What is an Affidavit of Support (Form I-864)? Do you need one to immigrate to the U.S.? Who can act as a financial sponsor for Form I-864? What are the income requirements to act as a financial sponsor? These questions and more will be discussed in part one of this article. Part two, which will discuss the use of assets, joint sponsors, and more, will be posted shortly.
Preliminary Matters: Grounds of Inadmissibility, Public Charge, Etc.:
U.S. immigration law, through the Immigration and Nationality Act (“INA”), lists grounds which renders individuals “inadmissible,” generally making these individuals ineligible to receive U.S. visas, be admitted into the U.S., or adjust status. INA § 212(a). These grounds are referred to as grounds of inadmissibility. The grounds of inadmissibility are long and various and cover the areas of health, criminal activity, national security, economics, unlawful presence in the U.S., money laundering, morals, fraud and misrepresentation, and more.
One such economic ground of inadmissibility is the public charge ground of inadmissibility. The public charge ground of inadmissibility renders inadmissible a foreign national who is “likely at any time to become a public charge.” INA § 212(a)(4). Immigration regulations define “likely at any time to become a public charge” to mean “likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.” 8 C.F.R. § 212.21(a). In other words, before admitting an individual into the U.S., government officers will evaluate whether that individual will likely improperly need and rely on certain U.S. governmental assistance after entering the U.S., a very subjective analysis in which numerous factors are considered. If the government determines that an applicant will likely become primarily dependent on the government for subsistence, the relevant application will be denied unless an exemption or other applies.
A U.S. Citizenship and Immigration Services (“USCIS”) Form I-864, Affidavit of Support Under Section 213A of the INA, is required in some visa and adjustment of status applications, and proper submission of a Form I-864 is one positive factor the government will consider in determining whether an applicant is likely at any time to become a public charge. A Form I-864 Affidavit of Support should not be confused with a USCIS Form I-134, Declaration of Financial Support; third-party affidavit/statement; or, letter of invitation.
What Is Form I-864 and its Purpose:
A USCIS Form I-864 is a legally enforceable contract that a sponsor (a U.S. citizen, U.S. national, or lawful permanent resident (LPR)) signs to accept financial responsibility for a noncitizen, usually a relative, who is coming to the United States to live permanently. The Form I-864 helps ensure that new immigrants will not need to rely on public benefits or that these benefits will be repaid. If the noncitizen is later given certain public benefits, the agency that gave the benefits can require the Form I-864 sponsor to repay that money.
Depending on the unique situation of the case, there are different versions/attachments of/to USCIS Form I-864, including Form I-864EZ, Affidavit of Support Under Section 213A of the INA; and, Form I-864A, Contract Between Sponsor and Household Member.
Who Needs (and When) a Completed Form I-864:
In general, all family-sponsored immigrants and some employment-based immigrants are required to submit a legally enforceable Form I-864. Any accompanying or follow-to-join spouses and children will also need a completed Form I-864 or to be included in one. It should be noted that Form I-864 is usually not needed in nonimmigrant visa applications such as for tourism or studies; in such cases, a USCIS Form I-134, Declaration of Financial Support, may be submitted instead.
There are, however, exemptions to the filing of the Form I-864 requirement, even for the above-mentioned types of cases. For example, a noncitizen who has earned or can be credited with 40 qualifying quarters (credits) of work in the United States under the Social Security Act is exempt from the Form I-864 filing requirement. A qualified U.S. immigration lawyer should be consulted for more information on these exemptions.
In terms of timing, Form I-864, along with all required supporting documentation, generally needs to be filed at the same time as the relevant USCIS adjustment of status application. As for cases processed by the U.S. Department of State (for processing at a U.S. consular post), Form I-864, along with all required supporting documentation, generally needs to be submitted to the National Visa Center (“NVC”) after approval of the USCIS petition and before the immigrant visa interview at the relevant U.S. consular post.
Who Can and Must Act as a Financial Sponsor for Form I-864:
To qualify as a potential sponsor for Form I-864, the person must,
- Be a citizen or national of the United States or an alien who is lawfully admitted to the United States for permanent residence;
- Be at least 18 years of age; and,
- Be domiciled in any of the several States of the United States, the District of Columbia, or any territory or possession of the United States—this requirement is often a problem for couples residing overseas, but there are ways to overcome this problem.
The following persons must act as a financial sponsor, no matter whether there is also a joint sponsor:
- The U.S. citizen, lawful permanent resident, or U.S. national who filed:
- Form I-129F, Petition for Alien Fiancé(e), for a fiancé(e);
- Form I-130, Petition for Alien Relative, for a family member;
- Form I-600, Petition to Classify Orphan as an Immediate Relative, for an orphan; or,
- Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, for a Convention adoptee.
- The U.S. citizen, lawful permanent resident, or U.S. national who filed Form I-140, Immigrant Petition for Alien Worker, for a spouse, parent, son, daughter, or sibling who:
- Has a significant ownership interest (five percent or more) in the business which filed the employment-based immigrant visa petition; or,
- Is related to the intending immigrant as a spouse, parent, son, daughter, or sibling.
What Are the Income Requirements to Act as a Financial Sponsor for Form I-864:
In addition to the above-mentioned eligibility requirements, the sponsor must, generally, show enough income to maintain the intending immigrant(s) and the rest of his/her household at 125 percent of the Federal Poverty Guidelines (or 100 percent if the sponsor is on active duty in the U.S. Armed Forces or U.S. Coast Guard and sponsoring his/her spouse or child); applicants should treat this income threshold as a bare minimum requirement, the government prefers seeing double this amount. The Federal Poverty Guidelines are available online at the following location: https://www.uscis.gov/i-864p.
To illustrate, if a U.S. citizen sponsor (not on active duty in the U.S. armed forces) were married to the intending immigrant and they had two children, this would mean a household size of four, meaning the sponsor would have to show legal income of $39,000USD, at a bare minimum, pursuant to the March 1, 2024, Federal Poverty Guidelines. In addition to the people included in the prior example, the following should also be included in the sponsor’s household size, if applicable: any dependent children under 21 years of age, any other dependents listed on the sponsor’s most recent federal income tax return, all persons being sponsored in the affidavit of support, and any immigrants previously sponsored with Form I-864 or Form I-864EZ whom the sponsor is still obligated to support. It is important to note that the income shown must come from legal sources, and the government will rely on income declared on past filed U.S. federal income tax returns to evaluate a sponsor’s current income claim. Accordingly, sponsors should get caught up on U.S. tax filings and file accordingly in preparation for the filing of a Form I-864—U.S. citizens and legal permanent residents working overseas must still, generally, file U.S. federal income tax returns. If a sponsor’s current income is higher than the income declared on past filed U.S. federal income tax returns, recent pay stubs, employer income verification letters, and more should be included to show current income. Even if a potential sponsor meets the income requirements, if the sponsor works overseas and his income will not continue after the intending immigrant immigrates to the U.S. with the sponsor, this may warrant using other income, assets, or a joint sponsor to overcome the public charge ground of inadmissibility.
Using the Income of the Sponsor’s Household Members to Meet the Income Requirements:
In certain circumstances, the income of certain household members of the sponsor, even the intending immigrant, may be included to meet the Federal Poverty Guidelines income threshold. A USCIS Form I-864A, Contract Between Sponsor and Household Member, may also need to be completed in this situation. A competent U.S. immigration lawyer should be consulted in this situation.
In part two of this article, the use of assets, joint sponsors, and more, will be discussed in case the above-mentioned income requirements cannot be met. Please stay posted for part two to be posted soon.
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