Welcome to the 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: 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: The below guide includes 150+ footnotes with references to legal authorities.|
|Ask Questions: You are welcome to ask questions of a general nature in the Comments section below.|
|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.
- 1. Introduction
- 3. Is a Form I-864 Needed in Your Case?
- 4. Qualifying as a Sponsor
- 4.1 Petitioner
- 4.2 Joint Sponsor
- 4.3 Death of the Petitioner
- 4.4 Requirements to Qualify as a Sponsor
- 4.5 The Domicile Requirement Explained
- 5. Calculating Whether You Meet the Minimum Income Requirement
- 6. Proving Income and Assets
- 7. Filing and Government Review of the Form I-864
- 8. Sponsor’s Legal Obligations
- 9. Household Member’s Legal Obligations
- 10. A Joint Sponsor’s Financial Data Can Be Kept Confidential from the Sponsored Immigrant(s) and Other Sponsor(s)
- 11. Can a Sponsored Immigrant Receive Public Benefits?
The Form I-864 is a contract with the U.S. Government in which a sponsor promises to provide support to maintain a 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.
The sponsor must normally show that his or her current year’s household income is and future income likely will be at least 125% of the poverty guidelines. Exceptions are allowed where either:
- the sponsor together with the intending immigrant can show significant assets; or
- a joint sponsor executes a separate affidavit of support.
The Immigration and Nationality Act (INA) generally provides that applicants for immigrant visas or adjustment of status, are ineligible if they lack a sufficient affidavit of support.
Errors in the Form I-864 and missing supporting documents are common problems in family-based immigration cases. This Guide explains the requirements and procedures to file an affidavit of support. The Guide also explains the legal obligations that a sponsor or household member undertakes with respect to the affidavit of support.
An immigrant visa or adjustment of status applicant is also ineligible if they are likely at any time in the future to become a “public charge,” meaning to receive one or more defined public benefits for more than 12 months in the aggregate within any 36-month period. This issue is discussed in detail in our firm’s separate Public Charge Guide.
The Form I-864 is required, effective December 19, 1997, in the following situations:
- Immigration based on an approved Form I-130, Petition for Alien Relative.
- 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).
- 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.
- 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, an applicant is exempt from the Form I-864 requirement in the situations described in the following section.
The following categories of intending immigrants are exempt from the requirement to submit a Form I-864. Previously, these individuals would have been required to submit a Form I-864W, Intending Immigrant’s Affidavit of Support Exemption, but that requirement has been eliminated.
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.
The intending immigrant is a self-petitioning widow(er), battered spouse, or battered child.
No Form I-864 is required where the intending immigrant can be credited with 40 quarters work in the U.S. within the meaning of the Social Security Act. Social Security credits can be earned by working in the U.S., by working overseas for an American company or its affiliate, by self-employment overseas, or by working overseas in a country that has a Social Security agreement with the United States. 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; 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, 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 generated one quarter of coverage; $4,200, a full four.
Amount of Earnings Needed to Earn One Quarter of Coverage
But a quarter after 1996 can’t be counted if the intending immigrant, parent, or spouse who worked received federal means-tested benefits during that quarter.
Under a 2004 amendment, quarters of coverage are not awarded for work performed in the U.S. by noncitizens who have neither been lawfully issued Social Security numbers nor granted B1 or D visas.
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. The Social Security Statement can be requested online. Start by creating an account at https://www.socialsecurity.gov/myaccount/.
Sample Social Security Statement
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.
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.
The petitioner who filed the Form I-129F, I-130, I-140, I-600, or I-600A must qualify as a “sponsor” and file a Form I-864.
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. A joint sponsor does not have to be related to the petitioning sponsor or the intending immigrant. Nevertheless, there have been numerous reports of affidavits of support by joint sponsors being found deficient because the joint sponsor was not related to the intending immigrant. According to the State Department, consular officers are now assessing the relationship, in particular whether it is such that the joint sponsor intends to comply with the contract, as part of the public charge “totality of the circumstances” analysis. So the most cautious approach is to use a relative as joint sponsor where possible.
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.
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.
A person immigrating as the widow(er) of a U.S. citizen is exempt from the Form I-864 requirement.
- the couple was married (and not legally separated) at the time of the spouse’s death;
- the spouse was a U.S. citizen at the time of death (not necessarily during the whole period of the marriage);
- the widow(er) has not remarried before acquiring permanent resident status.
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.
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.
