The New York Immigration Coalition ("NYIC") recently conducted a training discussing the legal, procedural, and regulatory issues contained in the Form I-864, Affidavit of Support ("I-864, Affidavit of Support"). I attended this training and write this article based on what I learned as well as my experiences in preparing affidavits of support as a legal assistant.
A vital component to successfully completing an application for legal residence in the United States is the I-864, Affidavit of Support. Prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), the Form I-134, Affidavit of Support was used to satisfy this requirement. However, IIRIRA created a more stringent Affidavit of Support, which includes stronger language about the financial responsibilities of the petitioner towards the intending immigrant, and the penalties of not complying with these requirements. The purpose of filing an Affidavit of Support is to demonstrate that the intending immigrant will not become a public charge and dependent on government benefits.
In contrast to the I-134, Affidavit of Support, the current I-864, Affidavit of Support, is a legally enforceable contract between the sponsor and the United States government. The contract exists from the time the immigrant is granted legal status for up to ten years or until the immigrant becomes a citizen, whichever period is shorter. Also, if the immigrant completes forty qualifying quarters as per title II of the Social Security Act, the I-864, Affidavit of Support is no longer enforceable. If at any point during the enforceable period, however, the immigrant receives a means tested public benefits, the sponsor can be sued by a Federal, State or local government agency for that amount.
Any intending immigrant who is being petitioned by a family member is required to submit the I-864, Affidavit of Support. An I-864, Affidavit of Support, is also required if the immigrant is seeking legal permanent resident status based on employment sponsorship, and the employer is a family member that owns more than 5% of the business. For the purposes of the I-864, Affidavit of Support only the petitioner serves as the sponsor. By filing the I-864, Affidavit of Support, the sponsor is demonstrating that it can provide financial support to maintain the intending immigrant at an annual income of not less than 125% of the Federal Poverty Lines, and thus, that the intending immigrant will not become a public charge. The 2002 Federal Poverty Line amounts can be found at http://aspe.hhs.gov/poverty/02poverty.htm. Since the determination that an immigrant is likely to become a public charge is grounds for denying an application for legal permanent resident status, it is vital for the I-864, Affidavit of Support, to be properly filled out.
While the I-864, Affidavit of Support, only requests information regarding the petitionerís income and assets, Section 212(a)(4) of the INA prescribes the entire list of factors that should be used to determine if an immigrant will become a public charge. Factors such as age, health, family status, assets, resources and financial status, education and skills must be examined as well. Thus, in a marriage where both husband and wife are attending graduate school and their combined income is barely sufficient to meet the Federal Poverty Lines for their household of two, factors such as employability after their program is over, and education, skills, or age are essential to highlight. In all cases, the officer examining your I-864, Affidavit of Support, must look at the totality of the circumstances in order to make a determination on the likelihood that you will become a public charge.
As previously stated, the petitioner in an application for legal permanent resident must also serve as the sponsor for purposes of the I-864, Affidavit of Support. The sponsor must be a US citizen or national or have legal permanent resident status. Also, the sponsor must be at least 18 years old, reside in the US or in a US territory or possession and demonstrate means to maintain an annual income of at least 125% of the Federal Poverty Line. One exception is an individual who is on Active Duty with the Armed Forces and who is petitioning for their spouse or children. These individuals are only required to show income equal to at least 100% of the Federal Poverty Line requirement. Your particular income requirement is determined by calculating your household size.
A household size tabulation includes the sponsor, all relatives by blood, marriage or adoption residing in the sponsorís household, all dependents listed on the sponsorís most recent tax return (whether or not they reside in the sponsorís household), all individuals for whom the sponsor has signed an I-864, Affidavit of Support and for whom the contractual obligation still exits, the intending immigrant (principal applicant) and the principal applicantís dependents. For instance, if the sponsor is signing on behalf of a sibling, and the sponsor has three dependents (a spouse and two minor children) and the intending immigrant plans to bring along their three minor children, household size is eight (8).
The I-864, Affidavit of Support, requires the sponsor to provide evidence of his/her ability to maintain the required income level. This evidence includes certified copies of the sponsorís Federal Income Tax Return for the last three years, and if employed, a letter from the sponsorís employer verifying salary and expected tenure. If the sponsor cannot meet the income requirement, he/she can combine the intending immigrantís income, show significant assets, or obtain a Joint Sponsor. A significant asset refers to savings accounts, stocks, bonds, certificates of deposit, real estate, or other assets whose combined cash value (the total value of the assets minus any offsetting liabilities) must exceed five times the difference between the sponsorís household income and the Federal Poverty Line. If assets are being considered, the sponsor must also present evidence of all mortgages, liens and liabilities against the claimed assets. If the intending immigrantís income is counted towards meeting the 125%, Form I-864A, must also be submitted.
