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New Affidavit Of Support Rule

by Cyrus D. Mehta

The new Affidavit of Support rule became effective on July 21, 2006 (71 FR 35732) adopting with changes the interim rule published on October 20, 1997. The final rule applies to adjustment applications pending on that date regardless of whether they were filed previously. The new Affidavit of Support form may be used immediately and the prior version may be used till October 19, 2006. Below is a summary of the most significant changes:

  1. New Forms

    The new forms, Form I-864 and Form I-864A, have been modified under the final rule. The rule has also introduced Form I-864EZ, EZ Affidavit of Support Under Section 213A of the Act, and Form I-864W, Intending Immigrantís Affidavit of Support Exemption.

    Form I-864EZ can only be used by I-130 petitioners who are sponsoring only one beneficiary. Form I-864W is for use in the event that a sponsor is claiming exemption from affidavit of support requirement.

    The new forms unlike the old forms do not need to be notarized or signed before a consular officer.

  2. Income Level

    The final rule, like the interim rule, implements Section 213 A of the Immigration and Nationality Act. Under this provision, to avoid a finding of inadmissibility as a public charge, an Affidavit of Support must be filed on behalf of the intending immigrant in family-sponsored and some employment-sponsored applications for permanent residency.

    Essentially, the sponsor must demonstrate that he or she can demonstrate at least 125 percent of the current federal poverty guidelines for the household size. Sponsors who are in active duty in the US Armed Forces, and who are sponsoring their spouses or minor children, only need to have an income of 100 percent of the federal poverty line for the household size.

    The new rule puts greater emphasizes on the sponsorís current income as opposed to the income demonstrated on the prior yearís tax return.

    It also requires the adjudicator to demonstrate sufficiency of the income listed on Forms I-864 and I-864A based on the sponsorís reasonably expected household income for the year in which the intending immigrant filed his immigrant visa application for adjustment of status, and based on the evidence with the forms when the intending immigrant filed the application for an immigrant visa for adjustment of status.

    If more than one year passes between the filing of the Affidavit of Support and the examination of the immigrant, the adjudicating official may request additional evidence. In that case, the sponsorís sufficiency of the income will be based on reasonably expected household income in the year the adjudicating officer makes the request for additional evidence.

    The obligation of a sponsor to support the intending immigrant only triggers once the intending immigrant obtains legal permanent residence status.

  3. Submission of Tax Return of the Previous Year Only

    The new rule modifies the previous requirement of submission of tax return from the three most recent years. The sponsor can opt either to submit federal income tax for the most recent taxable year or income tax returns for the three most recent years.

    If the sponsor has not filed the tax return for the past year, he or she must justify that there was no legal requirement to file such a return.

    The sponsor still has to check off on the form whether he/she has filed tax returns for the past three years even though the sponsor opts to submit only the past yearís tax return. Therefore, a sponsor may still be required to justify failure to file a tax return over the past three years even if he or she opts to submit the past yearís tax return.

  4. Employment Sponsored Immigrants

    In the context of an intending immigrant who has been sponsored by an employer who is a relative of the intending immigrant or who owns 5 per cent in the entity that sponsors the intending immigrant, the new rule has clarified that a ďrelativeĒ for purposes of the Affidavit of Support requirement includes only those family members who can file alien relative visa petitions, which is limited to US citizens and permanent residents. Thus, if the relative is neither a US citizen nor a permanent resident, no affidavit of support is required.

  5. Circumstances Resulting In Exemption From The Affidavit Of Support Requirement

    Others who are exempt from the Affidavit of Support requirement are:

    1. Credited for 40 Qualifying Quarters

      An intending immigrant who has worked for 40 qualifying quarters or if the intending immigrant has been credited with 40 qualifying quarters under the Social Security Act.

    2. Minor Child of US Citizen

      If a US citizen is sponsoring a minor child for lawful permanent resident status, that child would generally qualify for citizenship under Section 320 of the Immigration and Nationality Act. Thus, if the child becomes a citizen at the same time of receiving legal permanent resident status, there is no requirement to file an affidavit of support.