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.
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.
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.
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.
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.
The requirements to qualify as a sponsor (including a joint or substitute sponsor) are that an individual must be:
- a U.S. citizen, national, or permanent resident;
- age 18 or older; and
- “domiciled” in the U.S., including any U.S. territory or possession.
Part 4, item 5, of the Form I-864 asks a sponsor to list his or her country of domicile: The instructions further specify that if your “mailing address and/or place of residence” is abroad then you must attach an explanation of how you meet the domicile requirement.
The concept of domicile is related to residence, which is defined 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.” You can think of your residence as the place where you sleep most nights. A domicile, in contrast, is a “principal residence” which the sponsor “inten[ds] to maintain” for the “foreseeable future.” 
A person who is residing abroad bears the burden of proving U.S. domicile in one of the following ways:
In General. The sponsor can show they are “residing” abroad temporarily but remain “domiciled” in the United States. The necessary elements are: (a) departure from the U.S. for a limited, and not indefinite, period; (b) an intention to maintain a U.S. domicile at the time of departure; and (c) continuing ties to the U.S.  The State Department lists as examples students, contract workers, and non-governmental organization (NGO) volunteers.
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.
Working Abroad for a U.S. Employer, Public International Organization, or in a Religious Capacity. A U.S. citizen living abroad “temporarily” counts as “domiciled” in the U.S. if their employment “meets the requirements of section 319(b)(1) of the Act” related to expeditious naturalization. Namely, the employment must be by (a) the U.S. Government; (b) an American institution of research recognized by the Attorney General; (c) “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”; (d) a public international organization in which the United States participates by treaty or statute; or (e) certain religious organizations.
Procedurally speaking, the citizen should provide “a written explanation and documentary evidence” of how the domicile requirement is met. 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:
- the name of the employer and nature of the employer’s business;
- 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);
- whether the employing entity is engaged in whole or in part in the development of the foreign trade and commerce of the United States;
- 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
- the anticipated period of employment abroad.
It is sufficient for a sponsor not domiciled in the United States to prove they will establish such domicile not later than the intending immigrant’s admission or adjustment of status. Evidence of intent to establish domicile may include, for example:
- Seeking or accepting employment
- Signing a lease, purchasing a residence, or arranging to stay in another’s home
- Registering children for school or daycare, or arrangements to hire a nanny
- Opening a bank account, transferring funds, or investing
- Moving quotes or signing a contract with a mover
- Money transfers to the U.S. in anticipation of the move
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 an officer may doubt whether a sponsor would necessarily move to the U.S. when a sibling or adult son or daughter immigrates. Where an officer is not satisfied the sponsor intends to establish U.S. domicile in the future, the officer may require evidence the sponsor has actually done so, such as in this consular officer’s request for additional evidence:
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. [Further, 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.
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.
The “minimum income requirement,” also known as the “income threshold,” is calculated as follows: the current year’s household income and future years’ likely household income must be at least 125% of the poverty guidelines for the household size. This requires some explanation.
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:
- “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.”
- “Other dependents” refers to persons besides “dependent children” listed as dependents on your most recent Federal income tax return.
- 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.
USCIS Form I-864P, Poverty Guidelines, show the minimum income required for the household size. The I-864P is effective upon publication (about March 1 of each year) and is based on data from the U.S. Department of Health and Human Services.
125% of the Federal Poverty Line for the District of Columbia and all states except Alaska and Hawaii
Sponsor’s Household Size
For each additional person add
The following definitions are tedious but critical to understand:
USCIS regulations define “income” as the “total income” listed on IRS forms. See:
- Form 1040 (line 7b for 2019; line 7 for 2018; line 22 for earlier years)
- Form 1040A (line 15). This form was discontinued after 2017; or
- Form 1040EZ (line 4, labeled “adjusted gross income”). This form was discontinued after 2017.
Income Section of the 2019 IRS Form 1040
Income Section of the 2014 IRS Form 1040
The Form I-864 at Part 6, item 24, asks for the sponsor’s “total income” as reported on the Form 1040 or 1040EZ for the three most recent years:
The 2019 IRS 1040 shows that “total income” includes:
- Wages, salaries, tips, etc.
- Taxable interest
- Ordinary dividends
- Taxable IRA distributions
- Taxable pensions and annuities
- Taxable Social Security benefits
- Capital gains (or loss)
- “Other income” from Schedule 1, line 9, which includes:
- Taxable refunds, credits, or offsets of state and local income taxes
- Alimony received
- Business income (or loss)
- Other gains (or losses) from Form 4797
- Rental real estate, royalties, partnerships, S corporations, trusts, etc.
