(1) A U.S. citizen or LPR who is the intending immigrant’s spouse, parent, child, adult son or daughter, or
(2) A U.S. citizen who is the intending immigrant’s brother or sister.
(c) Applicants Exempt from Sponsorship .
The following intending immigrants do not need to file Form I-864 when applying for adjustment of status:
· Any intending immigrant who falls within an immigrant classification listed in section (b) above but
a) Has already earned, or can be credited with 40 quarters of coverage pursuant to the Social Security Administration’s regulations; or
b) Is classified as the child of a U.S. citizen, if the child’s adjustment of status application is approved before the child’s 18th birthday, and if the approval will make the child a citizen under section 320 of the Act (i.e., the Child Citizenship Act of 2000).
· Diversity immigrants.
· Special immigrants.
· Employment based immigrants (other than those for whom a relative either filed the Form I-140 or owns 5% or more of the firm that filed the FormI-140.
· Self-petitioning immigrants (including self-petitioning widow(ers) and battered spouses and children).
· Refugees and Asylees adjusting status.
· Registrants under section 249 of the Act.
· Any other intending immigrant not falling within a class of admission listed in section (b) above.
(d) Sponsor Requirements . Back to top
(1) General .
A sponsor who completes Form I-864 must be all of the following:
· The petitioning relative or the relative who has a significant ownership interest in the petitioning entity;
· An individual (a sponsor cannot be a corporation, organization, or other entity);
· A citizen of the United States or a permanent resident (including conditional residents);
· At least 18 years of age;
· Domiciled in the United States, the District of Columbia, or any territory or possession of the United States
· Able to demonstrate the means to maintain an income of at least 125% of the Federal Poverty Guidelines for the sponsor’s household size, including the immigrants being sponsored or previously sponsored. A sponsor on active duty in the U.S. Armed Forces, other than active duty for training, who is petitioning for a spouse or child, must only demonstrate the means to maintain an income equal to at least 100% of the Federal Poverty Guidelines. Assets of the sponsor, the intending immigrant, or both may be used to demonstrate this requirement.
(2) Domicile .
Domicile means the place where a sponsor has his or her principal residence, with the intention to maintain that residence for the foreseeable future. A United States citizen living abroad whose employment meets the requirements of section 319(b)(1) of the Act is considered to be domiciled in the United States. For purposes of the ability to sign a Form I-864, a Lawful Permanent Resident living abroad is considered to have a domicile in the United States during a temporary period of residence abroad if he/she has obtained preservation of residence benefits under 316(b) or 317 of the Act. There may be other situations in which a U.S. citizen or LPR can establish that his or her domicile is still in the United States, despite the fact that the citizen or LPR is currently living outside the United States.
If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant’s admission or adjustment of status.
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(3) Use of Spouse’s Income.
A sponsor’s spouse who qualifies as a household member and wishes to have his or her income included as a household member generally needs to complete a Form I-864A. However, if the spouse is not willing to let the sponsor rely on the spouse’s income, that is acceptable. In this situation, the sponsor needs to show his or her own income and which portion of any assets used to qualify can be attributed to him or her.
In some situations, the sponsor’s spouse qualifies as a household member and is also the intending immigrant being sponsored. Since a sponsored immigrant cannot agree to support him or herself, he or she should not complete a Form I-864A. If children are also listed on the Affidavit of Support, and the sponsor intends to rely on the spouse’s income to show the ability to support these accompanying family members, then the spouse must complete Form I-864A in order for the sponsor to be able to rely on the spouse’s income.
(4) Use of Intending Immigrant’s Income .
If the sponsor does not meet the income requirement on the basis of his or her own income and/or assets, the sponsor may also count the intending immigrant’s income if
(1)(a) The intending immigrant is either the sponsor’s spouse or
(b) Has the same principal residence as the sponsor, and
(2) The preponderance of the evidence shows that the intending immigrant’s income results from the intending immigrant’s lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status. The prospect of employment in the United States that has not yet actually begun does not count toward meeting this requirement.
