calendar year).

      Q18 asks: “Have you filed a Federal income tax return for each of the three most recent tax years?

      Q19 asks asks for your income “as reported on my Federal income tax returns for the most recent three years.”

      So, your wife’s most recent accounting years are 2015, 2014, and 2013.

      Since your wife filed no return in 2014, as explained above, she must submit an explanation why she had no legal duty to a file a Federal income tax return for that year.[

    1. Isidor,

      To answer your question, let’s break the question down into 2 parts.

      First, if you want to file the I-864 this year, 2016, you need to calculate what your income will be for this year, ASSUMING that you can continue this employment for the rest of the year. Is it sufficient to meet the minimum household income requirement?

      Second, you need to consider whether you can prove it is REASONABLY LIKELY that you will actually keep the job for the rest of the year. As mentioned in supplementary information from USCIS to its rule on I-864s:

      Suppose, for example, that the sponsor recently started a new job after a long period of unemployment. If the sponsor has a reasonable prospect that the employment will continue, then it may well be that the affidavit of support will be sufficient. If, however, the new position is, by its terms, only temporary or seasonal, it would be reasonable to hold that the income is not sufficient to show that the sponsor can reasonably be expected to be able to maintain his or her household income at the income threshold.

    1. Probably. The I-864 Instructions at 7 (July 2, 2015) state that “If your claimed income includes alimony, child support, dividend or interest income, or income from any other source, you may also include evidence of that income.” Still, that strikes me as odd because child support is not taxable income. IRS Publication 504, Divorced or Separated Individuals (2015). But “income” for I-864 purposes is defined as being taxable income. 8 C.F.R. § 213a.1; I-864 Instructions at 8 (July 2, 2015).

  13. Hi Gary,

    Can someone who was never filling tax returns (he had no legal duty to do so because he was not working) be a joint sponsor? Few weeks ago that person got a first job in the US and is making enough money to meet the minimum household income requirement.

    Basically I want to ask if someone who has no employment history and was not filling taxes so far can be a joint sponsor.

    1. Arthur:

      As mentioned above, if an individual had no legal duty to file a Federal income tax return for a particular year, he or she must explain why. But that doesn’t disqualify the individual from filing an I-864.

      Further, if the individual with no record of employment just got a job, that income can still be used as evidence of the individual’s current individual annual income.

      As mentioned above, if the individual recently started a new job after a long period of unemployment, the immigration official must determine whether the individual has a reasonable prospect that the employment will continue. For example, if the new position is, by its terms, only temporary or seasonal, it would be reasonable to hold that the income is not sufficient to show that the sponsor can reasonably be expected to be able to maintain his or her household income at the income threshold. So the individual should consider providing a job letter, employment contract, and/or other evidence showing that the job isn’t just temporary or seasonal.

  14. Hi Gary,

    Can a sponsored immigrant’s assets (e.g., bank deposits) be counted to help meet the minimum income requirement?

  15. Mr. Gary

    My future wife is going to be my sponsor as an American Citizen. The problem here is that she’s been living almost her entire life here in Chile. She does not have a residence there, since she’s been living here. How we can proceed if we want to move there? We are saving money to do that and we both are professionals (pharmacist).

    Thank you!

    1. See the section above on Re-establishment of Domicile in the U.S. The requirement is that your wife move to the U.S. not later than when you enter the U.S. for the first time with the immigrant visa. What requires further thought is how to prove that in your particular situation–evidence of where she will live, where she will work or go to school, etc.

  16. Hello,

    What does one need to do if co-sponsor decides to withdraw their affidavit of support before I-485 has been approved? Also, what would one need to do if I-485 has been approved?

    Thank you.

    1. Alejandro: A sponsor can withdraw an I-864 only prior to the sponsored immigrant being granted permanent residence through approval of an I-485 or entry to the U.S. with an immigrant visa. Written notice should be provided to the agency where the I-864 is pending. After permanent residence has been granted, it’s too late to withdraw–the sponsored immigrant has already received the benefit, so the sponsor is subject to the I-864 obligations.

  17. Hi Gary,
    I am a US citizen currently living in Jordan. The U.S. Embassy in Amman has approved the I-130s I filed on the behalf of my wife and two kids (both under 18). They are now applying for immigrant visas.

    I and now receiving lifetime retirement benefits from the social security department, but my annual income is a little short of the minimum required income threshold. My wife is currently working but will be terminating her employment once we get the final immigration approval, at which time she will be entitled to lifetime social security benefits.

    I have assets in Jordan in the form of property (both residential and commercial) with value far exceeding the required 3x the income threshold.

    1. Can I count my Jordanian social security benefits as income?

    2. Can my wife act as joint sponsor?

    1. Hi Hasan,

      1. This is the first time I have considered this question. My preliminary analysis is that foreign social security benefits should count as income to the extent that they are taxable in the U.S. If you are filing your I-864 in 2017, then calculate what your 2017 taxable income from foreign social security benefits will be. Ask your tax advisor for assistance with the calculation.

      2. Your wife can’t be a joint sponsor because she doesn’t meet the requirement of being a U.S. citizen, national, or permanent resident. But your wife’s income could be counted as a household member, if her income will continue from the same source after becoming a permanent resident. This may not be helpful to you because her foreign employment income will end when she becomes a permanent resident and she hasn’t yet begun receiving Jordanian social security income.

      So you may want to consider relying on you and your wife’s assets. Start by calculating the amount you have in bank or investment accounts. Then, consider using the real estate. See the above article for what evidence you will need of ownership and the value of the real estate.

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