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Ten Pitfalls To Avoid With The Affidavit Of Support

by Charles Wheeler

In mid-July the USCIS finalized its regulations governing the affidavit of support. The new forms (I-864, I-864EZ, I-864A, and I-864W) are now required to be used in all family-based immigrant visa cases, as well as some employment-based cases. While the agency must still resolve some important issues that have resulted from these changes, we are now at a point where we can make some suggestions on how to complete the forms and avoid common pitfalls.

#1. Don't File the I-864 When It's Not Required. The agency has created a new Form I-864W that can be filed in lieu of an affidavit of support in cases where the intending immigrant has either gained 40 "qualifying quarters" or can be credited with them from a spouse or parent. The intending immigrant can only earn quarters by posting wages to a valid social security account in his or her name. This is not the same as an Individual Taxpayer Identification Number (ITIN). For the last 20 years or so, only non-citizens who had INS/USCIS employment authorization were eligible for a social security number that allowed posting of earnings. However, once the account was opened and the social security card issued, wages that were earned when the non-citizen no longer had valid employment authorization were still able to be posted and counted toward qualifying quarters. The same is true of earnings posted to a fictitious account or someone else's account, if the worker subsequently obtained a valid account and unscrambled his or her past earnings to gain credit for them.

The worker can only earn four quarters per calendar year, but he or she is eligible to gain credit for all the quarters earned by the spouse during marriage, assuming the couple is still married. And children can gain credit for all the quarters earned by either or both parents up until the child turned 18 (including quarters earned before the child was born). Stepchildren can gain credit for quarters earned after the stepparent relationship was formed.
After age 18, the child may still count those quarters, but he or she no longer gets credit for additional ones earned by the parents.

The other way for the intending immigrant to qualify for the I-864 exemption is to be a child (other than a stepchild) under 18 who will reside in the lawful custody of at least one U.S. citizen parent after immigrating. Pursuant to the Child Citizenship Act of 2000, these children will become U.S. citizens automatically upon acquiring lawful permanent resident (LPR) status.

Complete and file Form I-864W when the intending immigrant either has the necessary 40 qualifying quarters or will derive citizenship. If the former, submit a copy of the Social Security earnings report that shows total earnings. Since the amount of wages needed to earn one quarter for Social Security coverage has increased incrementally each year (in 2006 it is $970), it may be necessary to refer to a table that lists the amount of wages needed for each corresponding year. To access such a table, go to this Web site: http://www1.dshs.wa.gov/esa/eazmanual/Sections/CitizenAppendix_IV.htm.

The intending immigrant is no longer obligated to submit a statement verifying that the worker did not receive a means-tested public benefit during any period when quarters were earned after January 1, 1997. The I-864W is to be signed by the intending immigrant, unless the child is under 14 and the parent is a U.S. citizen. Remember that the I-864W is now required for VAWA self-petitioners and widow/widowers at the adjustment stage where prior practice did not require the filing of either an affidavit of support or exemption form.

#2. Measure Household Size Correctly. The final rule eliminates the term "related by birth, marriage, or adoption" when measuring household size. The sponsor must now count the following persons, regardless of where they reside: (1) the sponsor, (2) the sponsor's spouse, (3) the sponsor's unmarried children under 21, (4) any claimed dependents on the last tax return, (5) the intending immigrant, (6) any accompanying, derivative family members (spouse or unmarried children of the principal beneficiary who will immigrate with the principal or within six months), (7) persons on whose behalf the sponsor has previously submitted an I-864 and that affidavit of support is still in effect. In addition, the sponsor may include as part of the household size other relatives (adult or married children, parents, or siblings) who are residing with the sponsor and who have income to contribute. Remember that whenever the sponsor is relying on income from a relative, include proof of the family relationship and residence with the sponsor.

The sponsor must include all of his or her children, including adopted or stepchildren, even if the sponsor does not have legal custody of them. The only exception is stepchildren who do not reside with the sponsor, were not claimed as dependents, and are not being petitioned by the sponsor. Do not include any child who has been emancipated in accordance with the laws of the jurisdiction where he or she resides. Include the sponsor's children even if they are derivatives of the principal beneficiary and will be following-to-join (immigrating more than six months later).