If there is an accompanying spouse and/or child listed on the Affidavit of Support, then the sponsored intending immigrant must also complete a Form I-864A. If, however, the sponsored intending immigrant is the only person included on the Affidavit of Support, then he or she does not need to complete a Form I-864A.
(5) Use of Intending Immigrant’s Assets .
If the sponsor does not meet the income requirement using his or her own income and/or assets, the sponsor may include the net value (the total value of the assets less any offsetting liabilities) of the intending immigrant’s assets. the intending immigrant needs to provide documentation showing the net value of all assets. The required total net value of assets depends upon the basis upon which the sponsored alien intends to immigrate.
(6) Substitute Sponsorship .
(A) For the primary intending immigrant, and accompanying family members .
If the visa petitioner dies before USCIS approves the visa petition, the statute does not permit anyone else to file the Form I-864. If the visa petitioner dies after USCIS approves the visa petition, P.L.107-150 provides discretion to permit the beneficiary to immigrate. Under this provision, it is appropriate for USCIS to reinstate approval of the visa petition if the request to reinstate approval is supported by a properly completed Form I-864 signed by an eligible substitute sponsor (and by a joint sponsor, if necessary). The substitute sponsor must be the sponsored alien’s: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian.
The final Affidavit of Support rule includes a special accommodation for the spouse of a citizen, if the citizen spouse has died. If, at the time of the citizen spouse’s death, the alien spouse qualifies as a surviving "widow(er)" as defined under the Act. The citizen spouse’s Form I-130 is converted so that it will be deemed to be a widow(er)’s Form I-360. If the Form I-130 was approved before the citizen spouse died, it will be deemed to be an approved Form I-360. If it was still pending, it can be approved as a Form I-360. In either case, the alien spouse will no longer need to have a Form I-864, since he or she will be adjusting status as a widow(er).
If the citizen spouse and alien spouse had not been married for at least two years when the citizen spouse died, then this "conversion" option is not available and the alien spouse remains subject to the Affidavit of Support requirements. As with any other Form I-130, if USCIS approved the Form I-130 before the citizen spouse’s death, USCIS has discretion to reinstate the approval if there is a qualified substitute sponsor.
(B) For a family member who is following to join the principal sponsored immigrant .
In those cases where the petitioner has died after the principal sponsored alien has obtained permanent resident status but before a dependent following to join has obtained permanent resident status, another person may file a Form I-864 on behalf of the following-to-join dependent, if that person meets all requirements and files a Form I-864 on behalf of the following-to-join dependent. this sponsor is not required to be someone who would qualify as a substitute sponsor. The sponsor could even be the principal sponsored alien, who, by the time the following-to-join dependent immigrates, would be an alien lawfully admitted for permanent residence.
(7) Joint Sponsor . Back to Top
(A) Joint Sponsor Needed .
If the petitioner or substitute sponsor cannot demonstrate the ability to maintain an income of at least 125% (or 100% when applicable) of the Federal Poverty Guidelines, the intending immigrant may meet the Affidavit of Support requirement by obtaining a joint sponsor who is willing to accept joint and several liability with the principal sponsor as to the obligation to provide support to the sponsored alien and to reimburse agencies who provide means-tested benefits to the sponsored alien during the period that the Affidavit is enforceable. The joint sponsor must demonstrate income or assets that independently meet the requirements to support the sponsored immigrant(s). It is not sufficient for the combination of incomes of the primary sponsor, sponsored immigrant and joint sponsor to meet the threshold.
Each joint sponsor must execute a Form I-864 that is submitted in addition to the Form I-864 submitted by the petitioner or substitute sponsor. A joint sponsor does not have to be related to the petitioning or substitute sponsor, or the sponsored alien. However, a joint sponsor must otherwise meet the same requirements as a petitioning or substitute sponsor.
