Affidavit of Support in Green Card Application
Updated on 09/25/2022
One issue that can affect an immigrant’s application for U.S. immigration benefits is the immigrant’s financial condition. While U.S. immigration benefits are not just limited to wealthy persons, U.S. immigration policy does not favor immigrants who are likely to have financial problems after coming to the U.S.
For immigrants whose financial condition would otherwise deny them from certain U.S. immigration benefits, an Affidavit of Support can be a critical document.
This article discusses the Affidavit of Support.
Purpose of an Affidavit of Support in Green Card Application
One of the most valuable U.S. immigration benefits is a green card. With a green card, an immigrant can obtain the right to permanently live and work in the U.S.
However, under Section 212(a)(4) of the U.S. Immigration and Nationality Act (“INA”), an immigrant can be inadmissible to obtain a green card if the immigrant is likely at any time to become a “public charge” in the U.S. A “public charge” is generally someone who is primarily dependent on the government for subsistence.
Section 212(a)(4) of the INA indicates that an “affidavit of support” can be considered in determining whether an immigrant is a public charge. Section 213A of the INA describes the general requirements for an affidavit of support.
The concept of an affidavit of support is that some person, known as a “sponsor”, agrees to be financially responsible for the immigrant after the immigrant obtains a green card. The affidavit of support creates a contract between the sponsor and the U.S. government. The sponsor agrees to use the sponsor’s financial resources to financially support the immigrant, if necessary. Based on the affidavit of support, the immigrant seeks to avoid being viewed as likely to become a public charge in the U.S. If the immigrant become a public charge, the U.S. government is entitled to sue the sponsor for breach of contract and ask for compensation. Thus, the purpose of an affidavit of support is to prevent financial issues from preventing approval of an immigrant’s green card application.
The Biden administration has liberalized the “public charge” requirement from what was required under the Trump administration (which had toughened this requirement relative to prior law), but there remain “public charge” and “affidavit of support” requirements under current law.
The U.S. immigration system generally has formalized the requirement of an affidavit of support by U.S.Citizenship and Immigration Services (“USCIS”) Form I-864, “Affidavit of Support Under Section 213A of the INA” (“Form I-864”).
There are two different pathways to obtain a green card. If the immigrant is outside of the U.S., the immigrant can use consular processing at a U.S. Department of State consulate abroad to obtain a green card. If the immigrant is already in the U.S., the immigrant can use adjustment of status through USCIS to obtain a green card. Whether the immigrant is going through consular processing or adjustment of status, an Affidavit of Support under Form I-864 generally needs to be filed.
Difference between Affidavit of Support for Immigrant Visa and Non-Immigrant Visa
Green cards are associated with immigrant visas to permanently come to the U.S. When the right that is sought to come to the U.S. is temporary, rather than permanent, the applicable visa is a non-immigrant visa, and not an immigrant visa.
When a non-immigrant visa is involved, you do not file Form I-864. The document to file in the case of non-immigrant visas is USCIS Form I-134, “Declaration of Financial Support”.
Form I-134 is filed to determine whether someone has sufficient financial resources or financial support to pay for expenses during a temporary stay in the U.S. Form I-134 is not mandatory for most non-immigrant visa applications. Only K-1 fiancé(e) visa applicants are required to bring a Form I-134 and its supporting documents to their K-1 visa interview.
Who Needs to Submit an Affidavit of Support in Green Card Application?
Form I-864 Affidavit of Support must be filed by sponsors for each of the following green card applicants:
- All persons who apply for “immediate relative” green cards. These include (i) spouses of U.S. citizens, (ii) unmarried children (under 21 years of age)of U.S. citizens, and (iii) parents of U.S. citizens (21 years of age or older);
- All persons who apply for “family preference” green cards. These include (i) unmarried sons or daughters (21 years of age or older) of U.S. citizens, (ii) spouses of U.S. green card holders, (iii) unmarried children (under 21 years of age) of U.S. green card holders, (iv) unmarried sons or daughters (21 years of age or older) of U.S. green card holders, (v) married sons or daughters of U.S. citizens, and (vi)brothers and sisters of U.S. citizens (21 years of age or older); and
- Certain persons who apply for “employment-based” green cards if a U.S. citizen, U.S. green card holder, or U.S. national relative of the immigrant applicant filed the green card petition for the immigrant or such relative has a 5% or more ownership interest in the entity that filed the green card petition for the immigrant.
