AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS
THE Immigration and Nationality Act now provides that an alien is inadmissible as an “alien likely to become a public charge” if the alien is seeking an immigrant visa, admission as an immigrant, or adjustment of status as: (a) An immediate relative, (b) a family-based immigrant, or (c) an employment-based immigrant of a relative if the alien is the petitioning employer or owns a significant ownership interest in the entity that is the petitioning employer. To overcome this ground of inadmissibility, the alien must be the beneficiary of an affidavit of support filed under the new section 213A of the Immigration and Nationality Act (“the Act”). Section 213A of the Act specifies the conditions that must be met in order for an affidavit of support to be sufficient to overcome the public charge inadmissibility ground.
Form I-864, Affidavit of Support under Section 213A of the Act, is a legally enforceable contract between the sponsor and the Federal Government. This contract is for the benefit of the sponsored immigrant and any Federal, State, or local government agency or private entity that provides the sponsored immigrant with any means-tested public benefit. The sponsor must sign the Form I-864. By executing Form I-864, the sponsor agrees to provide the financial support necessary to maintain the sponsored immigrant at an income that is at least 125% of the Federal poverty line (100% for sponsors who are on active duty in the U.S. Armed Forces), unless the obligation has terminated. The sponsor also agrees to reimburse any agencies that provide means-tested public benefits to a sponsored immigrant. The sponsor must, under civil penalty, notify the Service and the State(s) in which the sponsored immigrant(s) reside of any change in the sponsor’s address.
Form I-864 must be executed on behalf of any accompanying or following-to-join spouse or child under section 213A of the Act, if they are filing an application for immigrant visas or adjustment of status after December 19, 1997, in a classification for which an affidavit of support is required.
Termination of Affidavit of Support Obligation
Once the intending immigrant receives his or her immigrant visa (“green card”), the sponsor cannot terminate his or her obligation. The termination of the obligation will occur by operation of law when:
a. The sponsored immigrant becomes a United States citizen, or
b. The sponsored immigrant has worked, or can be credited with, 40 qualifying quarters under the Social Security Act. Any working quarters during which the sponsored immigrant receives Federal means-tested public benefits cannot qualify, or
c. The sponsored immigrant abandons or is divested of his or her permanent residency, or
d. The sponsored immigrant dies, or
e. The sponsor dies
Sponsorship Requirements
Section 213A of the Act sets forth the requirements to be a sponsor. The individual executing the form I-864 must be a citizen or national of the United States or a lawful permanent resident of the United States, be at least 18 years of age, be domiciled in the United States or any of its territories or possessions, and demonstrate the means to maintain an income of at least 125% of the Federal poverty guideline (100% of the poverty guideline for sponsors on active duty in the Armed Forces of the United States).
Because the sponsor has an obligation to support the sponsored immigrant(s) at or above 125% of the poverty line, for purposes of the Form I-864, the sponsor’s household size is increased by the number of immigrants sponsored in the affidavit of support. This applies to all affidavits of support under section 213A of the Act, regardless of whether the sponsored immigrant(s) will be living in the same residence as the sponsor.
In order to meet the income threshold, the sponsor may rely on his or her own income and the income of any other individuals who are related to the sponsor by birth, marriage, or adoption. In order to rely on the income of these other persons, however, the sponsor must include with the affidavit of support a written contract on Form I-864A, Contract Between Sponsor and Household Member. This written contract will provide that each person whose income the sponsor will rely on has agreed, in consideration of the sponsor’s signing of the Form I-864, to assist the sponsor in supporting the sponsored immigrant(s), to be held jointly and severally liable for payment of any reimbursement obligation that the sponsor may incur, and to submit to the personal jurisdiction of any competent court.
If the petitioner is unable to demonstrate the means to maintain income equal to at least 125% of the poverty line, the intending immigrant is inadmissible unless the petitioner and/or the sponsored immigrant(s) demonstrate significant assets that are available for the support of the sponsored immigrant(s) or a joint sponsor also executes a Form I-864. In order to be a joint sponsor, the individual must execute a separate Form I-864, must accept joint legal responsibility with the petitioning sponsor, and have an income and/or assets (based on his or her household size, including dependents and the number of persons previously and currently sponsored on Form I-864) that meets or exceeds 125% of the Federal poverty line.