The use of a joint sponsor does not eliminate the requirement that there be a signed Form I-864 from the petitioner or substitute sponsor with his or her most recent Federal tax return (or proof that there was no obligation to file). The petitioner or substitute sponsor, as well as the joint sponsor, has full financial responsibility for immigrant(s) they sponsor.
(B) Joint Sponsor Not Needed .
If the petitioning or substitute sponsor meets the income requirements based on his or her own income, there can be no joint sponsor.
(8)Sufficiency of Form I-864 .
(1) In general .
When determining the sufficiency of a Form I-864, USCIS shall first consider the sponsor’s anticipated income for the year the sponsor signed Form I-864. Thus, during the initial evidence review, USCIS shall as a general rule determine the sufficiency of a Form I-864 based on the sponsor’s reasonably anticipated household income for the year in which the sponsor signed the Form I-864.An affidavit of support must be sufficient both at the time the adjustment of status is filed and at the time the adjustment of status application is adjudicated
(2) Sponsor Use of Benefits .
Receipt of any means-tested public benefits is not considered as income for purpose of the affidavit of support. A Federal means-tested public 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). State and local means tested benefits vary by jurisdiction. Earned benefits such as Social Security retirement, Unemployment Compensation, and Workman’s Compensation may be included as income.
(3) Withdrawal of an affidavit of support or Form I-864A .
A person who has signed a Form I-864, I-864EZ or I-864A may withdraw the Form. If the person does so, USCIS will adjudicate the application for adjustment of status as if the withdrawn From I-864, I-864A or I-864EZ had never been filed. In an adjustment of status case, a withdrawal of the Form I-864, I-864EZ or I-864A is not effective unless it is in writing and USCIS actually receives the withdrawal before the final decision on the adjustment application. In an immigrant visa case, once a consular office r has issued an immigrant visa, no Form I-864, I-864EZ or I-864A may be withdrawn unless the visa petitioner also withdraws the visa petition.
(9) Documentation .
(1) Federal Tax Returns .
Each sponsor must submit either a transcript or a copy of his or her most recent US. Federal individual income tax return (Form 1040, 1040A or 1040EZ), including all Schedules filed with the IRS. If the sponsor submits a copy of the tax return, he or she must also include copies of any and all IRS Forms W-2 and 1099 that reflect income used to qualify. State or foreign income tax returns are not acceptable;
The sponsor must submit with the Form I-864 the sponsor’s U.S. Federal income tax return for the most recent tax year (that is, the completed tax year immediately preceding the date the sponsor signs the Form I-864). USCIS may generally expect a sponsor, after April 15 of any given year (or April 16 or 17, in a year in which April 15 is on a Saturday or Sunday), to have completed his or her tax return for the previous year. If the sponsor requested an extension, the sponsor should provide proof of filing for the extension. If the sponsor did not file a tax return, the sponsor must prove that he or she was not required to file. If a sponsor should have filed, the sponsor must file retroactively and provide proof of filing.
(2) Job Letters and Proof of Income . Back to Top
Pay stub(s) showing income for the most recent 6 months and letters from all current employers are no longer required as initial evidence. The applicant, however, may submit either or both of these items
(1) in response to a request for additional evidence (RFE), or
(2) with a Form I-864 if the applicant believes doing so would help establish that the sponsor meets the governing income/assets threshold. If submitted, letters from current employers should show dates of employment, the nature of the job, wages or salary earned, number of hours/weeks worked, and prospects for future employment and advancement. It should be sufficient for the employer to say that the employment is of indefinite duration or words of similar effect. Promises of future employment are not required.
(3) Household Members .
The sponsor may use the income of any member of his or her own household who is at least 18 years old to help meet the household income requirement. The sponsor and household member must complete Form I-864A, which must include a copy or transcript of the household member’s most recent tax return and sufficient documentation of all income and assets he or she lists on the Form I-864A. USCIS shall use the same standards for documentary evidence of income and assets listed on a Form I-864A as are used for documentary evidence of income and assets listed on Form I-864.
(4) Use of Poverty Guidelines .
