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Guidance On Affidavits Of Support

by Alice M. Yardum-Hunter, Esq.

When a person becomes a permanent resident (“green card” holder) of the United States, the general rule is that the person must prove that s/he is not likely to become a public charge. Simply, this means that the person must prove that the U.S. government will not likely become financially responsible for the person. This is one of several requirements of admissibility to the U.S. When petitioned by a family member or in the event of petition by an employer in which the person immigrating owns at least 5% of the business, Form I-864 (Affidavit of Support) must be filed to meet this requirement. There is another Affidavit of Support form, the I-134, but this form is used for some temporary entrants and other limited permanent resident entrants, most notably, spouses and children of employment-based aliens. The vast majority of immigrants who are required to file an Affidavit of Support must file the I-864 form.

The Affidavit of Support form includes information about the “sponsor” as well as the alien. The sponsor is the petitioner, but sometimes, when the petitioner does not have sufficient income or assets, there can be one or more co-sponsors (living with the alien) or joint sponsors (not living with the alien).

On November 23, 2005, CIS Acting Director for Domestic Operations, Michael Aytes, issued a memorandum which provides guidance on current policy relative to I-864 Affidavits of Support. The practice and section 213A(f)(6)(A)(i) of the Immigration and Nationality Act until then required that the sponsor submit copies of the sponsor’s three most recent Federal income tax returns. But the Act provides discretion to submit only the sponsor’s most recent Federal income tax return. Without discretion exercised, filings for adjustment of status often consisted of voluminous pages just of tax returns before the change in policy took effect. Fortunately, the discretionary provision by the Aytes memo now is the policy of the CIS. From the date of the memo, only the immediate prior year tax return is required. However, a sponsor is not limited to only filing the one return and can submit the prior two as well, if they will strengthen his or her financial wherewithal. In situations where only one tax return is filed though, a case could be denied, if judgment is not exercised carefully. A sponsor is not necessarily given the opportunity to provide the additional tax returns later in the case, before decision is reached.

The I-864 form is sufficient to meet the requirement of the law when the sponsor has income of more than 125% above the poverty guideline. The required amount depends on the number of dependents the sponsor has, where s/he lives. It varies each year. There are exceptions for certain kinds of employees who only need to meet the 100% poverty level. Until the Aytes memo, in addition to tax returns, letters of employment and pay stubs or other proof of payment for services were required to be filed with the I-864 form. But now, so long as the sponsor meets the poverty guideline percentage, this additional evidence is unnecessary. When the income dips below the poverty guideline, and there is no other proof that the required income level is otherwise met, then the additional evidence will be required.

Before looking to other sponsors’ income, in the event that a sponsor’s income does not meet the poverty guideline for the prior year, the CIS will request the current year’s income information, in lieu of more information on prior years. In this instance, the current year poverty guideline will be used rather than the year the Affidavit was signed. As long as sponsors have sufficient income, much paper will be saved and more trees will be happy that they don’t end up in CIS files. This new policy is a very welcome benefit to all those involved with the adjustment of status to permanent residence process. The sole caveat is to avoid documenting a case too little. If judgment lacks, then a denial would have to be surmounted, with attendant consequences.

About The Author

Alice Yardum-Hunter has exclusively practiced immigration law for 25 years. She is a Certified Specialist by the State Bar of California Board of Legal Specialization, a former Commissioner to the Board, and for 2004 and 2005 is honored as a "Super Lawyer" published by Los Angeles Magazine after survey conducted by Law and Politics, which asked 65,000 regional lawyers to name the best lawyers whose work they'd personally experienced in action, taking into account not just reputation. Thereafter, to make the final list, apparent winners were researched for disciplinary actions and passed muster of a Blue Ribbon panel of judges in the field.

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

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