- Farm income (or loss)
- Unemployment compensation
- “Other income,” which includes, for example, most prizes and awards, jury duty pay, and gambling winnings
IRS also specifies that certain types of income are nontaxable and therefore should not be counted towards “total income” for tax purposes. Some examples include:
- Child support
- Life insurance proceeds received because of someone’s death (other than from certain employer-owned life insurance contracts)
- Gifts and bequests (except certain gifts from a foreign person)
For further details, see IRS Publication 525, Taxable and Nontaxable Income (Feb. 2020).
Means-tested public benefits, such as food stamps, SSI, Medicaid, TANF, or CHIP are excluded from the definition of income.
Oddly, there is some authority that nontaxable income can be counted as income for I-864 purposes:
- Child support
- Tax-free income (such as a housing allowance for clergy or military personnel) … [is] considered income.
That authority appears to be questionable since nontaxable income is not within the IRS definition of “total income.”
“My current individual annual income” should be listed in part 6, item 7.
(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. 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.)
Calculate this figure as follows:
- Figure out your taxable income: This is not the amount shown on the prior year’s IRS Form 1040. This is your estimate for how you will later fill in the Income section of this year’s Form 1040. I recommend that you take a look at the Income section of your prior year’s Form 1040, delete any income attributable to your spouse, and then use the prior year’s numbers as a starting point to estimate your annual income.
- Do not include any income from employment which you (the sponsor) have not yet started. “The prospect of employment in the United States that has not yet actually begun will not be sufficient to meet [the income] requirement.”
- In making your estimate, 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 your salary is likely to change.
- Add any nontaxable income of the types listed above.
In Part 6, Item 20, fill in “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:
- 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;
- 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
- the intending immigrant, if their income will continue from the same source after becoming a permanent resident and either (a) they have the same address as the sponsor; or (b) they are the sponsor’s spouse. The intending immigrant only needs to sign an I-864A if their 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.)
There is no requirement that the household member be domiciled in the United States.
Calculate these individuals’ annual income using the same method you calculate “my current annual individual income.”
The “minimum income requirement,” also known as the “income threshold,” is that “my current annual household income” and your future years’ likely household incomes must be at least 125% of the poverty guidelines for the household size.
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.” 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.” The sponsor’s three most recent Federal income tax returns are certainly relevant to evaluation to evaluating the sufficiency of future income. 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.
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.
Nowhere mentioned in the rules but possibly relevant are facts indicating that the sponsor’s death or retirement is imminent.
For U.S. citizens and permanent residents employed abroad, if during the last 3 years you claimed a foreign-earned income and housing exclusion (FEIE) on your taxable income (up to $101,300 for 2016), 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.
But, in calculating one’s current annual income for purposes of the Form I-864, one option would be for a sponsor to elect not to claim the FEIE. For some sponsors, this would mean paying more taxes. Others may be able to avoid higher taxes by claiming a foreign tax credit instead of the FEIE. So one tip to avoid needing a joint sponsor may be to calculate one’s current annual income without the FEIE. Probably the calculation would be most persuasive if presented in a letter from a certified public accountant and supported by evidence of the foreign-earned income.
As mentioned above, a sponsor must persuade the government not just that his current household annual income is sufficient, but also that his future household annual income is likely to be sufficient. Low income shown on the sponsor’s 3 most recent Federal income tax returns due to claiming the FEIE would certainly be relevant to evaluation to evaluating the sufficiency of future income, as mentioned above. But the current year’s income should be “given the greatest evidentiary weight” in that determination, as mentioned above. So a sponsor with a stable employment history whose estimated current household individual income is sufficient should be able to submit an acceptable I-864 despite low income shown on recent tax returns due to the FEIE.
The sponsor filing a Form I-864 or the 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. Transcripts are strongly recommended. 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.
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.
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.
An exception applies if the individual had no legal duty to file a Federal income tax return:
- If you were not required to file a Federal income tax return under U.S. tax law because your income was too low, attach a typed or printed explanation. Typically, this should be “a written statement from the sponsor, signed under penalty of perjury, attesting to the amount of his or her income for the relevant year and to the fact that a tax return was not required by law.” Also attach “a copy of the instructions from the IRS publication that shows you [were] not obligated to file.”