United states department of health and human services ( HHS) publishes new Poverty Guidelines in the Federal Register each year. These guidelines become effective for USCIS purposes on the first day of the second full month following their release. To assist sponsors and intending immigrants, USCIS publishes the governing guideline for the location and size of each household on Form I-864P, Poverty Guidelines. The Poverty Guidelines for each year remain in effect during the next year until the effective date of the new guidelines.
(10) Sponsor’s Household Size .
The sponsor’s total household size is used to determine the correct Federal Poverty Guideline. For purposes of Form I-864, a household size includes the total of the following groups of individuals:
· Sponsor;
· Person(s) the sponsor is sponsoring on the Affidavit of Support (will always be one if the sponsor is using Form I-864EZ instead of Form I-864);
· Sponsor’s spouse, if the sponsor is married;
· All of the sponsor’s children, as defined in section 101(b)(1) of the Act, except those that have
(1) Reached the age of majority (i.e., are at least 18 years old) or are emancipated under the law of the person’s domicile, and
(2) Are not claimed as dependents on the sponsor’s most recent Federal income tax return;
· Other persons lawfully claimed as dependents on the sponsor’s tax return for the most recent tax year; and
· The number of siblings, parents, and/or adult children who
(1) Have the same principal residence as the sponsor, and
(2) Have combined their income with the sponsor’s income by submitting Form I-864A.
(11) Sponsor’s Income and Employment
(A) General Rule and Active Duty Military Exception.
Either the petitioning sponsor, substitute sponsor, or a joint sponsor must generally demonstrate the ability to maintain his or her annual household income at 125% of the governing Federal Poverty Guideline threshold.
A petitioner on active duty in the U.S. Armed Forces, other than for training, only needs to demonstrate the means to maintain an annual income equal to at least 100% of the Federal Poverty Guidelines if he or she is petitioning for a spouse or child.
Note that a substitute sponsor or joint sponsor is not eligible to claim the 100% income level based on the petitioner’s relationship to the intending immigrant, or the petitioner’s military status. A substitute sponsor or joint sponsor may claim the 100% income level only if the substitute sponsor or joint sponsor, himself or herself, is on active duty in the U.S. Armed Forces (other than for training) and the intending immigrant is the spouse or child of the substitute sponsor or joint sponsor. To qualify for this exception, the petitioner must have provided evidence that he or she is on active duty,
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(B) Poverty Guidelines.
Form I-864P, Poverty Guidelines, provides the Federal Poverty Guidelines calculated at both the 100% level and 125% level for the 48 contiguous states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam. Separate guidelines are published for Alaska and Hawaii.
The Form I-864P guidelines are based on household sizes of 2 to 8. A dollar amount is provided to add for each additional household member or dependent. To determine the requirement for a household size of 10, USCIS should take the poverty line for a household size of 8 and add the additional dollar amount multiplied by 2. Form I-864P is based upon the Federal Poverty Guidelines that the Department of Health and Human Services (HHS) publishes annually in the Federal Register (usually in February or March).
(C) Determining the Sponsor’s Ability to Provide Sufficient Support.
If the sponsor is using Form I-864EZ, he or she must only use his or her salary or pension as shown on his or her most recent Federal income tax return. If the sponsor provides a photocopy of the return, the sponsor must include a copy of any Form(s) W-2 provided by the sponsor’s employer(s) to prove income from employment and/or Form(s) 1099 to show pension income;) If sponsor relies on other types of income, the sponsor must use Form I-864. The sponsor must also use Form I-864, rather than Form I-864EZ, if the sponsor will be submitting any Forms I-864A.
Regardless of the form the sponsor uses, he or she must provide evidence of any income (and/or assets in the case of Form I-864) used to demonstrate the means to maintain the sponsored immigrant.
Sponsors who use Form I-864 may qualify based only upon their own income and/or assets if either or both are sufficient to reach the income requirement. If, however, the sponsor’s combined income and assets are not sufficient to meet the governing threshold, the sponsor may include the income and/or assets of another household member if the household member:
· Is at least 18 years old;
· Is included in the calculation of household size;
· Has the same principal residence as the sponsor (or is the sponsor’s spouse); and
· Has completed and signed a Form I-864A.