Line 9 of the I-864 asks the sponsor to identify the accompanying, derivative family members. It specifies that the sponsor is not to include any family members who are being petitioned on separate I-130s. For example, if a U.S. citizen is petitioning his parents, the sponsor counts one of the parents as a household member, but not both, when completing the I-864 for that parent. He or she counts the second parent as a household member, but not the first, when completing the I-864 for that second parent.

#3. Use Current Income Rather than Past Income. The regulation now states that the financial sufficiency of the affidavit of support shall be based on the sponsor's "reasonably expected household income" for the year in which the affidavit is filed. Line 23 of the I-864 asks for the sponsor's "current individual annual income." This phrase is not defined, but the step-by-step instructions indicate that the sponsor may include "expected income for the current year." It seems clear that the USCIS wants sponsors to extrapolate from their present situation and estimate what their total income will be for the current calendar year.

This income could be earned, such as wages, or unearned, such as dividends or interest from savings and retirement funds. It could also include nontaxable income in the form of alimony and child support. It could include retirement benefits, workers and unemployment compensation, and disability benefits, but it may not include means-tested benefits such as Supplemental Security Income (SSI) or Temporary Assistance to Needy Families (TANF).

If the sponsor were unemployed during part of the year, but is now employed, should he or she put on line 23 the new annual salary or what he or she expects to earn this calendar year? The same question could be asked for sponsors who recently changed jobs or received a salary increase. An alternative interpretation to putting down how much they plan to earn this year is to list their current annual salary, which would presumably be a higher figure. For example, if the sponsor was unemployed for the first half of the year, but is now working and earning an annual salary of $30,000, a possible interpretation of the phrase "current individual annual income" would be to list $30,000 rather than $15,000. Until we receive further clarification, that appears to be at least an arguable reading.

#4. Include the Intending Immigrant's Income in Certain Situations. The sponsor can include the intending immigrant's income on line 24b of the I-864 if the intending immigrant either resides with the sponsor or is the sponsor's spouse. The final rule added a new requirement, however. The intending immigrant's income must be derived from "lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status." This means that if the intending immigrant is residing in this country, he or she must currently be working with USCIS employment authorization. It also means that, regardless of where the intending immigrant is residing, he or she must establish that the current source of income will continue after acquiring LPR status.

The USCIS has not defined the term current, lawful "source" of income. It could include the income from those who are employed by a specific employer, as well as from those who are self-employed. If the intending immigrant is employed abroad, presumably the worker cannot include that income unless he or she will be working for the same employer or company (e.g., at a multi-national corporation) upon transfer to this country. But if the intending immigrant is self-employed and will continue that same self-employment after immigrating, that should be sufficient.

The intending immigrant does not need to execute an I-864A unless he or she has a derivative spouse or child who will be accompanying the intending immigrant. Only household members who execute an I-864A must include a copy of their tax return for the prior tax year. Therefore, if the couple is recently married and did not file a joint tax return in the prior year, simply include the sponsor's last tax return and indicate the alien spouse's current income on line 24b. No proof of the intending immigrant's current or past income is required beyond establishing that it is lawful and will continue.

#5. Attach Employer's Statement, Pay Stubs, and Three Years of Tax Returns in Borderline Cases. The new rule requires the submission of only the sponsor's last year's tax return not the last three and drops altogether the requirement of filing proof of current income. However, in cases where the USCIS adjudicator or consular official questions the sponsor's estimate of current income, or believes that it is inconstant, he or she may request the last three tax returns, as well as an employer's statement and pay stubs/wage receipts.

A red flag will certainly go up in cases where the sponsor is estimating a substantial increase in current income over what was reported on last year's tax return. [Note, however, that line 23 of the I-864 asks for current individual income, while line 25 asks for total income reported for the most recent tax year, which could include income from the spouse on a joint return]. This is particularly problematic for self-employed sponsors, who will need to obtain a statement from a tax preparer or an independent assessment from an accountant justifying the sponsor's stated income from this business.