Form I-864A, or Affidavit of Support Contract Between Sponsor and Household Member, establishes an agreement between the sponsor and the intending immigrant or other household member using his/her income to meet the required 125% or more of the Federal Poverty Line, to share liability in the event the intending immigrant receives any means tested public benefit.
Obtaining a Joint Sponsor is another way for the intending immigrant to meet the requirements for legal permanent resident status. A joint sponsor assumes the same responsibilities and obligations to the intending immigrant and all those following to join, as the primary sponsor. Thus, the joint sponsor must execute a separate I-864, Affidavit of Support, and provide the same documentary evidence establishing his or her ability to maintain the immigrant, all dependents, and all immigrants following to join the principal immigrant, at a level equal to at least 125% of the Federal Poverty Line.
The requirement that the sponsor to be domiciled in the United States, which includes any territory or possession of the United States, is also problematic if the sponsor is temporarily living abroad. A domicile is defined as the place where a sponsor has a residence in the United States, with the intention of maintaining that residence in the foreseeable future. If the sponsor lives abroad in order to qualify as a sponsor, the individual must demonstrate that his/her principle residence is in the U.S. and that he or she plans to return to the U.S. once the overseas obligations are complete.
INS regulations prescribe certain conditions when the sponsor retains his/her domicile in the U.S. for purposes of the I-864, Affidavit of Support. Specifically, if the sponsor is employed by the government of the United States, is working at an American institution of research recognized as such by the Attorney General, or at an American firm or corporation engaging in whole or in part in the development of foreign trade and commerce with the U.S. subsidiary thereof or if the sponsor is working for a public international organization in which the U.S. participates by treaty or statute. Also, domicile is maintained if the sponsor performs certain ministerial or priestly functions as part of a bona fide organization recognized in the U.S. and is stationed abroad.
In situations where an individual is temporarily living, studying or teaching abroad for reasons other than the above, the individual has the burden of satisfying the consular officer or INS official that he/she did not give up the U.S. residence. Some examples include evidence that he/she is finding US employment, locating a place to live, registering children at U.S. schools, or other indications of residence. In these unusual cases, the sponsor is also advised to make arrangements to relinquish their residence abroad. It is vital to note that the intending immigrant cannot enter the U.S. prior to the sponsorís return to the U.S., they must either enter with the sponsor or after the sponsor has physically return from abroad.
Procedurally, if the immigrant is seeking adjustment of status, the I-864, Affidavit of Support, should be filed with the INS at the initiation of the case. For those seeking an immigrant visa through consular processing, two scenarios are possible. If the consulate is a designated Alpha post, the I-864, Affidavit of Support, will be requested by the National Visa Center for pre-screening. If the consulate is a designated Beta post, then the I-864, Affidavit of Support, is only requested at the time of the consular interview itself, and there is no pre-screening. Currently, there is no available breakdown of the designated Alpha and Beta posts. If the National Visa Center requests the I-864, Affidavit of Support, then it must be provided at that time, otherwise, the intending immigrant should present it and all other supporting documentation at the time of his/her interview.
Again, the execution of an I-864, Affidavit of Support, under Section 213A of the INA creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, States, of local governmental agency or private entity that administers any means-tested public benefits program. Once it is executed, the sponsor or joint sponsor will be held liable for any means tested public benefit the immigrant may seek during the enforceable period. The NYIC and members of the audience emphasized that their seemed to be no regulatory mechanism in place to determine if someone is liable for an immigrantís receipt of public benefits. Thus, the effects of enforcing the I-864, Affidavit of Support have not yet been seen. Given the rapid changes in INS policies and procedures, however, the lack of current regulation of the I-864, Affidavit of Support, should not diminish the severity of its obligations and terms.
Due to the serious implications of signing an I-864, Affidavit of Support, a thorough understanding of the I-864, Affidavit of Supportís terms and conditions, is highly recommended before one signs or files.
 Means tested public benefit refers to any public benefit funded in whole or in part by the Federal Government as described by the 1996 Personal Responsibility and Work Opportunity Reconciliation Act, Public Law 104-193, or a State means-tested public benefit. These include any cash assistance, Medicaid, TANF, SSI, and Food Stamps.
 In cases where the petitioner has died, there are rare exceptions. P.L. 107-150 allows for an alternative sponsor if the Attorney General determines that the petition should not be revoked for humanitarian reasons. An alternative sponsor must be a spouse, parent, mother or father-in-law, sibling, child at least 18 years of age, son, daughter, son or daughter-in-law, brother or sister-in-law, grandparent, or grandchild of sponsored immigrant.