As noted above, the intending immigrant does not need to sign a Form I-864A if he or she is immigrating alone (that is, has no accompanying dependents).
(D) Federal Tax Return(s).
Whether a sponsor submits Form I-864 or I-864EZ, the sponsor must provide a copy or an IRS-generated transcript of the sponsor’s Federal income tax return for the sponsor’s most recent tax year. Each Federal tax return must include all the supplements and attachments that were sent to the IRS with the tax return. For purposes of demonstrating means to maintain income, the determining income amount is the income, before deductions, on the sponsor’s income tax return. In other words, income means an individual's total income (adjusted gross income).
If a sponsor filed a joint tax return with a spouse, but is qualifying using only his/her own individual income, the sponsor must submit evidence of that individual income. This evidence would include, for example, the sponsor’s own W-2(s), Wage and Tax Statement, and if necessary to reach the income requirement, evidence of other income reported to IRS which can be attributed to him/her, usually on Forms 1099.
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(E) Other Evidence of Income.
For purposes of demonstrating means to maintain income, the total income, before deductions, in the sponsor’s tax return for the most recent taxable year will be generally determinative. There is no requirement to determine whether the sponsor would have met 125% (or 100%) of the governing Poverty Guideline before the most recent tax year. Income tax information from these years should only be used to take the earning trend into consideration when assessing current and future earning capability.
USCIS, however, may consider other evidence of income (e.g., pay stub(s), employer letter(s), or both), if
(1) the sponsor establishes that he/she was not legally obligated to file a Federal income tax return for the most recent tax year, or
(2) USCIS determines that the income listed on the Federal tax return for the sponsor’s most recent tax year does not meet the governing threshold. In other words, if the sponsor’s current income is sufficient, it can establish that the Form I-864 itself is sufficient even if the tax return without any other documentation might warrant a finding that it is not sufficient. For example, if the sponsor recently started a new job (that USCIS is satisfied will likely continue) and the income from the job now meets or exceeds the legal requirement, USCIS may find the Affidavit of Support to be sufficient, notwithstanding information included in the transcript t or copy of the tax return(s).
USCIS may conclude that a Form I-864 is not sufficient, even if the sponsor’s household income meets the Poverty Guideline threshold. USCIS may make this conclusion only if the evidence of record makes it "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 obligation." For example, if the sponsor’s income is from a job that is merely temporary or seasonal, USCIS might reasonably conclude that the income is likely not to continue, and could also conclude that the Affidavit of Support, for that reason, is not sufficient.
(F) Compare Total Household Income with Governing Poverty Guideline.
If the sponsor’s total household income is greater than or equal to the governing Poverty Guideline threshold, the sponsor does not need to show evidence of assets and does not require a joint sponsor.
(12) Use of Assets to Supplement Sponsor’s Income .
If a sponsor cannot meet the Poverty Guideline requirement based upon total household income , he or she may show evidence of assets owned by the sponsor, and/or members of the sponsor’s household, that are available to support the sponsored immigrant(s) and can be readily converted into cash within 1 year.
For assets of the intending immigrant and/or household member to be considered, the household member must complete and sign Form I-864A.
(A) Evidence of assets .
Evidence of the sponsor’s assets should be attached to the Form I-864. Evidence of the principal sponsored immigrant’s and/or household member assets should be attached to Form I-864A. In each instance, the evidence should establish the location, ownership, and value of each listed asset, including any liens or liabilities for each listed asset. Evidence of assets includes, but is not limited to:
· Bank statements covering the last 12 months, or a statement from an officer of the bank or other financial institution in which the sponsor has deposits, including deposit/withdrawal history for the last 12 months, and current balance;
· Evidence of ownership and value of stocks, bonds, and certificates of deposit, and dates acquired;
· Evidence of ownership and value of other personal property and dates acquired; and
· Evidence of ownership and value of any real estate and dates acquired.