- If you were not required to file a Federal income tax return under U.S. tax law for any other reason, attach a typed or printed explanation including evidence of the exemption and how you are subject to it. 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.
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.
Make sure that income and other details are reported accurately on tax returns. In any case in which a consular officer “comes into possession of information that leads the officer to conclude that a violation or potential violation of U.S. tax law may have occurred with respect to any person,” the officer may refer the information to the IRS.
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.”
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.
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).
To apply for an ITIN, see IRS, Individual Taxpayer Identification Number (Oct. 12, 2016), https://www.irs.gov/individuals/individual-taxpayer-identification-number-itin.
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
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.
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. 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.
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.
- 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.
- In all other cases, “significant” means five times the difference between the sponsor’s household income and minimum income requirement for the household size.
Example of How to Count Assets:
Assume you are petitioning for a parent and your household size is 4:
For each asset, the sponsor must submit proof of ownership. 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.
The assets must be “available for the support of” the sponsored immigrant. To qualify as “available,” the assets must be “readily converted into cash within one year” without “undue harm to the sponsor or his or her family members.”
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.
Examples of assets include but are not limited to:
- 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.
- Educational accounts
- Certificates of deposit
- Stocks: Submit evidence of the present cash value or expected earnings and, if the income is derived from a source outside the United States, a statement as to how the income is to be transferred to the United States.
- Individual retirement account (IRA)
- 401(k) retirement account
- 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.
- 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. 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.
- Insurance with a cash surrender value.
- Other personal property: Appropriate proof of ownership may be the sales receipt or other proof of purchase.
7. Filing and Government Review of the Form I-864
Each sponsor or joint sponsor, should include the following documents in support of the affidavit of support:
- Form I-864 or I-864 EZ. You may use the shorter EZ form if:
- You are the Form I-130 petitioner;
- 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
- “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).”
- “If a joint sponsor is used, the petitioner may not use Form I-864EZ.
- If you are a joint sponsor or substitute sponsor, include evidence of U.S. citizen, national, or permanent resident status.
- If you are a joint or substitute sponsor, you may want to prepare a statement explaining why you are willing to agree to sign an affidavit of support. The officer may make request such a statement.
- If you are a substitute sponsor, include evidence of your relationship to the sponsored immigrant
- Your IRS-issued tax return transcript or a photocopy of your tax return for the most recent year. The transcript is “strongly recommend[ed],” but if you submit a photocopy of your return:
- If you filed on paper; the IRS Form 1040 should include your signature(s);
- If you e-filed, you should submit the IRS acknowledgment that they received your return, including the “submission ID number.” 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. If you self-prepared your tax return, you may have received an acknowledgment directly from IRS; and
- 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.
- 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.
- 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.
- You may also include as initial evidence of income: letter(s) evidencing current employment 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.
- If relying on assets, submit evidence as outlined above.
- 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 either (a) evidence of employment in the U.S.. or (b) a few recent utility bills. If you’ve been residing abroad, see above for suggested evidence.
- 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.
- If you will be relying on the assets or income of a household member, then submit:
- Form I-864A, Contract Between Sponsor and Household Member, where specified above.
- 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
- 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, 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. The same is true for forms filed with USCIS.
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.
For those cases in which the petitioner must submit a Form I-864 to the NVC, you should understand that the NVC reviews the form for completeness, whereas a consular officer makes the final decision whether the Form I-864 is sufficient to approve the visa.
If a form is not complete, NVC will send a notification in the Consular Electronic Application Center (CEAC) portal explaining what is wrong and asking that the I-864 be corrected and submitted.
If NVC has recommended the submission of a joint sponsor but you believe that the affidavit of support is sufficient without a joint sponsor, then you may submit a written statement that the I-864 submitted is sufficient. Once the case is otherwise documentarily complete, it will be forwarded to the consular post for an officer to make the final decision. An example of a situation where this can happen is that I the sponsor’s income is insufficient, NVC staff will not analyze whether assets listed in the I-864 are sufficient to make the I-864 sufficient. Instead, NVC would recommend that a recommendation that a joint sponsor be added, when in fact that is not necessary.
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. 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.
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.
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. 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.
This part describes the legal obligations of a sponsor (including a joint or substitute sponsor) who has submitted a Form I-864.
The sponsor’s contractual obligations under the affidavit of support begin when the intending immigrant obtains permanent resident status based on the affidavit. Therefore, the sponsor may withdraw the affidavit at any point before the intending immigrant is granted permanent resident status but not afterwards.
