Form I-864, Affidavit of Support Under Section 213A

Family-Based Immigration

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The Form I-864 Affidavit of Support is an immigration form issued by the US Citizenship and Immigration Services (USCIS) under the Department of Homeland Security. Form I-864 is a legal affidavit that functions as a contract of support between the sponsor of an intending immigrant and the US federal government, guaranteeing the intending immigrant financial support while they are in the United States.

More specifically, in a Form I-864 Affidavit of Support, the sponsor promises the US government that they will provide sufficient financial support to allow the intending immigrant’s income to reach at least 125 percent of the poverty line specified in the US Government Poverty Guidelines. Currently, this adds up to about $21,000 per year for a household size of two people.

As an Intending Immigrant, When Do You Need to File a Form I-864 Affidavit of Support?

You need a Form I-864 Affidavit of Support contract as part of your application if:

  • You are the beneficiary of a family-based petition due to a family relationship with a US citizen petitioner, or a petitioner with lawful permanent resident status;
  • You are the beneficiary of an employment-based permanent residence petition filed by a petitioner who is a US citizen, US national or US lawful permanent resident; or

You are the beneficiary of an employment-based permanent residence petition filed by a petitioner that is a business entity (such as a corporation) and is at least five percent owned by a US citizen, national or lawful permanent resident, and who is a qualifying relative of yours.

If you seek to come to the US with another intending immigrant (your child, for example), a Form I-864 Affidavit of Support contract must be filed for each person who will become a beneficiary on the application. Moreover, the poverty guidelines must be met for your household size — and the minimum income increases as your household size increases.

Supporting Documents

Following is a list of documents that need to file with a Form I-864 Affidavit of Support:

  • A transcript of your financial sponsor’s federal income tax records;
  • A copy of your sponsor’s tax return for the most recent tax year;
  • A copy of Form 1099, if one was filed on behalf of your sponsor;
  • Proof of the value of your sponsor’s assets vs. liabilities, if necessary to meet sponsorship obligations;
  • Proof that your sponsors are US citizens or permanent residents;
  • Form I-864A (in some cases); and
  • Proof of the relationship between you and your sponsor, if applicable (a marriage certificate or birth certificates, for example).

The USCIS may request additional documentation as well.

Sponsor Qualifications

The person who sponsors your petition is required to file Form I-864 Affidavit of Support as a sponsor, regardless of their household income or how they are using the income. Not just anyone can be a successful I-864 sponsor — the sponsor’s income and assets, plus that of any other sponsors, must be sufficient to convince US immigration authorities that your I-864 sponsor is capable of supporting you, themselves, and any dependents in the sponsor’s household.

In addition to assets requirement, your I-864 sponsor must meet the following qualifications:

  • They must be U.S. citizens, nationals, or lawful permanent residents;
  • They must be at least 18 years old; and
  • They must currently be domiciled in the United States, including a U.S. territory or possession (Puerto Rico, for example). Domicile is a legal concept, and it is not always the same as residency.

Joint sponsors

There are two possible types of I-864 sponsors — the primary sponsor, and one or more joint sponsors. If your primary sponsor’s income and assets are insufficient to render their pledge of support credible, up to two joint sponsors may be used to make up the difference.

Joint sponsors are required to file separate Forms I-864, and they are subject to the qualifications stated above (US domicile, etc.) as primary sponsors.

Your Income

As a beneficiary, you can use your own income to prove that you will not become a public charge while you are in the United States. It is important to remember, however, that you will be required to prove that this income will continue after you arrive in the United States. Your anticipated income from employment in the US (for beneficiaries of employment-based immigrant visas) cannot be counted.

Sponsorship Liabilities and Obligations

Signing a Form I-864 Affidavit of Support has two effects on your sponsor:

  • It obligates your I-864 sponsor under contract law to provide you with support should it become necessary. Form I-865 could be used to support a lawsuit in court.
  • It subjects them to potential criminal liability if they make any intentional misstatements of material fact (because a signed Form I-864 Affidavit of Support functions as a sworn affidavit in addition to a contract). In other words, your sponsor could end up defending themselves in criminal court.

Signing Form I-864 is a serious decision for anyone considering pledging financial support for the beneficiary of an immigrant visa. It should not be taken lightly.