The following immigrants are exempt from the requirement of a sponsor filing Form I-864:
- Any immigrant who has earned credit for 40 qualifying quarters (credits) of work in the U.S. In addition to their own work, immigrants may be able to secure credit for work performed by a spouse during marriage and by parents while the immigrant was under 18 years of age;
- Any immigrant who will, upon admission, acquire U.S. citizenship under section 320 of the INA, as amended by the Child Citizenship Act of 2000;
- Self-petitioning widows or widowers who have an approved USCIS Form I-360, “Petition for Amerasian, Widow(er), or Special Immigrant” (“Form I-360”); and
- Self-petitioning battered spouses and children who have an approved Form I-360.
If an immigrant is exempt from filing Form I-864, the immigrant needs to submit USCIS Form I-864W, “Request for Exemption for Intending Immigrant’s Affidavit of Support” (“Form I-864W”).
Who Qualifies as Sponsor for an Affidavit of Support?
The sponsor is a critical person for purposes of Form I-864. To be a sponsor on Form I-864, you must:
- Be at least 18 years of age;
- Be domiciled in the U.S. or its territories or possessions; and
- Demonstrate that your income is at least 125% of the current “Federal Poverty Guidelines” for your household size (100% of the current “Federal Poverty Guidelines” for your household size if you are petitioning for your spouse or child and you are on active duty in the U.S. Armed Forces, including the Army, Marines, Navy, Air Force, or Coast Guard). These Federal Poverty Guidelines are described on USCIS Form I-864P, “2022 HHS Poverty Guidelines for Affidavit of Support”.
If you are the U.S. citizen, U.S. green card holder, or U.S. national who files the green card application (whether as an “immediate relative” green card application, “family preference” green card application, or “employment-based” green card application) that requires the filing of Form I-864, you are required to be a sponsor for purposes of Form I-864. If you as sponsor cannot meet the above-described income requirement, it can also be met using any combination (except as described below) of the following:
- Income from any relatives or dependents living in your household or dependents listed on your most recent Federal income tax return who signed USCIS Form I-864A, “Contract Between Sponsor and Household Member” (“Form I-864A”) (described below);
- Income from the immigrant who has authorized employment applying for the green card, if such income will continue from the same source after immigration and if such immigrant is currently living in your residence. If such immigrant is your spouse, such income can be counted regardless of current residence, but it must continue from the same source after such spouse receives a green card;
- The value of your assets, the assets of any household member who has signed Form I-864A, or the assets of the immigrant applying for the green card. Such assets may be used to supplement income if the immigration officer reviewing the case is convinced that the monetary value of the assets could reasonably be made available to support the sponsored immigrant and converted to cash within one year without undue harm to the sponsor or his or her family members; or
- A “joint sponsor” whose income and/or assets equal at least 125% of the current applicable Federal Poverty Guidelines. A joint sponsor can be any U.S. citizen, U.S. green card holder, or U.S. national who is at least 18 years old, domiciled in the U.S. or its territories or possessions, and willing to be jointly liable with the sponsor originally required to sign the Form I-864 for the support of the immigrant applying for the green card. The joint sponsor does not need to be related to the sponsor originally required to signthe Form I-864 or the immigrant applying for the green card. A joint sponsor must be able to meet the Form I-864 income requirement for all persons the joint sponsor is sponsoring independently of the resources of the sponsor originally required to sign the Form I-864.
You can learn how to calculate your income and/or assets in our article “Income or Asset Requirements for I-864 Affidavit of Support“.
Form I-864 Affidavit of Support
Form I-864 is signed by the sponsor. No matter whether sponsor’s income or assets meet the applicable Federal Poverty Guidelines, the sponsor must sign and file the Form I-864. If there is a joint sponsor, then the joint sponsor should sign a separate Form I-864.
Form I-864EZ (only seven pages) is a shorter version of Form I-864. It generally may be used if you are the person who filed Form I-130 for the immigrant being sponsored, the immigrant being sponsored is the only person listed on Form I-130, and the income you are using to qualify for the Form I-864 income requirement is based entirely on your salary or pension and is shown on one or more Internal Revenue Service Form W-2s.
Documents to Submit with Form I-864
You must provide proof that you are a U.S. citizen, U.S. green card holder, or U.S. national.
