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I-864 Affidavit of Support

By Nita Nicole Upadhye

Table of Contents

I-864 Affidavit of Support

When applying for a US Green Card under a family-based and some employment-based routes, you may need to file an affidavit of support using Form I-864.

The following practical guide to affidavits of support look at what these are and when they are needed, together with the financial responsibilities associated with the provision of a Form I-864 affidavit of support in the context of sponsorship for a US green card.

 

What is an affidavit of support?

When applying for a green card to live in the United States on a permanent basis, an affidavit of support is a contract between the sponsor of the intending immigrant and the US Government to show that the applicant has adequate means of financial support and is therefore unlikely to become a public charge. This is a legally enforceable contract in which the sponsor is agreeing to use their own income and resources to support their family member or other individual named in the affidavit, if it becomes necessary.

Form I-864 is the name of the form prescribed by US Citizenship and Immigration Services (USCIS) for the sponsor to provide an affidavit of support in the context of certain applications for lawful permanent residence. The sponsor is usually the person who filed a petition on behalf of the intending immigrant using the relevant form to do so, such as Form I-130, Petition for Alien Relative or Form I-140, Immigrant Petition for Alien Worker.

 

When is an affidavit of support needed?

An affidavit of support using Form I-864 will be required for many family-based and some employment-based applications where a foreign national is applying for lawful permanent residence to live in the United States. The following individuals are required by law to submit a Form I-864 to obtain an immigrant visa or adjustment of status:

All immediate relatives of United States citizens (including parents, spouses and unmarried children under 21), and any other relatives who qualify for immigration to the US under one of the family-based preferences;

Employment-based preference immigrants in cases where a relative filed the immigrant visa petition or has significant ownership interest in the petitioning entity of 5% or more.

When it comes to family-based green cards, these can include any one of the following:

  • For first preference family-based green cards: unmarried sons and daughters (aged 21 years or more) of US citizens
  • For second preference family-based green cards: spouses and children (unmarried and under 21 years old) of lawful permanent residents
  • For third preference family-based green cards: married sons and daughters of US citizens, their spouses and unmarried minor children
  • For fourth preference family-based green cards: brothers and sisters of US citizens aged 21 years or more, their spouses and unmarried minor children.

 

However, there are certain scenarios in which an affidavit of support will not be needed, including where an applicant has worked 40 qualifying quarters of work in the US or where they can otherwise be credited with 40 qualifying quarters. It could also be where they are the child of a US citizen and if admitted for permanent residence they would automatically acquire American citizenship under the Immigration and Nationality Act (INA), as well as those applying as a self-petitioning widow(er) or as a qualifying battered spouse or child.

 

Who can provide an affidavit of support?

The person who completes and signs the affidavit of support to become the sponsor of the intending immigrant is usually the petitioner who filed the immigrant petition. The sponsor must also be at least 18 years old, and either a US citizen or permanent resident with a domicile in the United States or a territory or possession of the United States.

The requirement to be US-domiciled typically means that the sponsor must actually live in the United States, or a territory or possession, in order to provide an affidavit of support. If the sponsor lives abroad, however, they may still be eligible to act as a sponsor if they can show that their residence abroad is temporary, and that they still have their US domicile.

Additionally, the relevant provisions of the INA permit both a joint and substitute sponsor in certain circumstances. A joint sponsor is someone willing to accept financial responsibility for supporting the intending immigrant, although this additional sponsor must meet all the same requirements as above, except needing to be related to the immigrant. A joint sponsor must also reach the 125% income requirement alone (see below), where the petitioning sponsor cannot combine their income with that of a joint sponsor to meet this requirement.

A substitute sponsor is where the visa petitioner has died after approval of the immigrant petition, but USCIS allows the petition to continue. A substitute sponsor filing Form I-864 in place of the deceased visa petitioner must be related to the intending immigrant, for example, as either their son or daughter in law or their sister or brother in law. They must also be a US citizen or permanent resident, at least 18 years of age, be domiciled in the United States and meet the income requirements of a sponsor pursuant to the INA.

 

What are the income requirements for affidavits of support?

In addition to the other qualifying requirements, a proposed (joint or substitute) sponsor must meet certain income requirements. This means that they must show that their household income is equal to or greater than 125% of the US poverty level for their household size. The sponsor’s household size includes themself, their dependents, any relatives living with them, as well as the immigrant(s) they are sponsoring.

If the sponsor is on active duty in the United States’ Armed Forces, and they are sponsoring their spouse or child, their income only needs to equal 100% of the US poverty level for their household size. To ascertain if a sponsor is above the poverty level, reference should be made to Form I-864P, HHS Poverty Guidelines for Affidavit of Support.

If a sponsor is unable to meet the minimum income requirement using their earned income, there are various options available to them, including adding the cash value of any assets owned by them or the individual being sponsored. The sponsor may also count the income and assets of members of their household related to them by birth, marriage or adoption. To use their income, the sponsor must have listed them as dependents on their most recent federal tax return or they must have lived with them for the last 6 months. They must also complete Form I-864A, Contract Between Sponsor and Household Member.

 

What is the process when completing an affidavit of support?

The sponsor should complete Form I-864 when the applicant has been scheduled for an immigrant visa interview with a consular office overseas or when they are about to submit an application for adjustment to permanent resident status with USCIS in the United States.