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. In other words, the sponsored immigrant can sue the sponsor to enforce the maintenance agreement. And, if the immigrant ever obtains a means tested benefit, the agency or entity that provided it can also seek reimbursement from the sponsor.
The Form I-864 does not make you responsible for the actions of the intending immigrant in either criminal or unrelated civil matters.
A joint sponsor accepts joint and several liability with the sponsor or substitute sponsor, in any case in which the sponsor or substitute sponsor’s household income is not sufficient to support the requirements of the law.
The sponsored immigrant can require the sponsor to maintain him or her at the minimum income level. That level appears to be 125% of the federal poverty guidelines for a family size of one person, which is $14,850 for 2016 in all states except Hawaii or Alaska. 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. The sponsored immigrant may also recover reasonable attorney fees incurred in enforcing the support obligation.
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.
Precedent is mixed as to whether any court award would be reduced if the sponsored immigrant “fails to mitigate” by looking for work.
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.
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.
Would any of the following waivers or indemnifications be permissible?
- The sponsored immigrant waives the right to sue the sponsor (or joint sponsor or household member) for support.
- 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.
- 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.”
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. One rationale is that an I-864 modifies a prior nuptial agreement waiving support. 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.
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.”
The liability of the sponsor executing a Form I-864 terminates only on one of the following occurrences:
- The sponsored immigrant becomes a U.S. citizen;
- 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;
- The sponsored immigrant dies;
- The sponsored immigrant loses or abandons LPR status and departs from the U.S.;
- The sponsored immigrant is ordered removed but readjusts status in immigration proceedings through submission of a new Form I-864; or
- The sponsor dies.
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.
Nor are affidavit of support obligations discharged in in bankruptcy, if owed to a spouse, former spouse, or child.
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. 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.
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. 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.
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.
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. A Joint Sponsor’s Financial Data Can Be Kept Confidential from the Sponsored Immigrant(s) and Other Sponsor(s)
A joint sponsor who completes a Form I-864, Affidavit of Support, can keep the financial data submitted to immigration authorities confidential from the sponsored immigrant(s) and other sponsor(s).
USCIS previously suggested that, “For privacy, you may enclose these documents in a sealed envelope marked ‘Form I-864: To Be Opened Only by a U.S. Government Official.’” For documents mailed to USCIS, that strategy can still be used. For documents hand-carried to USCIS, security rules may prevent sealed envelopes from being carried into federal buildings, but the attorney can submit your documents directly to USCIS without disclosing them to others. Similarly, the attorney can mail or email documents to the National Visa Center without disclosing them to others.
Yes. Sponsored immigrants may qualify for 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”:
- Supplemental Nutrition Assistance Program (SNAP, formerly called “Food Stamps”) (in California, called Cal-Fresh)
- Temporary Assistance for Needy Families (TANF)
- Medicaid (nonemergency) (in California, called Medi-Cal)
- Children’s Health Insurance Program (CHIP), and
- Supplemental Security Income (SSI)
To complicate the situation, 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.
Sponsored immigrants are eligible for emergency Medicaid and most other federal benefits. And, in some states, immigrants can get state-funded (but not federally-funded) medical, food, or cash assistance.
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.
