Affidavit of Support (Form I-864) Overview

As discussed in our previous article on public charge, the purpose of the Affidavit of Support (Form I-864) is to show that an intending immigrant has enough financial support and that he or she is not likely to become primarily dependent on the government for support. It is to avoid being denied a visa, green card, or admission into the United States by the reason of public charge. Generally speaking, in practice, a Form I-864 is required to be submitted with most family-based applications and some employment-based applications.

Form I-134, Declaration of Financial Support, is a form that is very similar to Form I-864, Affidavit of Support, in terms of the name and purpose of the forms. Form I-134 may be used in situations where some immigrant benefits involve a temporary stay in the United States and the applicant is required to show sufficient financial support to pay for the temporary stay in the United States. For example, a fiancé(e) of a U.S. citizen who is going to travel to the United States on a K-1 fiancé(e) visa may need to submit a Form I-134 to show that he or she has the financial resource for the duration of the K-1 stay. This article will focus on Form I-864, which is mainly used for family-based immigrant applications and also for some employment-based applications.

What is an Affidavit of Support (Form I-864) and who needs to submit one?

An Affidavit of Support (Form I-864) is a way to show adequate means of financial support and avoid being denied a visa, green card, or admission into the United States by reason of public charge. As mentioned above, a Form I-864 is required for most family-based immigration applications and some employment-based immigration applications.

Generally speaking, when immediate relatives of U.S. citizens and other family-based preference immigrants seek to obtain an immigrant visa overseas or adjust status to obtain a green card in the United States, they are required to submit a Form I-864 that is completed by the U.S. citizen or lawful permanent resident (“LPR”) petitioner.

For employment-based immigration applications, a Form I-864 is generally required when the petitioning entity is significantly owned (five percent or more ownership interest) by a U.S. citizen, LPR, or national, who is a relative of the intending immigrant.

When is an Affidavit of Support (Form I-864) not required?

Generally speaking, an intending immigrant does not need to submit a Form I-864 if:

• He or she has earned or can receive credit for 40 qualifying quarters (credits) of work in the United States. Work performed by the intending immigrant, his or her spouse during their marriage, and his or her parents while he or she was under 18 years of age may be counted towards the 40 credits;

• He or she will, after admission into the United States, acquire U.S. citizenship under the Child Citizenship Act of 2000 (CCA) (amended INA 320);

• He or she is a self-petitioning widow(er) who has an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant; or

• He or she is a self-petitioning spouse or child who has an approved Form I-360.

In the event that an intending immigrant is not required to submit a Form I-864, a Form I-864W, Intending Immigrant’s Affidavit of Support Exemption, will be used instead. If you have specific questions related to your individual circumstances, such as whether you are required to submit a Form I-864, we recommend you to consult with an experienced immigration attorney.

What are the sponsor’s obligations under an Affidavit of Support (Form I-864)?

A Form I-864 is a contract between the signing sponsor and the U.S. Government. The sponsor needs to show that he or she has enough income and/or assets to maintain his or her household and the sponsored immigrant at 125% of the Federal Poverty Guidelines. The Federal Poverty Guidelines for I-864 are updated annually and are available on the USCIS website under I-864P, HHS Poverty Guidelines for Affidavit of Support. Generally speaking, by completing a Form I-864, the sponsor agrees to:

• Provide support to the sponsored immigrant to maintain him or her at an income that is at least 125% of the Federal Poverty Guidelines when necessary;

• Notify USCIS of your change of address, within 30 days of the change, by filing a Form I-865;

• Allow the U.S. Government to consider your income and assets as available to the sponsored immigrant in determining whether the sponsored immigrant is eligible for certain federal, state, or local mean-tested public benefits; and

• Be liable for reimbursing the U.S. government for means-tested public benefits the sponsored immigrant received during the period of obligation.

When will the sponsor’s obligations under an Affidavit of Support (Form I-864) end?

Broadly speaking, the sponsor’s obligations under a Form I-864 end when:

• The sponsored immigrant becomes a U.S. citizen;

• The sponsored immigrant has worked or can be credited with 40 qualifying quarters of work in the United States;

• The sponsored immigrant ceases to be a lawful permanent resident and departed the United States permanently;

• The sponsor or the sponsored immigrant dies; or

• In situations when a new Affidavit of Support is signed with a new and approved adjustment of status application.

As a general rule, divorce does not end the sponsor’s obligations under an I-864. If you have specific questions related to your individual circumstances and/or your obligations as a sponsor under a Form I-864, we recommend you to consult with an experienced immigration attorney.

What happens if the petitioner doesn't have enough income to sponsor the intending immigrant?

In the cases when the petitioner’s income is not enough to sponsor the intending immigrant, the petitioner may use the following:

• The petitioner’s assets;

• Income and/or assets of a household member;

• Income from the intending immigrant (non-spouse), if that income will continue from the same source after becoming a lawful permanent resident and the intending immigrant is currently living in your residence;

• Income from the intending immigrant (spouse), if that income will continue from the same source after becoming a lawful permanent resident;

• Assets of the intending immigrant; and/or

• Income and/or assets of a joint sponsor whose income and/or assets is at least 125% of the Federal Poverty Guidelines.

A family member who agrees to make his or her income and/or assets available to the petitioning sponsor to help support the intending immigrant(s) will complete a Form I-864A, Contract Between Sponsor and Household Member. A joint sponsor who agrees to be jointly responsible with the petitioning sponsor to help support the intending immigrant will complete a Form I-864. A joint sponsor does not have to be related to the intending immigrant.

In most cases, the petitioner needs to submit a Form I-864 even when a joint sponsor is used. And the petitioning sponsor has the obligations to support the intending immigrant along with the joint sponsor.

What supporting documents do I need to submit?

Generally speaking, a sponsor needs to submit a copy of his or her most recent Federal income tax return, together with all Schedules, W-2s and 1099s, or evidence that he or she was not required to file. Other documentations may include documentations of assets (when using assets to qualify), proof of U.S. citizenship, LPR status, or U.S. national status (for joint sponsor, substitute sponsor, relative of an employment-based immigrant).

If I do not want to be a sponsor anymore, can I withdraw my affidavit of support?

In general, a sponsor may withdraw his or her affidavit of support before the intending immigrant’s application is approved. For an adjustment of status application (Form I-485), a sponsor may inform the USCIS in writing before the final decision on the application is made. For an immigrant visa case, once an immigrant visa is issued, withdrawal is allowed only when the visa petitioner also withdraws the visa petition.

Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.

This article is also available in Traditional Chinese and Simplified Chinese.

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