USCIS Final Rule on the I-864 Affidavits of Support
Posted Sep 08, 2006
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The I-864 Affidavit of Support has been a topic in previous articles on MurthyDotCom. This is intended a broad overview of the final rule on the Affidavit of Support that became effective July 21, 2006.
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New AOS for all Cases Decided on or after July 21, 2006
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The final rule will apply to any Affidavit of Support filed with an application for an immigrant visa or adjustment of status decided on or after July 21, 2006 - even if the case was filed before July 21, 2006. The final rule creates two new forms: the I-864EZ and I-864W. Forms I-864 and I-864A have also been amended to conform to the final rule. The new and amended forms are available for use as of this writing. The USCIS will continue to accept the old versions of the I-864 and I-864A forms until October 19, 2006. If one has already submitted an old version of one of these forms to USCIS, s/he should not submit a new form. The old version of the form will simply be decided under the new rules.
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Types of Cases Requiring the I-864 Affidavit of Support
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Briefly, the Form I-864 Affidavit of Support is required for family-based immigration cases and employment-based immigrant visas where a relative filed the immigrant visa petition or has a significant ownership interest (5% or more) in the petitioning company or business.
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Note that the I-864 is not required for the majority of employment-based cases in which a relative is not involved. Nevertheless, we often recommend that the primary applicant of an employment-based green card file an I-134 Affidavit of Support on behalf of the spouse and children who are immigrating with him or her. (The Form I-134 is not a legally enforceable contract, like the I-864, and is not the subject of this article.)
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Qualifying as Sponsor of an I-864 Affidavit of Support
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The sponsor must be an individual person. A company, business, organization, or entity cannot be a sponsor. With few exceptions, the sponsor must be at least 18 years old, a United States citizen or a lawful permanent resident, have income of at least 125 percent of the current Federal Poverty Guideline for Household Income, and be domiciled in the United States.
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The final rule clarifies that, in order for the Affidavit of Support requirement to apply to an employment-based immigrant, the relative owning at least five percent interest in the petitioning business must be a U.S. citizen (USC) or a permanent resident. If the relative is not a U.S. citizen or permanent resident, the relative cannot and should not file the I-864. The final rule specifies that “relative,” for the purpose of the Affidavit of Support requirement, includes those family members who can otherwise file a family-based visa petition (i.e. USC or LPR spouse, USC or LPR parent, USC adult child, or USC sibling).
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The final rule allows for some flexibility in meeting the U.S. domicile requirement. A sponsor who is living abroad may still file an affidavit of support if (a) she can prove that her residence abroad is only temporary and that her permanent domicile is still in the U.S., or (b) she can provide evidence that she will establish her domicile in the U.S. by the time the intending immigrant is admitted to the U.S. or adjusts status.
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Obligation of Sponsor Continues until Certain Milestones
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The sponsor’s obligation continues until any one of the following occurs: the sponsored immigrant becomes a United States citizen, works or is credited with 40 qualifying quarters of employment, ceases to be a permanent resident and departs the U.S., or if the sponsored immigrant or the sponsor dies. Note that divorce does not end the sponsorship obligation. The final rule acknowledges that, in some cases, the would-be sponsor’s obligation ends before it even starts. Therefore, the Form I-864W was established for those cases in which the sponsored immigrant is exempt from the Affidavit of Support requirements.
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More Flexibility in Affidavit of Support Rules
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The final rule on the I-864 Affidavit of Support allows for flexibility in meeting the financial requirements and appears to be more accommodating to both sponsors and immigrants. There are a number of ways that the final rule has made it easier for sponsors to comply with the requirements of the Affidavit of Support.
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Substitute Sponsor and Other Financial Issues
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Signatures on the Form I-864 and its related forms no longer need to be notarized since the Affidavit of Support is signed “under penalty of perjury." Nevertheless, the I-864 and its related forms will still be equally enforceable. Pursuant to the Family Sponsor Immigration Act of 2002, the final rule allows for the use of a substitute sponsor if the original petitioner dies, but the petition was approved prior to the petitioner’s death and certain other conditions are met. A sponsor is not required to disclose past receipt of means-tested public benefits, but the sponsor may not include public benefits in calculating income.