(B) Amount of assets required.
In order to qualify using assets, the total net value of all assets must generally equal at least five times the difference between the sponsor’s total household income and the minimum income requirement for the current year.
Example for a household size of 4 :
125 percent of 2008 poverty guidelines: $26,500
sponor's income: $19,500
Difference : $7,000
Mutiply by 5: X5
Minimum Required Net Value of Assets : $35,000
There are two exceptions, however: If the adjustment of status applicant intends to immigrate as a spouse of a U.S. citizen or as the child of a U.S. citizen who will not become a citizen under section 320 of the Child Citizenship Act of 2000 because the child has already reached his or her 18th birthday, the "significant assets" requirement will be satisfied if the assets equal three times, rather than five times, the difference between the applicable income threshold and the actual household income.
Example for a household size of 4 : | |
125 percent of 2008 Poverty Guidelines | $26,500 |
Sponsor's income | $19,500 |
Difference | $7,000 |
Multiply by 3 | x 3 |
Minimum Required Net Value of Assets | $21,000 |
| |
· If the adjustment of status applicant intends to immigrate as an IR-4 immigrant (orphans coming to the United States for adoption), the parents’ assets only need to equal or exceed the difference between the applicable income threshold and the actual household income.
Example for a household size of 4 : : | |
125 percent of 2008 Poverty Guidelines | $26,500 |
Sponsor's income | $19,500 |
Difference (Minimum Required Net Value of Assets ) | $7,000 |
(13) Affidavit of support contract
The last part of Form I-864 or of Form I-864EZ constitute the bulk of the contract and covers the purpose of the Affidavit of Support, which is to overcome the public charge grounds of inadmissibility. It also includes the notice of change of address requirements (the sponsor must notify the Secretary of Homeland Security of the sponsor’s new address within 30 days of any change of address by filing Form I-865 with USCIS), means-tested benefit prohibitions and exceptions, consideration of the sponsor’s income in determining eligibility for benefits and the civil action to enforce the Affidavit. Additionally, it requires a certification under penalty of perjury that the sponsor is aware of the legal ramifications of being a sponsor under section 213A of the Act.
(14) Verification of Information .
The Government may pursue verification of any information provided on or with Form I-864, I-864EZ, I-864A (e.g., employment, income, and/or assets) with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration.
If USCIS finds that a sponsor, joint sponsor, or household member has concealed or misrepresented material facts concerning income, household size, or any other material fact, USCIS shall conclude that the Affidavit of Support is not sufficient to establish that the sponsored immigrant is not likely to become a public charge. In this situation, the sponsor or joint sponsor may be liable for criminal prosecution under the general statutes relating to the submission of fraudulent immigration documents. Failure of the sponsor or joint sponsor to provide adequate evidence of income and/or assets will result in the denial of the application for adjustment to lawful permanent residence status.
(15) Termination of Sponsor’s Obligation and Enforcement .
The obligations created under Form I-864 and I-864A terminates when the sponsored alien:
· Becomes naturalized;
· Is credited with at least 40 quarters of employment in the Social Security system;
· Loses or abandons his or her lawful permanent resident status; or
· Dies.
If the sponsored immigrant is the sponsor’s child, the legal obligation made in the Affidavit of Support is not terminated by the child’s adoption after acquiring permanent residence.
If the sponsored immigrant is the sponsor’s spouse, divorce will not terminate the legal obligation made in the Affidavit of Support.
Even when the support obligation has been terminated, the sponsor, or the sponsor’s estate may still be held liable for any reimbursable amount that accrued before the termination of the obligation.
(16) Reimbursement Requests .
USCIS is not directly involved in enforcing an Affidavit of Support sponsor’s obligation to reimburse an agency for means tested public benefits. USCIS does, however, make information about the sponsor available to an agency seeking reimbursement. Upon the receipt of a duly issued subpoena, USCIS will provide the agency with a certified copy of a sponsor’s Form I-864
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