Beneficiary Eligibility for Means-Tested Public Benefits

Form I-864, because it promises you to support, is considered one of your resources, and as such, it can be used to deny you access to means-tested public benefits such as:

  • Supplemental Security Income (SSI);
  • Temporary Assistance for Needy Families (TANF);
  • State and local cash benefits;
  • Federal or state government benefits supporting long-term care in a nursing home or mental institution;
  • Supplemental Nutrition Assistance Program (SNAP) benefits, formerly known as “food stamps”;
  • Section 8 Housing Assistance;
  • Section 8 Project-Based Rental Assistance;
  • Public housing; and
  • Federally funded Medicaid (certain exclusions apply).

This list is not necessarily exhaustive.

Litigation and Going to Court

Your sponsor can be hauled into court for two different types of lawsuits arising from a Form I-864 Affidavit of Support:

An I-864 Affidavit of Support lawsuit that you file against your sponsor for failure to provide you with sufficient financial support. If your sponsor fails to meet their Form I-864 Affidavit of Support sponsorship obligations, you can sue for an amount sufficient to bring your income to 125 percent of the federal poverty line.

An I-864 Affidavit of Support lawsuit by the US government for the full value of any means-tested public benefits that you receive.

If you rely on means-tested public benefits for survival, you might find yourself in immigration court fighting deportation.

Public Benefits that will not subject your sponsor to liability

The foregoing discussion on lawsuits in court and civil liability applies only to “means-tested” government benefits — that is, government benefits for which eligibility is determined by low income. Receipt of the following government benefits is not considered means-tested government benefits. They will not subject your sponsor to liability under the I-864 Affidavit of Support, and receipt of such benefits will not be used against an immigrant:

  • State and federal emergency medical assistance;
  • Disaster relief;
  • Subsidies for foster care and adoption;
  • Government-subsidized student loans;
  • Government-subsidized mortgage loans;
  • National school lunch programs;
  • The Special Supplemental Nutrition Program for Women, Infants, and Children;
  • The Children’s Health Insurance Program;
  • Energy assistance;
  • Food pantries;
  • Homeless shelters;
  • Head Start; and
  • Benefits received by members of the US military.

The foregoing benefits are excluded from the definition of “means-tested public benefits” regardless of whether they are state or federal. Some of the foregoing benefits were excluded for humanitarian reasons — the Children’s Health Insurance Program is excluded, for example, because the United States does not wish to discourage anyone whether citizen, sponsored immigrant, or undocumented immigrant, from allowing their children to access health care.

Duration of the Sponsorship Obligation

Your sponsor’s obligation to support you under the I-864 Affidavit of Support continues until one of the following four events, whichever first occurs:

  • You become a US citizen.
  • You accumulate at least 40 work quarters of work toward Social Security. 40 quarters of work is approximately 10 years of employment, and 40 quarters of
  • work is enough to qualify you for Social Security benefits.
  • You die.
  • You permanently depart the US.

A divorce doesn’t change any of this. If your spouse sponsored you, for example, the sponsorship obligation continues even after a divorce. Even a prenuptial agreement does not end the obligation of a spouse sponsor to provide financial support to their ex-spouse under Form I-864.

Enforcement of I-864 Affidavit of Support Sponsorship Obligations

A Form I-864 Affidavit of Support is designed to ensure that you do not become a “public charge” (a burden on US state or federal taxpayers) after you immigrate to the US. Until recently, Affidavit of Support sponsorship obligations was almost never enforced. Enforcement of the affidavit has increased dramatically over the past few years, however. It remains to be seen how strictly the Biden administration will enforce these obligations.

A Form I-864 Affidavit of Support sponsor is obligated to report any new address to the USCIS on Form I-865, within 30 days of relocating. Failing to file Form I-865 when required can subject your sponsor to a fine ranging from $250 to $5,000, none of which will be subtracted from the sponsor’s Form I-864 Affidavit of Support obligation to you. The fine is likely to be the maximum of $5,000 if your sponsor relocates while knowing that you have obtained means-tested public benefits.