When completing the affidavit of support, the sponsor must be able to show that they have enough income to ensure that the sponsored immigrant will not have to rely on means-tested public benefits for support in the US. To evidence this, the sponsor must provide their US federal income tax return for the most recent tax year, plus proof of current employment. Any failure to provide the tax return or, alternatively, evidence establishing that they were not required to file, will delay action on the application for permanent residence. It may also result in denial of the immigrant visa or adjustment of status.

Once the sponsor has completed the affidavit of support and compiled the necessary documentation, the affidavit will need to be notarized in the United States or before a US consular officer. At this stage, unless the sponsor has been given specific instructions to file directly with the National Visa Center, they should provide this documentation to the applicant to submit with their application for permanent resident status.

 

Which version of Form I-864 should you use?

In most cases, the petitioning sponsor must complete the standard version of Form I-864. This can be found on the USCIS website. However, if the sponsor is relying on the income of other household members to qualify, then each household member accepting legal responsibility for supporting the applicant must complete a separate Form I-864A. This version of the form is for any qualifying household member who is promising to make their income or assets available to help support a sponsored immigrant, although where the value of the income/assets of the intending immigrant is being included, they do not need to complete Form I-864A, not unless they have accompanying family members.

In addition to Forms I-864 and I-864A, there is also Form I-864EZ, Affidavit of Support Under Section 213A of the Act (where the law concerning affidavits of support is set out under Sections 212(a)(4) and 213A of the INA). Form I-864EZ is simply a shorter version of Form I-864 to show that the intending immigrant has adequate means of financial support and is unlikely to become a public charge as a lawful permanent resident. However, this form is only designed for cases that meet all of the following conditions:

  • the sponsor is the person who filed or is filing Form I-130, Petition for Alien Relative
  • the relative being sponsored is the only person listed on Form I-130, and
  • the income being used to qualify is based entirely on the sponsor’s salary or pension and is shown on one or more IRS Form W-2s provided by their (former) employers.

 
A sponsor must instead use Form I-864 if either the relative they are sponsoring is not the only person immigrating based upon the underlying visa petition or where they have filed Form I-140, Immigrant Petition for Alien Worker. Form I-864 should also be used for joint or substitute sponsors (because the original Form I-130 petitioner is deceased), or where they do not meet the income requirements as set by the Federal Poverty Guidelines.

For those who are exempt from providing an affidavit of support, the intending immigrant must themselves complete and submit Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, instead of submitting Form I-864, I-864A or I-864EZ.

 

How long is Form I-864 valid for?

When signing an affidavit of support using Form I-864, the sponsor is accepting legal responsibility for financially supporting the intending immigrant once they become a lawful permanent resident. The sponsor’s responsibility will usually last until that person becomes a US citizen, or is credited with 40 quarters of work, typically after 10 years.

The only other circumstances in which the financial obligations as a sponsor will come to an end are if either the sponsor or the individual being sponsored dies, or if the immigrant ceases to be a lawful permanent resident and leaves the United States. If the sponsor is a spouse, however, the sponsorship obligation will not end on divorce.

In most cases, the submission of an affidavit in support will make the sponsored immigrant ineligible for federal, state or local means-tested public benefits, because any agency providing these benefits will consider the sponsor’s income and resources in determining the immigrant’s eligibility. Still, if a sponsored immigrant goes on to receive any means-tested public benefits, the sponsor will be responsible for repaying those benefits to the agency that provided them. If the sponsor fails to repay any outstanding debt, the sponsor can be sued in court for the money owed. Any joint sponsor and household member will also be jointly or severally liable for the full extent of the reimbursement obligation.

 

What is the Form I-864 processing time?

There is no standard processing time for Form I-864, where this forms part of the documentation needed to support an application for lawful permanent residence. As such, the processing time is how long it takes for the green card application to be approved.

 

How much is the Form I-864 affidavit of support fee?

If an affidavit of support is filed outside the United States, there is no fee when filing with either USCIS or the Department of State. However, if filing within the US, this form must be filed with the Department of State who may charge a fee in these circumstances.

 

Need assistance?

NNU Immigration are US visa and nationality specialists. For expert guidance from our US attorneys, contact us.

 

I-864 FAQs

What is a affidavit of support?

An affidavit of support is a legally enforceable contract in which the proposed sponsor of someone applying for permanent residency in the United States is agreeing to use their own financial resources to support the individual named in the affidavit.

 

What does I-864 mean?

Form I-864 is for the sponsor of an intending immigrant to provide an affidavit of support in the context of an application for lawful permanent residence, in this way showing that the applicant will have adequate means of financial support.

 

What is the difference between I-864 and I-485?

I-864 is an affidavit of support provided by the sponsor of someone applying for lawful permanent residence, while Form I-485 is the form to apply to adjust status to that of a lawful permanent resident.

 

Should I file I 130 and I-864 together?

The Form I-130 (the petition) does not need to be filed at the same time as Form I-864 (an affidavit in support of the petition to show adequate means of financial support), although thy can sometimes be filed concurrently.

 

What is the difference between I 864P and I-864?

The I-864P refers to the federal poverty guidelines needed to complete Form I-864, Affidavit of Support. An affidavit is needed in most family-based applications for lawful permanent residence, where the sponsor providing the affidavit must meet a minimum income requirement.

 
This article does not constitute direct legal advice and is for informational purposes only.

Author

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.

Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

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