I would recommend filing all three years of tax returns and proof of current income in cases where you predict the adjudicator will question the sponsor's estimate of current income. If the consular official refuses the immigrant visa application pursuant to INA 221(g) and requests this additional information, it could delay the final adjudication for weeks or months.

That same consular official will also be judging the sponsor's income on what he or she earns at the time of the later submission, not on the date the affidavit was filed. In addition, the consular official will be using the Poverty Income Guidelines in effect at the time of adjudication, not at the time of filing.
These guidelines inch up every year.

#6. List the Correct Income reported to the IRS. Self-employed sponsors are treated somewhat differently than those who work for an employer. Both are required to submit either an IRS-issued transcript (obtained free of charge by filing IRS Form 4506T) or a photocopy of the federal tax return that they filed. If they elect to file a photocopy, they must include a copy of the W-2, Form 1099, and all schedules filed with the return. The self-employed are required to submit every Form 1040 schedule, including Schedule C, D, E, or F. Both are also required to list "total income" that they reported on their federal tax return.

For those who work for an employer, total income is their "gross income" as reported on line 22 of the 2005 IRS Form 1040 or line 15 of Form 1040A. This is the income before making adjustments for such things as moving expenses, individual retirement accounts, student loans, alimony, etc. For those who file the Form 1040EZ, it will be "adjusted gross income" as reported on line 4. Persons who file the 1040EZ have incomes less than $50,000 and do not itemize deductions. The 1040EZ does not allow for any adjustments to income.

Sponsors who are self-employed will be reporting total income after adjusting for all business-related deductions. This figure is taken from line 31 of Schedule C of the 1040 [Ed. corrected 11/28/06]. It is obtained from taking the gross receipts of the business and deducting all allowable expenses to arrive at a net profit. These expenses can include telephone, travel, materials and supplies, insurance, etc. The USCIS believes that this is a consistent approach, since the agency is trying to determine the funds that are actually available to support the intending immigrant(s). But the self-employed typically report low taxable income, and thus have a harder time meeting the financial requirements of the affidavit of support. In addition, as explained earlier, they have a greater burden in justifying what they report as current individual annual income.

#7. Don't Overreact If No Prior Tax Returns. Line 25 of the I-864 asks the sponsor to indicate whether he or she will be submitting only the last tax return or one from the prior three tax years. The sponsor must still indicate what he or she reported as total income for those three prior years. This presumes, however, that the sponsor had a tax liability. The regulations and step-by-step instructions explain how the sponsor who did not earn sufficient income to trigger a tax liability may submit a separate statement explaining that.

Presumably, there would be no additional proof required, given that it would be difficult for the sponsor to establish that he or she was unemployed for a certain period. But if the sponsor is claiming a tax exemption, he or she must submit a "written explanation including evidence of the exemption and how [the sponsor] is subject to it."

The USCIS has stated that it plans to add a separate box in line 25 for sponsors to check if they did not have a tax liability for the most recent tax year. For now, just check the first box (even if they did not file a tax return) and write in "see attached." Otherwise, the sponsor may file a tax return and indicate no tax liability. These tax returns could be filed for prior years without triggering any penalties.

#8. Use Multiple Joint Sponsors Appropriately. When the petitioning sponsor is not able to satisfy the financial requirements, after counting all household income and assets, he or she may use a joint sponsor. In that case, the petitioning sponsor's income becomes irrelevant. In other words, the petitioning sponsor and the joint sponsor may not pool their income to meet the financial requirement. Nor may they divide up a family that consists of a principal and accompanying, derivative beneficiaries. If a joint sponsor is required, that joint sponsor not the joint sponsor and the petitioning sponsor must take responsibility for all the intending immigrants. What is new with the final rule is the possibility of using two joint sponsors. One joint sponsor, for example, could take responsibility for (count as a household member and include in Part 2 of the I-864) the principal beneficiary and the second joint sponsor could take responsibility for the derivatives.