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If Sponsor's Income Varies Each Year
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The final rule has shed light on the issue of a sponsor whose income has varied from year to year. The rule clarifies that the sponsor’s income in the year in which the intending immigrant files an application for an immigrant visa or adjustment of status, rather than the income stated on the latest tax return, is given the most weight in determining whether the affidavit of support if sufficient. Furthermore, only the most recent tax return is required. Although it is no longer necessary to submit three years of tax returns, the Affidavit of Support does require the sponsor to state that s/he has filed taxes in the last three years, and list his or her income for the last three years. The final rule no longer requires sponsors to submit an employer letter and the most recent six months of pay stubs as initial evidence. A USCIS examiner or consular officer may request such evidence if needed. Even though it is not required, many experienced immigration lawyers acknowledge that such evidence generally makes for a stronger case.
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If Sponsor's Income Insufficient, Joint Sponsors are Allowed
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The new Affidavit of Support rules allow for up to two joint sponsors if the main sponsor has insufficient income to meet the Affidavit of Support requirements. Moreover, each joint sponsor can accept the obligation to sponsor different members of the same immigrating family. Each joint sponsor would only be responsible for supporting the particular members of the family who are listed on that joint sponsor’s Form I-864.
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Income of Household Members May be Added to Sponsor's
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An alternative to using a joint sponsor is for a main sponsor to add the incomes of other members of the household in order to attain the necessary level of income. If the sponsor adds the income of household members to qualify, then the Form I-864A Contract between Household Member and Sponsor must be submitted. The new Affidavit of Support rule allows a more flexible definition of “household member.” The sponsor, the sponsored immigrant/s, the sponsor’s spouse, and the sponsor’s dependent children must be included as household members. (Note that each person is only counted once.) However, the sponsor may (but is not required to) count any other relatives (i.e. parents, adult children, siblings) living in the same residence in order to use their income to qualify. Under the final rule, a sponsor and household member are no longer required to have lived together for at least six months.
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There are cases where a sponsor will use the value of his or her assets to cover the difference between the required income threshold and her/his actual income. In such cases, if the intending immigrant is a spouse, child, or orphan, the sponsor must show assets that are equal to three times (rather than five times) the difference of actual income and required income.
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Two New Forms : I-864EZ and I-864W
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The Form I-864EZ is a shortened and simplified version of the Affidavit of Support. It can be used if all of the following three conditions apply: (a) the sponsor is the petitioner in a family-based case; (b) only one immigrant is being sponsored; and (c) the qualifying income comes from the sponsor’s salary or pension and the sponsor has W-2s. If all of the three conditions do not apply, then the sponsor must use the regular Form I-864. Therefore, the 1-864EZ cannot be used in the case of an employment-based petitioner, if more than one person is immigrating, if the sponsor is self-employed or is using financial assets to qualify, or if there is a joint sponsor or substitute sponsor.
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The Form I-864W is the Intending Immigrant’s Affidavit of Support Exemption. By using the I-864W, the intending immigrant declares that s/he is exempt from needing an affidavit of support. Form I-864W can be used by an immigrant who has already been credited with 40 quarters of work by the Social Security Administration, an immigrant who will become a U.S. citizen immediately upon admission under the Child Citizenship Act of 2000, a self-petitioning widow/er, or the qualifying battered spouse or child who filed an I-360 Petition.
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Lawful Source for Sponsoring Person and Other Clarifications
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The final rule has made it clear that all income and assets that are used to meet the Affidavit of Support requirements must come from a lawful source (i.e. income from illegal or unauthorized employment cannot count toward the requirement.)
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The final rule on the Affidavit of Support also clarifies that, if a person applies for adjustment of status while in removal proceedings, the Immigration Judge has authority to adjudicate the sufficiency of the affidavit of support.
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The final rule states that, if the sponsored immigrant applies for public benefits, the USCIS may disclose the sponsor’s social security number and last-known address to a benefit-granting agency seeking reimbursement.
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There are particular nuances of the law that may apply to one’s case with Affidavits of Support, as well as exceptions to the final rule explained above. It is therefore recommended that one seek the advice of an experienced immigration attorney, as each case has unique circumstances.
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