Recent Public Information Sheet for Affidavits of Support
Posted Oct 12, 1998

In a June 23, 1998 cable update No. 16, the U.S. Department of State (DOS) released the public information sheet on the Affidavit of Support for the benefit of Department of State consular officers and for the public at large. Although the Law Office of Sheela Murthy has provided several articles and summarized several cables pertaining to this topic, we find that there still exists confusion on several matters pertaining to Affidavits of Support. Highlights from the Public Information Sheet which answers commonly asked questions on the Affidavit of Support are summarized below.

In the case of an applicant who submitted his/her first visa application form (I-230) prior to December 19, 1997, but has not yet qualified for an immigrant visa, would in most cases be exempt from the requirement for an I-864 affidavit of support. As long as the initial application was made prior to December 19, 1997, the applicant will, in most cases, be subject to previously existing public charge provisions and will not be required to submit an I-864. Should a new immigrant visa application, Form I-230, be required after December 19, 1997, however (for example if more than 12 months have passed since the original interview), then the new provisions will apply and the petitioner must provide an I-864.

Section 213A of the Immigration and Nationality Act (INA) of 1952, as amended limits use of the I-864 to the specified immigrant visa cases. These are family-based immigrants, including orphans and applicants for employment-based immigrant visas where a relative filed the immigrant visa petition or has a five percent or greater ownership interest in the business that filed the petition. All other applicants who might require an affidavit of support should use Form I-134.

The Dept. of State has confirmed that persons who are in immigrant visa categories that do not require the I-864 affidavit of support need not conform with the income and documentary requirements of the new public charge provisions. This is indeed good news since the Law Office of Sheela Murthy has witnessed cases where consular officers were requiring the new income requirements even thought the law did not require it. Hopefully, we will notice a change by consular officers in this regard.

Since fiancées are technically nonimmigrant visa applicants, they should use the I-134. They will, however, have to submit an I-864 to INS at the time of adjustment of status in the United States.

Diversity Visa (DV) or returning resident (SB) applicants should use the I-134. The I-864 can only be used in the specified categories (most family-based and certain employment-based cases). All other cases must use the I-134 if an affidavit of support is needed.

A petitioner with limited financial resources sponsor only the principal alien and not his/her spouse and eligible children. The principal applicant must be one of the sponsored immigrants, however. By limiting the number of sponsored individuals, the petitioner would reduce the household size and thereby face a lower minimum income requirement. The petitioner would still be able to file another affidavit of support on behalf of the principal applicant's eligible dependents at a later date when the petitioner and the principal applicant have improved their financial situation. When the petitioner files a new affidavit of support for the remaining eligible family members, the principal applicant, and any of his/her family members who may have already immigrated, would be included in the household for that I-864.

A divorced parent's dependent children are members of his or her household, even if they live part of the time with the other former spouse. A parent always has a legal obligation to support his or her children. Although, only one of the parents may be legally entitled to claim the child as a dependent on the tax return, the child must be considered as part of both parents' households for purposes of the affidavit of support unless a parent can show that he or she has been relieved of any legal obligation to support the child.

Signatures on I-864 and I-864a can only be notarized by a U.S. Immigration and Naturalization Service officer, a U.S. consular officer or a U.S. notary public.

There is a statutory requirement that the sponsor must submit tax returns for each of the three years immediately prior to the visa interview in which he or she was obligated to file. Note that American citizens and legal permanent residents who are working abroad are required by IRS to file a return even if most or all of their overseas income is excluded from U.S. taxes.

The law requires that sponsors be domiciled in any of the states of the United States, the District of Columbia, or any territory or possession of the United States.

The INS office of General Counsel has determined that under the Act and regulations, a joint sponsor cannot be authorized in cases where the petitioner cannot be a sponsor by virtue of domicile. The petitioner must first meet all requirements for being a sponsor (age, domicile, and citizenship) except those relating to income before there can be a joint sponsor.

Domicile is a complex issue and must be determined on a case by case basis. To qualify as a sponsor, a petitioner who is residing temporarily abroad must have a principal residence in the U.S. with the intent to maintain that residence for the foreseeable future. Legal permanent resident sponsors must further demonstrate that they have maintained their legal permanent resident (LPR) status.