8 C.F.R. § 213a.2(c)(2)(II)(C). ↑
INA § 213A(f)(1)(E). See 8 C.F.R. § 213a.2(c)(2). ↑
8 C.F.R. § 213a.2(c)(2)(iii)(A). ↑
INA §§ 212(a)(4)(B), (D). ↑
8 C.F.R. § 212.20(a) (DHS rule applicable to adjustment applicants); 22 C.F.R.§ 40.41(b) (State Dep’t rule applicable to immigrant visa applicants). ↑
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. ↑
9 FAM 601.14-2(b). 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.” ↑
9 FAM 601.14-2(b)(4) (Feb. 24, 2020). ↑
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). ↑
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).” ↑
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). ↑
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). ↑
See Martin on Social Security § A 400, available at http://www.law.cornell.edu/socsec/martin/2socseca.htm. ↑
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. ↑
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). ↑
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). ↑
INA § 213A(f)(1)(D). ↑
INA § 213A(f)(2). ↑
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.) ↑
Letter from AILA, NILC, and CLINIC to David Neuman, Dir., Office of Legal Affairs, Bureau of Consular Affairs, U.S. Dep’t of State, re: public charge determinations (Aug. 28, 2018), AILA Doc. No. 18082836. ↑
AILA, CLINIC, NILC Update on Public Charge, AILA Doc. No. 18092632 (posted Sept. 26, 2018). ↑
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). ↑
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). ↑
INA §201(b)(2)(A)(i); 8 C.F.R. § 204.2(b) ↑
8 C.F.R. § 204.2(b)(4); 9 FAM 42.42 N5.1. ↑
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). ↑
INA § 204(l). ↑
INA § 213A(f)(5)(B). ↑
8 C.F.R. § 205.1(a)(3)(i)(C). ↑
INA § 213A(f)(5)(B); 9 FAM 40.41 N6.4(a). ↑
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”). ↑
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. ↑
9 FAM 40.41 N6.4(b); 9 FAM 40.41 N10.2; AFM 20.5(d)(6)(B). ↑
INA § 213A(f). ↑
Form I-864 (rev. July 2, 2015), at 4. ↑
Form I-864 Instructions 4 (July 2, 2015). ↑
INA § 101(a)(33). ↑
8 C.F.R. § 213a.1. ↑
8 C.F.R. § 213a.2(c)(1)(ii). ↑
8 C.F.R. § 213a.2(c)(1)(ii). The definitions for these terms defy logic. Residence is defined as one’s “principal … dwelling place,” and domicile is defined as one’s “principal residence.” That makes the latter one’s “principal, principal dwelling place.” To claim the former is abroad and the latter is in the United States is on par with Lake Wobegon’s claim that all its children are above average. ↑
9 FAM 302.8-2(B)(5). See AFM ch. 20.5(d)(2). Continuing ties may include, for example, a U.S. voting record, state or local tax payment records, property, bank or investment accounts, and a permanent mailing address. Form I-864 Instructions 5 (July 2, 2015). ↑
9 FAM 302.8-2(B)(5). ↑
INA §§ 316(b), 317. ↑
Note the circular reasoning: a citizen will be recognized as residing abroad “temporarily” if they are living abroad “temporarily.” 8 C.F.R. § 213.2(c)(1)(ii)(A). See 9 FAM 302.8-2(C)(5)(b)(4). But see Form I-864 Instructions at 5 (July 2, 2015) (omitting the temporariness requirement: “Some individuals employed overseas are automatically considered as domiciled in the United States because of the nature of their employment.”); USCIS Adjudicator’s Field Manual ch. 20.5(d)(2) (same); Matter of Kane, 15 I. & N. Dec. 258 (BIA 1975) (indefinite employment abroad for a U.S. company counts as temporary for purposes of determining whether a permanent resident has abandoned that status), citing Matter of Wu, 14 I. & N. Dec. 290 (RC 1973) (stay abroad was “temporary” for purposes of qualifying for a reentry permit, where applicant worked for a U.S. company abroad for more than 4 years and had an approved N-470), Matter of Manion, 11 I. & N. Dec. 261 (DD 1965) (stay abroad was temporary for purposes of qualifying for a reentry permit, where applicant worked for a U.S. company abroad for more than 6 years). ↑
8 C.F.R. § 213a.2(c)(1)(ii); AFM ch. 20.5; 9 FAM 302.8-2(C)(5)(b)(4). ↑