Recent Changes in the “Public Charge” Rule

Form I-864 is designed to ensure that you will not become a financial burden on US society after your immigration to the United States. Recent changes in immigration law initiated by the Trump administration have placed additional obstacles in front of intending immigrants seeking to prove that they will not become a public charge:

  • You (not your sponsor) must file Form I-944 concerning your own financial situation as it relates to the immigration, independent of your sponsor’s financial resources.
  • The reviewing officer will examine the financial situation of both you and your sponsor(s). Relevant factors include age, health, education, skills, financial resources, and family status. Your chances of being issued an immigrant visa could be negatively affected by an expensive medical problem, for example, or extensive family obligations.

The Biden administration’s attitude towards these new, Trump-imposed obstacles remains to be seen.

Frequently Asked Questions (FAQs)

Does a Form I-864 Affidavit of Support have to be notarized?

No, it doesn’t. Nevertheless, if your sponsor signs the affidavit, then they might be subject to criminal liability for any significant false statement that the affidavit contains, at least if they knew that the statement was false at the time they signed the affidavit.

What documentation does the sponsor need to prove their income?

In addition to Form I-864, a sponsor is required to submit an IRS-issued transcript form or photocopy of their most recent federal income tax return. The sponsor, in their discretion, may also submit copies of their federal income tax forms for the last three years. This might provide some context that could clarify the sponsor’s ability to meet their obligations. The officer might also ask for additional documentation, such as an employment offer letter.

If the sponsor owns a business, should they submit business income tax returns or individual income tax returns?

They should submit individual income tax returns since it is the individual, not the business, that will be sponsoring you.

Do following-to-join family members need separate I-864 Affidavits of Support?

Yes. If your family members (spouse or child) are authorized to come to the United States based on your immigration status, and if they choose to wait until after you have already arrived in the United States to enter the country themselves (known as “follow-to-join”), then each one will need:

  • A separate Form I-864 Affidavit of Support with the original signature of the sponsor; and
  • A complete set of I-864 of Support supporting documents.

What is the National Visa Center’s role in evaluating the I-864 Affidavit of Support?

If you are applying for an immigration visa at a US embassy or consulate abroad, it is the National Visa Center (NVC), rather than the USCIS, that will evaluate the Form I-864 Affidavit of the Support package for completeness.

If your immigrant visa application package is not complete, you will be asked to submit any missing items, and the processing of your immigrant visa is likely to be delayed. Once the NVC is satisfied that your application is complete, it will transfer your application package to the U.S. embassy or consulate where you are applying for an immigrant visa, for further processing.

How should I complete Form I-864?

Use the step-by-step instructions provided by the USCIS. Fill the form out using a computer, and type all answers in capital (upper case) letters. Submit all pages, even if some of them are blank. The same advice applies to Form I-864A.

What are the federal poverty guidelines?

The federal poverty guidelines are a standard that defines the official poverty level for the purpose of determining eligibility for immigrant visas and certain domestic federal programs. It is defined as a dollar amount that varies according to the number of household members. These guidelines are recalculated periodically.

If the federal poverty guidelines change between the time my sponsor signed the Form I-864 Affidavit of Support and the time that US immigration officials review my application, does my sponsor(s) have to file a new Form I-864 Affidavit of Support?

No, the Affidavit of Support I-864 remains valid despite a change in the poverty guidelines, as long as it was valid at the time it was filed. If a Form I-864 and supporting documents indicate that income and asset requirements were not met at the time it was filed, however, the reviewing officer can demand that your sponsor submit current year income information and evaluate your application based on modified poverty guidelines.

When determining my number of household members for the purpose of determining how much sponsorship I need to meet the immigration poverty guidelines, do US immigration officials count my children even if they live with my ex-spouse and my ex-spouse has sole custody of them?

Yes. Your children are counted as household members of both you and your ex-spouse’s households, assuming that both of you have a legal obligation to support them. The only way to get around this rule is to prove that you no longer have a legal obligation to support your children

Can I request that my children not be counted as my household member if they are claimed as dependents on my ex-spouse’s tax return, not mine?

No. Your children will be considered part of your household even if you provide them with no support at all, as long as you remain legally obligated to provide them with financial support.

If my sponsor dies after my immigration to the United States but before my other family members arrive, can another sponsor be used?

Yes. If the primary sponsor dies before all of your accompanying family members have arrived in the US, you can find another sponsor to submit a Form I-864 Affidavit of Support as the new primary sponsor.

Does my sponsor need to count assets if his income alone meets the poverty guidelines income requirement?