A sponsor retains his or her domicile if the sponsor is:

- employed by the government of the United States; an American institution of research recognized as such by the Attorney General; an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce with the United States or a subsidiary thereof; a public international organization in which the United States participates by treaty or statute;

or -- authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States and is stationed abroad pursuant to that calling;

or -- engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States and is stationed abroad pursuant to that calling.

There may be other circumstances in which a sponsor can show that his or her sojourn abroad is clearly of a temporary nature, so that the sponsor can be found still to have a domicile in the United States.

In cases where the sponsor has clearly not maintained a domicile in the U.S., the question becomes when the sponsor can be deemed to have re- established U.S. residence. To do this, the sponsor must have taken a credible combination of steps to make the U.S. his immediate principal place of abode. Such steps might include finding U.S. employment, locating a place to live, registering children in U.S. schools and other indices of residence. The sponsor should also have made other arrangements to relinquish residence in the third country. It is not necessary for the sponsor to precede the sponsored family members to the U.S. to reestablish residence and domicile provided that the sponsor has taken the type of concrete steps outlined above. It is important to note in such cases that a sponsored immigrant may not enter the United States prior to the sponsor's return to take up residence. He or she must either travel to the United States with the sponsor or at some date after the sponsor's entry into the U.S.

Each principal applicant (the person in whose name the visa petition was filed) must submit a signed and notarized I-864 from the petitioner, any joint I-864 that may be required and form(s) I-864A, if needed. Accompanying family members' documents whose names are listed on the signed and notarized I-864 and I-864A (if needed) may submit exact copies of the principal applicant's forms.

Only the principal applicant must submit supporting documentation (tax returns, employment letters, proof of assets, etc.). This applies only to principal applicants and accompanying dependents who are applying together for an immigrant visa or adjustment of status.

Family members who may apply for visas and travel together, but for whom separate visa petitions have been filed, must each submit a complete set of supporting documentation along with a signed and notarized I-864, any joint I-864 that may be required and form I-864A if needed.

Each joint sponsor must meet the minimum 125 percent income requirement for the indicated household size which includes: the sponsor; all household members related by blood, marriage or adoption residing in his or her household; all dependents, including those not residing in the same household, claimed on the sponsor's most recent income tax return; any individual(s) for whom the sponsor has filed a separate I-864 which is still in effect; the principal applicant; and the applicant's accompanying dependents.

If the sponsor dies after the principal applicant has immigrated to the United States but before all qualified family members who are following to join have immigrated they obtain another sponsor. Any qualified person may serve as the sponsor in such circumstances.

The death of a sponsor terminates the obligation to the sponsored immigrant(s) but the sponsor's estate remains liable for any requests for repayment of benefits that arose prior to the sponsor's death.

The I-864 must be submitted to either a consular officer or an INS officer within six months of the sponsor's signature. Otherwise a new form will be required. Once the form has been submitted and accepted by a consular or INS officer, however, it will not expire. If the form was submitted within six months of the sponsor's signature, but more than 12 months pass before the visa is issued, new supporting documents will be required (the most recent tax return(s), a current employment letter, etc.)

If the poverty guidelines change between the time the petitioner signed the I-864 and approval of an immigrant visa a new I-864 is not required as long as the I-864 was submitted to a consular officer within six months of the date it was signed and notarized. However, the petitioner/sponsor must meet the minimum income requirement based on the poverty guidelines in effect on the date of visa issuance, not those in effect at the time the form was signed.

To count assets to meet the 125 percent minimum income requirement, the sponsor would count his/her income first. If not sufficient s/he may count personal assets and/or the income and assets of qualifying household members who have signed an I-864a. If, using all of those sources, the minimum income requirement is met, the affidavit would be "sufficient." To be counted, the cash value of assets must equal five times the difference between the sponsor's income and 125 percent of the poverty line for the indicated household size. Thus for a petitioner/sponsor whose household size is four and who has an income of $18,000, his/her assets would need to equal at least $10,310 ($20,062 -- poverty level for a family of four -- minus $18,000 = $2,062, times five). S/he would also need to present evidence of all mortgages, liens, and liabilities against the claimed assets.

The above addresses some of the commonly asked questions pertaining to the Affidavit of Support forms. The Public Information Sheet is being disseminated to the public at the consulates and should be utilized by consular officers worldwide.