    3. Self-petitioners

      Self-petitioning battered spouses as well as self-petitioning widow/widowers are exempt from I- 864 requirements.

  6. Significant Assets

    The previous rule required the sponsor to show that he or she had assets five times the difference between the shortfall in the income and the poverty guidelines in the event that the sponsor could not meet the income guidelines. The new rule makes the following modifications:

    1. If the intending immigrant is the spouse or child of a US citizen (and the child has reached his or her 18th birthday), the spouse must show assets that are three times the difference between the sponsorís household income and the federal poverty line.

    2. If the intending immigrant is an alien orphan who will be adopted in the US after the alien orphan acquires permanent residence (or in whose case the parents will need to seek a formal recognition of a foreign adoption under the law of the State of the intending immigrantís proposed residence because at least one of the parents did not see the child before or during the adoption) and who will, as a result of the adoption or formal recognition of the foreign adoption, acquire citizenship under Section 320 of the Act, the sponsor must show assets that are equal to the difference between the sponsorís household income and the federal poverty line for the sponsorís household size.

  7. Household Size

    The new rule has clarified that the sponsor, in addition himself/herself, must now include only the following persons, wherever they reside: any spouse, any dependent children under the age of 21 and any other dependents listed on his/her most recent federal tax return or persons being sponsored in the affidavit of support and any immigrants previously sponsored with a Form I-864 and Form I-864EZ that the sponsor is still obligated to support.

    The new rule limits the size of the household by specifying who needs to be included as part of the household. The old rule required the sponsor to include ďall persons living at the same residence with the sponsor who are related to the sponsor by birth, marriage, or adoption.Ē This extended the household size, and thus the minimum income obligation, to various family members who are in the same residence such as parents, siblings, uncles, aunts, etc.

  8. Household Income

    While the new rule has limited the size of the household, it allows the sponsor to meet the requisite income requirements by including the income of additional relatives such as adult children, parents or siblings as long as they have the same principal residence and promise to use their income and resources in support of the intending immigrant. The new rule even allows the sponsor to include dependents who are not living in the principal residence but have been listed on the sponsorís federal tax return to be part of the household size. All these relatives and dependents must sign Form I-864A.

    The new rule eliminates the requirements that qualifying household members should be residing with the sponsor for at least six months. Moreover, the new rule continues to allow the income from the intending immigrant to also be combined with the sponsorís income.

    Unlike other relatives, the intending immigrant is not required to executive an I-864A unless the intending immigrant has a spouse or children immigrating with him or her. In this instance, the Form I-864A has to be executed as it relates to support the spouse or children of the intending immigrant.

  9. Joint Sponsor(s)

    As in the old rule, a joint sponsor can submit a separate form I-864 in the event that the petitioner, and primary sponsor, cannot meet the income requirement for the household size. The new rule also allows for a maximum of two joint sponsors to support different family members.

    Thus, if the first joint sponsor completes Form I-864 for some rather than all the family members, a second qualifying joint sponsor will be required to sponsor the remaining family members. There may be no more than two joint sponsors. A joint sponsor must be able to meet the income requirements for all the person she or she is sponsoring without combining resources with the petitioning sponsor or another joint sponsor.

  10. Substitute Sponsor

    If the original petitioner has died after the I-130 petition was approved, the rule allows for a substituted sponsor to complete Form I-864 on behalf of an intending immigrant. It should be noted that an I-130 petition is automatically revoked when a petitioner dies, but it is possible to reinstate the petition on humanitarian grounds.

    The substitute sponsor must be a relative to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian. The substitute sponsor must also be a US citizen or legal permanent resident.

  11. Further References This summary only reflects the most important changes. For further details, please read the regulation Affidavit of Support on Behalf of Immigrants and the instructions preceding Forms I-864, I-864A, I-864EZ and I-864W

. This article originally appeared on www.cyrusmehta.com on May 12, 2006.


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.


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


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