No, counting assets is usually not necessary as long as your sponsor’s income meets the poverty guidelines income requirement. Nevertheless, under certain circumstances, the examining officer may still demand evidence of assets and liabilities before issuing an immigrant visa.

What information needs to be included in an asset count?

The sponsor who owns the assets must prove the location, ownership, and value of each asset, including any liabilities attached to the asset such as a lien or a mortgage. The assets do not have to be located in the country of immigration. The sponsor must also present evidence of how long it would take to convert the asset to cash and made it available to you. These assets might not be counted if providing them to you would harm the sponsor or his household member.

How much do the assets have to be worth in cash?

With two very important exceptions, the cash value of the assets must equal 500 percent of the difference between the income standard (125 percent of the poverty guidelines) and the sponsor’s income. Any encumbrances against the asset, such as a mortgage, should be subtracted from the value of the asset.
If the sponsor’s income is $5,000 short, for example, then the cash value of his assets must be no less than $25,000 (500 percent of the difference), without taking into account the contribution of any joint sponsors. The cash value would need to equal only $15,000 (300 percent of the difference) if the sponsor is a US citizen sponsoring his spouse or adult child.

What types of property can be used as assets?

A sponsor must only include assets that can be converted into cash within a year without hardship to the sponsor or the sponsor’s family. Examples of convertible assets could include:

  • Stocks;
  • Bonds;
  • Personal property;
  • Real estate; and
  • Secondary vehicles (not the sponsor’s primary vehicle).

The key considerations here are liquidity, and whether reducing an asset to cash would be realistic or likely under the circumstances.

Can I count my own assets from my home country (or from a third country) towards the poverty guidelines standard?

Yes, as long as:

  • The assets can be converted to cash within a year of your immigration;
  • The assets can be removed from the country without violating local law; and
  • The net value of the assets equals or exceeds 500 percent of the difference between your sponsor’s income and 125 percent of the federal poverty guidelines.

To include these assets in the calculation, you must complete Form I-864A.

My sponsor’s employer provides my sponsor with free housing. Can my sponsor count this as part of their income?

Yes, your sponsor may count as income free housing or even a housing allowance that only partially covers housing expenses, even if it is not taxable. The sponsor must prove the nature and amount of this benefit using evidence such as Form W-2 or Form 1099.

Can a U.S. citizen or lawful permanent resident (LPR) petitioner serve as a primary or joint sponsor even if they are not domiciled in the US?

No, someone who is not domiciled in the US cannot serve as a sponsor or petitioner unless they intend to change their domicile to the US. It is possible, however, for someone to be domiciled in the US even if they are not currently residing in the US. If the primary sponsor lacks a US domicile, however, they cannot substitute a joint sponsor with a US domicile to make up for their own lack of US domicile — both sponsors must be domiciled in the US.

What, exactly, does “domicile” mean, anyway?

A person’s domicile is where they maintain their principal residence with no current plans to leave during the foreseeable future. A primary sponsor or a joint sponsor petitioner must be domiciled within the US, but this may include any state, the District of Columbia, or any possession of the US (such as Puerto Rico or Guam).

Can a sponsor still qualify under the domicile requirement even if they are not now residing in the US?

Yes, under certain circumstances. Even if your sponsor is not now living in the US, they may still qualify if:

  • They are located abroad because they are employed by certain organizations.
  • They are living abroad temporarily and can present evidence that they have maintained their US residence and intend to return.
  • The sponsor genuinely intends to establish a US domicile no later than the date of your immigration to the US. A common example would be the US citizen spouse of an intending immigrant, who maintains an overseas domicile with their spouse but intends to move to the US permanently as soon as their spouse is issued an immigration visa.

How can a sponsor establish a US domicile?

A sponsor may establish a domicile in the US by:

  • Opening a local bank account;
  • Transferring money to the United States;
  • Investing money into the United States
  • Seeking or accepting employment in the United States;
  • Establishing a residence in the United States;
  • Registering their minor children in U.S. schools;
  • Applying for a Social Security number; and/or
  • Voting in local, state, or federal elections (if a citizen).

Whether a person has successfully established a domicile in the United States is essentially a judgment call that requires various factors to be weighed before a conclusion can be reached. No one factor is dispositive.

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