You must provide either an Internal Revenue Service transcript or a photocopy of your Federal individual income tax return for the most recent tax year. If you believe additional returns may help you to establish your ability to maintain sufficient income, you may submit transcripts or photocopies of your Federal individual income tax returns for the three most recent years. You must include copies of each Internal Revenue Service Form W-2 and Form 1099 that relates to your returns.
You may include evidence supporting your claim about your expected income for the current year if you believe that submitting this evidence will help you establish ability to maintain sufficient income. For example, you can include an employment verification letter to prove your annual salary. You may also provide most recent two pay stubs evidencing your income. If your income includes alimony, child support, dividends, interest, or income from any other source, you can also include evidence of such income.
If your income is not sufficient to meet the sponsorship requirement, you can list assets in the Form I-864 and provide supporting evidence of assets. If you wish to include the net value of your home, you must include documents demonstrating that you own it, a recent property tax bill or a appraisal by a licensed appraiser, and evidence of the amount of all loans on the home. If you wish to include cash in your checking or saving accounts, you must provide at least 12 months bank statements. Only average account balance in the last 12 months can be accounted. The assets must be easily converted into cash within one year and without considerable hardship or financial loss to the owner. Assets in the countries with foreign exchange control (for example, China Mainland) generally cannot be included.
As described above, Form I-864A is necessary when income or assets of certain household members or dependents of the sponsor is used to supplement the sponsor’s income because the income or assets of the sponsor is otherwise inadequate to meet the Form I-864 income requirement for a green card application. The household member must have authorized employment in the U.S.
Form I-864A is signed by both the sponsor and the applicable household member or dependent.
By signing Form I-864A, the applicable household member or dependent is making an agreement with the sponsor to be jointly responsible for the financial support of the immigrant applying for the green card.
At DYgreencard.com, we can help you prepare a complete Affidavit of Support package with all forms and supporting documents. A skilled immigration lawyer will review it thoroughly. Learn more or start today!
Filing and Processing of Affidavit of Support
If Form I-864 is being filed in connection with a green card application under consular processing, it should be filed after an immigrant petition has been approved by USCIS and the petition has been forwarded to U.S. Department of State’s National Visa Center (“NVC”). It can be filed online through the Consular Electronic Application Center of NVC. Generally, it will take 1-3 months for NVC to process it. If any documents missing or NVC thinks the sponsorship requirement has not been met, NVC will allow the sponsor to provide more evidence.
If Form I-864 is being filed in connection with a green card application under adjustment of status, it must be filed together with Form I-485 to USCIS. Generally, it will take 1- 3 months for USCIS to process Form I-864. If any documents missing or USCIS thinks the sponsorship requirement has not been met, USCIS will issue a Request for Evidence which allow the sponsor to provide more evidence.
There is no USCIS filing fee required for Form I-864 (or for Form I-864A or Form I-864EZ). However, when filed in connection with a green card application under consular processing, NVC will charge an Affidavit of Support fee of $120.
When Does Sponsorship Under an Affidavit of Support Begin and End?
Sponsorship under the Affidavit of Support, and the financial obligation required by it, begins when the immigrant receives a green card and ends on the occurrence of any of the following:
- The sponsored immigrant becomes a U.S. citizen;
- The sponsored immigrant has earned credit for 40 qualifying quarters (credits) of work in the U.S. It is sometimes mistakenly thought that Affidavit of Support obligations end after 10 years; however, this point is only true if the sponsored immigrant works for those 10 years (40 qualifying quarters);
- The sponsored immigrant no longer has status as a U.S. green card holder and having departed the U.S.;
- The sponsored immigrant, after being deported, regains a green card based on a different Form I-864; or
- The sponsored immigrant died.
It is important that both a prospective immigrant and a prospective sponsor understand the important implications of the Affidavit of Support document.
The prospective immigrant should understand that the Affidavit of Support is a critical part of the green card application process. Unless an exception to be evidenced on Form I-864W applies, the prospective immigrant will not be able to receive a green card if the Affidavit of Support requirement is not met.
The prospective sponsor should understand that the Affidavit of Support imposes a financial obligation (potentially a joint obligation with others). While the prospective sponsor wants to help the immigrant, the prospective sponsor will need to decide if this assistance also should extend financially.
Thus, the Affidavit of Support can be a significant document both as part of the green card application and then as a contract for a long period of time after the green card is issued.
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