INA § 319(b)(1). See Gary Chodorow, Expeditious Naturalization for Spouses of U.S. Citizens Employed Abroad (Nov. 23, 2014), http://www. lawandborder.com/expeditious-naturalization. ↑
I-864 Instructions at 3. ↑
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. ↑
8 C.F.R. § 213a.2(c)(ii)(B). ↑
Form I-864 Instructions 5 (July 2, 2015); 9 FAM 302.8-2(B)(5) (Oddly, in direct conflict with the regulations, subparagraph 3(b) states that the consular officer “must be satisfied that the sponsor has, in fact, taken up principal residence in the United States.”) ↑
8 C.F.R. § 213a.2(c)(2)(iii)(A). ↑
8 C.F.R. § 213a.2(c)(2)(ii)(C). ↑
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. ↑
8 C.F.R. § 213a.1; FAM 40.41 N7.1. ↑
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 falls within the definition of “child.” See INA § 101(b)(1). A stepchild counts as a child if under age 18 at the time of the parent and stepparent’s marriage. Id. A stepchild further counts as a “dependent” child if sponsor’s children, as defined in section 101(b)(1) of the Act (other than a stepchild who meets the requirements of section 101(b)(1)(B) of the Act, if the stepchild does resides with the sponsor, is claimed by the sponsor as a dependent for tax purposes, or is seeking to immigrate based on the stepparent/stepchild relationship. 8 C.F.R. § 213a.1 (defining “household size”). ↑
HHS, Annual Update of the HHS Poverty Guidelines, 86 Fed. Reg. 7732 (Feb. 1, 2021). ↑
8 C.F.R. § 213a.1. ↑
IRS Form 1040 and 1040-SR Instructions at 83-84 (2019). ↑
Id. at 84. ↑
71 Fed. Reg. 35731, 35738 (Jun. 21, 2006); AFM ch. 20.5(k)(4)(F). ↑
Form I-864 Instructions at 8 (Oct. 15, 2019) ↑
9 FAM 601.14-5(b)(3)(d) (Feb. 24, 2020). ↑
See Charles Wheeler, Affidavits of Support: a Practitioner’s Guide 148 (2020) (“Until USCIS or DOS issues further guidance, proceed as if those interpretations remain in effect.”) ↑
8 C.F.R. § 213a.2(c)(2)(ii)(C). ↑
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). ↑
8 C.F.R. § 213a.2(a)(1)(v)(B). ↑
Form I-864 Instructions at 8 (Oct. 15, 2019). 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 6, item 7, about the sponsor’s “current individual annual income.” E.g. Form I-864 at 3 (Jan. 21, 2008). ↑
8 C.F.R. § 213a.1. ↑
George Rodriguez, Charles Wheeler, and Donald Wolfson, Panning for Gold: Affidavit of Support Issues, AILA Immigration Practice Pointers (2013-2014 ed). ↑
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). ↑
9 FAM 601.14.-2(c). ↑
8 C.F.R. 213a.2(c)(2)(i)(C)(3); Form I-864 Instructions at 9 (July 2, 2015). ↑
8 C.F.R. § 213a.2(c)(2)(iii)(A). ↑
8 C.F.R. § 213a.2(c)(2)(ii)(C). ↑
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. ↑
8 C.F.R. § 213a.2(c)(2)(ii)(C). ↑
INA § 213A(f)(6). ↑
71 Fed. Reg. 35732, 35738 (June 21, 2006) (supplementary information to final rule on affidavits of support on behalf of immigrants). ↑
8 C.F.R. § 213a.2(c)(2)(ii)(C). ↑
8 C.F.R. § 213a.2(c)(2)(i)(A). ↑
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). ↑
8 C.F.R. § 213a.2(c)(2)(i)(A). ↑
8 C.F.R. § 213a.2(c)(2)(i)(D). ↑
Form I-864 Instructions at 8 (July 2, 2015); 8 C.F.R. § 213a.2(c)(2)(i)(B). ↑
AFM ch. 20.5(i)(1). ↑
9 FAM 302.8-2(B)(17)(d)(1)(f). See 71 Fed. Reg. 35732, 35739 (June 21, 2006). ↑
Form I-864 Instructions at 8 (July 2, 2015); 8 C.F.R. § 213a.2(c)(2)(i)(B); 71 Fed. Reg. 35732, 35739 (June 21, 2006). ↑
8 C.F.R. § 213a.2(c)(2)(i)(B); ↑
9 FAM 603.2-6(C)(a)(1) (Apr. 22, 2019). ↑
IRS, Taxation of Nonresident Aliens (Oct. 7, 2016), https://www.irs.gov/individuals/international-taxpayers/taxation-of-nonresident-aliens. ↑
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/. ↑
8 C.F.R. § 213a.2(c)(2)(i)(A). ↑
8 C.F.R. § 213a.2(c)(2)(iii). See INA § 213A(f)(6)(A)(ii). ↑
Form I-864 Instructions a 6 (July 2, 2015). ↑
8 C.F.R. § 213a.2(c)(2)(iii)(B)(1). 9 FAM 601.14-5(b)(5)(c). See Form I-864 Instructions a 9 (July 2, 2015). ↑
8 C.F.R. § 213a.2(c)(2)(iii)(B)(2). ↑
8 C.F.R. § 213a.2(c)(2)(iii)(B)(3). ↑
8 C.F.R. § 213a.2(c)(2)(iiii)(B). ↑
Form I-864 Instructions at 3 (Sept. 19, 2011). ↑
INA § 213A(f)(6)(A)(ii). ↑