But in the situation where the derivative family members will be following-to-join, they do not have to be included as part of the petitioning sponsor's household size. In other words, the petitioning sponsor might be able to divide up the family by staggering their adjustment or consular processing so that the petitioning sponsor takes responsibility for the principal beneficiary and the joint sponsor(s) take responsibility for the following-to-join derivatives. For example, in the case where a U.S. citizen brother petitions for his sister, the sister's spouse and two children could immigrate more than six months later. These derivatives do not have to be counted as part of the U.S. citizen's household size. The brother may file an I-864 on behalf of the sister and use two joint sponsors to file affidavits of support for the derivatives when it is time for them to immigrate.

The other way for this to operate is for the petitioning sponsor to file multiple I-130 petitions for all the intending immigrants. For example, an LPR spouse/parent has the option of filing one I-130 petition for the alien spouse and counting the unmarried children under 21 as derivatives. Or the LPR may also file separate I-130 petitions for the children. In the latter case, the petitioning sponsor may divide up the family in such a way to allow his or her taking responsibility for some of the family members and using multiple joint sponsors for the others. In the above example, let's presume that an LPR husband has filed separate I-130s for the spouse and three children. As the petitioning sponsor, he can take responsibility for the spouse and not the children (do not include them on line 9 of the I-864). But since he would still have to count all the children as part of his household size on line 21d, there is no benefit in doing that. More significantly, he could use a joint sponsor for the spouse and separate joint sponsors for each of the children.

#9. Make Proper Use of Assets. The final rule and new form clarify which assets the sponsor may use in lieu of income to satisfy the financial requirements. Only include assets if the current income from the sponsor and all household members is below the 125 percent line for the household size (100 percent for members of the Armed Forces in active duty petitioning for their spouse or child). Include "significant" assets of the intending immigrant and all household members who signed an I-864A. The type of assets that can be counted include cash, stocks, bonds, CDs, an automobile (provided the owner has more than one in operating condition), and real estate. If counting real estate, make sure to include proof of ownership, a bank statement indicating how much is still owed, and a recent appraisal from a licensed appraiser. It is still unclear whether consulates will allow the intending immigrant to count the value of real estate owned in the foreign country. Historically, the U.S. consulate in Ciudad Juarez has always refused to consider it.

Under the prior rule, the assets had to total five times the shortfall in income. Now, if the sponsor is a U.S. citizen petitioning for his or her spouse or child over 18, the assets need only be three times the shortfall. This apparently applies to both petitioning sponsors and joint sponsors.

#10. Substitute Sponsors. If the petitioner dies after the I-130 is approved but before the intending immigrants acquire LPR status, they may move to reinstate the petition based on humanitarian grounds. This will not apply if the petitioner dies before the I-130 is approved. Nor will it apply if the principal beneficiary dies and it is the derivative beneficiaries who are seeking to immigrate. The law allows for the intending immigrant to submit an affidavit of support from a substitute sponsor, assuming there is the necessary family relationship or guardianship. Don't forget to submit the motion to the USCIS office that approved the I-130 petition and include a detailed declaration from the intending immigrant describing the humanitarian factors in the case. If the substitute sponsor does not have sufficient income, he or she may secure a joint sponsor who does.

If the petitioner is a U.S. citizen and the intending immigrant is a spouse, determine whether the surviving spouse qualifies for widow/widower status. If the couple had been married for at least two years and the U.S. citizen died less than two years ago, the widow/widower is eligible to file for special immigrant status through an I-360 petition. If the deceased U.S. citizen spouse had already filed an I-130 petition, it will convert automatically to an I-360, thus obviating the need to file a separate petition. If the I-130 had been approved prior to the citizen's death, it will be treated as an approved I-360, thus allowing the widow/widower to file directly for adjustment of status. If the widow/widower is ineligible to file for adjustment (e.g., unlawful entry), and thus will have to consular process, be mindful of the unlawful presence bar and the absence of any qualifying relative for a possible waiver application.


About The Author

Charles Wheeler, Esq. is the Director of Training and Technical Support at the Catholic Legal Immigration Network (CLINIC). He is also the editor of "Child Status Protection Act: A Practitioner's Guide, New 2006-2007 Edition" and "Family-based Immigration: A Practitioner's Guide, New 2006-2007 Edition".


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


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