Form I-864, also known as an Affidavit of Support, is a document required for most family-based (and some employment-based) immigration to show that individuals coming to the United States have adequate financial support from a sponsor. This is essentially a contract with the U.S. government stating that the financial sponsor agrees to support the beneficiary and any dependents if necessary.
Why is an Affidavit of Support Required?
The U.S. government requires Form I864 because it doesn’t want foreign national applicants to become “public charges” (which means they’ve received “means-tested” public benefits). If the foreign national is determined to likely become a public charge, the application will be denied. Some common federal means-tested public benefits include:
➤ Food stamps
➤ Medicare
➤ Supplemental Security Income (SSI)
➤ Temporary Assistance for Needy Families (TANF)
➤ State Child Health Insurance Program (SCHIP)
Programs that do not fall under means-tested benefits include:
➤ Emergency Medicaid
➤ Short-term non-cash emergency relief
➤ Services provided by the National School Lunch and Child Nutrition Acts
➤ Immunizations, testing, and treatment for communicable diseases
➤ Student assistance under the Higher Education Act and the Public Health Service Act4
➤ Certain forms of foster care or adoption assistance under the Social Security Act
➤ Head Start programs
➤ Means-tested programs under the Elementary and Secondary Education Act
➤ Job Training Partnership Act programs
If the application is approved and the beneficiary ends up using certain public benefits, the U.S. government has the right to collect repayment from the U.S. citizen and any joint or co-sponsors. An Affidavit of Support is legally enforceable and the sponsor can be sued if they fail to repay the amount owed. The U.S. sponsor is responsible for their family member until:
➤ The individual becomes a U.S. citizen
➤ The individual is credited with 40 quarters of work (which is usually 10 years).
➤ The death of either spouse
➤ The individual seeking a green card moves out of the United States permanently
Note: Divorce does not end the sponsorship.
If the U.S. citizen has been a primary financial sponsor or co-sponsor for other individuals in the past, this will be factored in when they file a new Affidavit of Support unless their obligations to the individuals have ended due to one of the above factors.
If the foreign national is the U.S. citizen sponsor’s K-1 fiancée, K-3 spouse, or K-4 child of their fiancée or spouse, the sponsor doesn’t need to submit Form I864 at the time they file their Form I-129F petition. Instead, they should submit Form I864 when their fiancée, spouse, or child adjusts their permanent status in the United States.
Who Can Submit Form I864?
Individuals filing a green card petition for their relative or spouse must be their financial sponsor. In addition, they must meet the following requirements:
➤ Be at least 18 years old and a U.S. citizen or a permanent resident
➤ Lives in the United States or U.S. territory or possession
Although sponsors are usually required to live in the United States or a territory or possession, they may be eligible to be a sponsor if they can prove their domicile is still in the U.S. and that their residence abroad is temporary.
Meeting the Minimum Financial Requirements for an Affidavit of Support
To meet the minimum requirements for Form I-864, the sponsor must provide evidence that they have the income and/or assets to maintain support for the immigrating person and their own household at 125% of the Federal Poverty Guidelines. The household includes the sponsor, their dependents, any relatives that live with them, and the foreign national they’re sponsoring. Joint sponsors must meet the same requirements as the primary sponsor, but they do not need to be related to the foreign national. In addition, they must meet the 125% income requirement themselves; the income of the primary sponsor and joint sponsor can’t be combined.
If the sponsor is on active duty in the U.S. Armed Forces and they’re sponsoring their spouse or child, the threshold for minimum income is lower. They will only need to show that their income equals 100% of the U.S. poverty level for their household.
What Happens if the Financial Requirements Aren’t Met?
If the sponsor cannot meet the minimum income requirements, they have several options:
1. The sponsor may add the cash value of their assets, including funds from savings accounts, stocks, bonds, or property. The amount needed to qualify can be determined by subtracting the sponsor’s household income from the minimum income requirement. The cash value of their assets must be worth five times the amount left over from the minimum income requirement.
However, there are some exceptions:
➤ If the beneficiary is a spouse or adult child (18 years or older) of a U.S. citizen, the minimum cash value of assets only needs to be three times the difference between the sponsor’s household income and 125% of federal poverty guidelines for the size of their household.
➤ If the beneficiary is an orphan coming to the U.S. for adoption, the adoptive parents must be able to show their assets equal or exceed the difference between their household income and 125% of the federal poverty line for the size of their household.
2. The sponsor may include the income and assets from other related (by birth, marriage, or adoption) household members. To do this, the household members must be listed as dependents on the sponsor’s most recent federal tax return, or they must have been living with the sponsor for the past 6 months. In addition, related household members must complete Form I-864A, Contract Between Sponsor and Household Member. The income and assets from the sponsor’s beneficiary relative may also be included, but the beneficiary isn’t required to complete Form I864A unless they are accompanied by other family members.
3. The sponsor may include the income and assets of the relatives they’re sponsoring.
Who Can be a Substitute Sponsor?
If the primary sponsor dies after the visa petition is approved and U.S. Citizenship and Immigration Services (USCIS) allows the petition to continue, a substitute sponsor must file Form I864 in place of the deceased petitioner. Substitute sponsors must be related to the applicant in one of the following ways:
➤ Spouse
➤ Parent
➤ Mother- or father-in-law
➤ Sibling
➤ Adult child (son or daughter who is at least 18 years old)
➤ Son- or daughter-in-law
➤ Brother- or sister-in-law
➤ Grandparent
➤ Grandchild
➤ The legal guardian of the beneficiary
In addition, they also need to be:
➤ A U.S. citizen, national, or permanent resident
➤ At least 18 years’ old
➤ Live in the United States
➤ Meet all of the financial requirements of a sponsor
Like the original sponsor, the substitute sponsor assumes all financial obligations for the beneficiary.
Get Assistance with Your Form I-864 Affidavit of Support
Correct preparation and filing for Form I864 Affidavit of Support are critical to have your green card. There are several types of Affidavit of Support forms (I-864, I-864EZ, I-864W, and I-864A), so it’s important to make sure you’re submitting the right one. Mistakes can cause delays or an application getting denied. For this reason, it’s always recommended to work with an experienced immigration lawyer. If you have questions about your case or need assistance filing your green card petition, please contact the Ranchod Law Group at 916-613-3553 or email us at info@ranchodlaw.com.