9 FAM 40.41 PN2.13; see AFM 20.5(k)(5) (same). ↑
Form I-864 Instructions at 3 (Sept. 19, 2011). ↑
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.”). ↑
USCIS will accept either. AFM ch. 20.5(k)(5)(A). However, the State Department rules mention only a bank letter. 9 FAM 302.8-2(B)(2)(f) (Jan. 3, 2018). 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. ↑
9 FAM 302.8-2(B)(2)(f) (Jan. 3, 2018). ↑
Form I-864 Instructions at 3 (Sept. 19, 2011). ↑
Form I-864 Instructions at 3 (Sept. 19, 2011). ↑
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). ↑
Form I-864EZ Instructions at 1 (July 2, 2015). ↑
Form I-864EZ Instructions at 1 (July 2, 2015). ↑
9 FAM 302.8-2(B)(4)(c)(2). It is not clear whether USCIS agrees with this State Department requirement. ↑
See sample 221(g) requests in author’s file. ↑
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”). ↑
9 FAM 302.8-2(C)(4). ↑
The NVC website states, “NVC strongly recommends the submission of tax transcripts since they typically provide the information necessary for an evaluation of completeness of the Affidavit of Support and result in more efficient processing. Sponsors may submit copies of tax returns but must comply with the file size limits for electronic uploads to CEAC and could be delayed by requests for additional documentation.” See also Department of State/AILA Liaison Committee Meeting 2 (Apr. 11, 2019), AILA Doc. 19050132. ↑
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. ↑
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. ↑
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. ↑
9 FAM 601.14-10(a). See 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. ↑
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.”).. ↑
8 C.F.R. § 213a.2(g)(1). ↑
U.S. Dep’t of State / AILA Liaison Committee Meeting at 9 (Mar. 5, 2020), AILA Doc. No. 20031030. ↑
National Visa Center / AILA Liaison Committee Meeting (Nov. 1, 2018), AILA Doc. No. 18120605). ↑
9 FAM 302.8-2(B)(4)(b)(4). ↑
9 FAM 302.8-2(B)(4)(f)(1). ↑
AFM ch. 20.5(e)(1). ↑
AFM ch. 20.5(e)(2). ↑
See 8 C.F.R. § 213a.2(e) (support obligations commence when intending immigrant is granted admission as immigrant or adjustment of status). ↑
8 C.F.R. §§ 213a.2(e) – (f). ↑
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-864
created no private cause of action). ↑
8 C.F.R. 213a.1 (defining “joint sponsor”). ↑
INA § 213A(a)(1)(A). See Stump v. Stump, 2005 U.S. Dist. LEXIS 26022 (Oct. 25, 2005). ↑
Erler v. Erler, 2016 U.S. App. LEXIS 10361 (9th Cir. June 8, 2016). ↑
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). ↑
Form I-864; 8 C.F.R. § 213A(c). ↑
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. ↑
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). ↑
71 Fed. Reg. 35732, 35740 (June 21, 2006). ↑
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). ↑
Toure-Davis, at 15; Erler, at 7, n.1. ↑
Toure-Davis, at 23; Erler at 7; Shah. ↑
71 Fed. Reg. 35732, 35740 (June 21, 2006). ↑
8 C.F.R. §§ 213a.2(e)(2)(i)–(ii). ↑
See Davis v. Davis, 2012 Ohio 2088, 970 N.E.2d 1151 (Ohio Ct. App. 2012). ↑
Abandonment or loss of permanent resident status can occur through affirmative misconduct or departure from the
U.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. ↑
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). ↑
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). ↑
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). ↑
5 USC §522a. ↑
INA § 213A(d). ↑
8 C.F.R. § 213a.2(c)(2)(i)(C)(2); Form I-864A, p. 3. ↑
See David N. Simmons, Rule 1.7 of the Rules of Professional Conduct and I-864 Joint Sponsors: Conflicts According to the Perspective That Counts, 21-16 Bender’s Immig. Bull. 02 n.19 (2016); Charles Wheeler, Immigration Law and the Family 208 (2d ed. 2011-2012). ↑
Form I-864 Instructions at 4 (Oct. 18, 2007). ↑
Immigration authorities are prevented by the Privacy Act from releasing such financial data to others. An exception is that financial data may be released to other government agencies, as explained in the Form I-864 Instructions at 15 (July 2, 2015). ↑