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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

The ABCs Of Immigration - Affidavits Of Support
by Greg Siskind and Amy Ballentine

In March, the House voted to approve H.R. 1892, the Family Sponsor Immigration Act of 2001 by an overwhelming margin of 404 to 3. The bill, which passed the Senate by unanimous consent in December, was sent to President Bush, who was expected to sign it. This bill amends the Immigration and Nationality Act to allow a new sponsor for an affidavit of support when the original petitioner has died. Until now, in most cases, when this occurred, the application for immigration would have to be abandoned because the petitioner in the I-130 would not be able to complete an affidavit of support. H.R. 1892 allows close family members, defined as (a 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, or grandchild) to file the affidavit of support.

In light of this good news, we decided to revisit the issue of affidavits of support.

For many applicants seeking entry to the United States, the government will require proof that the alien will have adequate financial resources to support themselves while in America. This is the case for certain non-immigrant visas, particularly those where the applicant is not permitted to work while in the US. Form I-134 Affidavit of Support is often used in this situation. People seeking to immigrate to the US must demonstrate that they will not become a “public charge” after entering the US. A provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created a new Affidavit of Support, Form I-864, which is much more extensive than the I-134, and creates a legal obligation on behalf of the person who signs it. This legal obligation means that the sponsored immigrants, the federal government or any state government can sue the sponsor if the sponsor fails to support the immigrant. The Affidavit is enforceable either until the immigrant naturalizes or has worked for ten years.

Affidavits of Support are required in all family based immigration cases, and in employment based cases where the alien is related to the owner of the petitioning company.

The key to the Affidavit of Support is the annual poverty level, determined by the Department of Health and Human Services. Sponsors must earn at least 125% of the poverty level, except for sponsors who are on military active duty, who must be able to show income equal only to the poverty level. The poverty level varies with the number of members of a household. The sponsor’s income must be above the poverty level for the size of the household plus all sponsored immigrants.

In the event the primary sponsor does not earn enough, they can get a co-sponsor. This is done on Form I-864A. The co-sponsor must be a family member, by birth, marriage, or adoption. The co-sponsor becomes legally obligated to provide the same support as the primary sponsor, and the obligation does not end until the immigrant’s naturalization, or until the immigrant has worked for ten years.

In meeting the poverty guideline, sponsors can rely on all sources of income. In the event that income is not sufficient to meet the income level required, the sponsor can rely on assets. It must be possible to use the assets for the support of the immigrant, and the assets must be convertible into cash within one year.

In addition to all of the other obligations, sponsors and co-sponsors must keep the INS informed of all changes of addresses. Fines can be imposed for failing to do so.

For 2002, the federal poverty guidelines are as follows:

48 Contiguous States and the District of Columbia

Size of family Poverty guideline 125%
1............................................... $8,860………………$11,075
2............................................... 11,940………………14,925
3............................................... 15,020………………18,775
4............................................... 18,100………………22,625
5...................…......................... 21,180………………26,475
6............................................... 24,260………………30,325
7............................................... 27,340………………34,175
8............................................... 30,420………………38,025

For family units with more than 8 members, add $3,080 for each additional member, and $3,850 to meet the 125% level.

Alaska

Size of family Poverty guideline 125%
1............................................... $11,080……………$13,850
2............................................... 14,930………………18,663
3............................................... 18,780………………23,475
4............................................... 22,630………………28,288
5...................…......................... 26,480………………33,100
6............................................... 30,330………………37,913
7............................................... 34,180………………42,725
8............................................... 38,030………………47,538

For family units with more than 8 members, add $3,850 for each additional member, and $4,813 to meet the 125% level.

Hawaii

Size of family Poverty guideline 125%
1............................................... $10,200……………$12,750
2............................................... 13,740………………17,175
3............................................... 17,280………………21,600
4............................................... 20,820………………26,025
5...................…......................... 24,360………………30,450
6............................................... 27,900………………34,875
7............................................... 31,440………………39,300
8............................................... 34,980………………43,725

For family units with more than 8 members, add $3,540 for each additional member, and $4,425 to meet the 125% level.


About The Author

Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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