U.S. Citizenship and Immigration
Your Complete Guide


~ Updates and Errata ~


January 1998

New Affidavit of Support Rule To Take Effect
   The big news in December was the implementation of the new Affidavit of Support, USCIS form I-864. The new affidavit applies to applications filed after December 19, 1997 by family-based immigration applicants. The new affidavit is also required in employment-based cases where a relative of the green card applicant is the sponsoring employer or has a significant interest in the sponsoring company.

   The new affidavit is a contract between the government, the sponsor and the green card applicant. It makes the sponsor liable for certain public benefits received by the applicant, and the applicant has the right to sue the sponsor for support.

   The questions and answers provided below were prepared by the U.S. Department of State to advise consular officers. You should find them helpful. I've edited the questions to clarify the most important points. For more on affidavits of support, see Chapter 5 of Prof. Wernick's book. U.S. Immigration and Citizenship-Your Complete.

New Affidavit of Support Rule To Take Effect

Is a Sufficient I-864 the Only Consideration?

Q.Given the contractual nature of the I-864, affidavit of support, and the prohibition of most Federal means-tested public benefits to most aliens for at least the first five years after their arrival in the U.S., will consular officers need to look beyond a sufficient affidavit of support for other public charge issues?

A.Yes. Section the new law lists the factors a consular officer should take into consideration when making public charge determinations. A new law affidavit of support, I-864, is only one of the factors to be considered. In addition, although the Welfare Act does severely limit aliens access to most Federal means tested public benefits during the alien's first five years in the United States, individual states are able to identify which of their programs will be considered means-tested for the purposes of the Act. Thus, there may still be significant State and/or local benefits available to recently arrived immigrants. The contractual nature of the I-864 notwithstanding, officers will continue to consider the totality of the sponsor's and applicant's financial situation to confirm to the extent possible that the applicant will have adequate financial support and is not likely to become a public charge.

Who Needs an I-864 and Who Doesn't

Q. Can an applicant who needs an affidavit of support but is applying for an nonimmigrant visa or an immigrant visa in other than one of the categories specified in the law use the I-864?

A. No. USCIS has determined that the law limits use of the I-864 to the specified cases. All other cases that might require an affidavit of support should use the I-134.

Q. Do persons who are in immigrant categories not requiring the affidavit of support (I-864) need to conform with the income and documentary requirements of the new law if they are requested to present an affidavit of support (I-134)?

A. No. Those applicants whose visa categories do not require the I-864 will continue to be adjudicated under previously existing public charge guidelines.

Q. Should Diversity Visa (lottery) applicants use the I-864 or the I-134?

A. They 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 is needed.

Q. Do the new income requirements apply to all immigrant visa applicants even if they use the I-134?

A. No. The 125 percent minimum income requirement, the need for the last three years income tax returns, etc. only apply to those cases in which an I-864 is required. All other cases should be adjudicated on the basis of previously existing guidance and procedures.

Household Size

Q. How do officers establish household size for the purposes of section the new law?

A. Household size is defined in the regulation as:

Q. How do you count children of a divorced couple who reside with one parent part of the time and with the other parent the other part?

A. 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. Even though 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 parent's household 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.

Complete Supporting Documents for Each Applicant

Q. Does each accompanying family member need a separately signed I-864 (or more if there are joint sponsors) and all supporting documents to be included in the visa packet if they are traveling with the principal applicant?

A. Yes. USCIS requires that each visa applicant's visa packet include a notarized I-864 from the petitioner, any joint I-864 that may be required, notarized I-864As if required, and all accompanying supporting documentation (three most recent years tax returns, employment letter, proof of assets and liabilities, if assets are used to meet the 125 percent requirement).

Requirement for Tax Returns is Not Debatable

Q. Will the State Department ever excuse the lack of filing of tax returns for the previous three years, other than when the sponsor was not obligated to file during a given year?

A. No. 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 Americans and legal permanent residents who are working abroad must file a return even if most or all of their overseas income is excluded from tax.

Joint Sponsors

Q. Why would there be more than one joint sponsor?

A. If the petitioner (or sponsor in the case of employment-based cases where a relative might either be the sponsor or have an ownership interest in the petitioning entity) meets the 125 percent minimum income requirement a joint sponsor would generally not be authorized unless a consular or USCIS officer requests it. (For example: the petitioner/sponsor meets the 125 percent requirement but does not appear to have the resources to meet medical expenses that are indicated by the medical report at the time of interview. In such cases, credible affidavits from one or more joint sponsors might overcome the ineligibility.) If the petitioner/sponsor does not meet the 125 percent requirement, joint sponsors may submit additional affidavits of support to help overcome the ineligibility. The law does not limit the number of joint sponsors.

Q. Can there be separate joint sponsors for separate members of the beneficiary's family?

A. No. Each joint sponsor must meet the minimum 125 percent income requirement for the indicated household size which includes: the affidavit; 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 affiant's most recent income tax return; any individual(s) for whom the affiant has filed a separate I-864 which is still in effect; the principal applicant; and the applicant's accompanying dependents.

How to Count Assets

Q. If the petitioner/sponsor must count assets to meet the 125 percent minimum income requirement, is it considered a sufficient affidavit of support?

A. Yes. The petitioner would count his/her own income first. If not sufficient he/she may count 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 count assets, they 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 dollars (20,062 poverty level for a family of four minus 18,000, times five). He/she would also need to present evidence of all mortgages, liens, and liabilities against the claimed assets.

Assets Outside the United States

Q. Will the intending immigrant be able to count significant assets that he or she owns that are currently outside the United States, such as real estate or personal property?

A. Yes. But only under the following conditions:

Can Free Housing be Counted as Income?

Q. Can petitioners/sponsors who receive housing and other tangible benefits in lieu of salary count those benefits as income?

A. Yes. The sponsor may rely on income that is not subject to taxation (such as a housing allowance for clergy or military personnel), as well as taxable income. In a given case, however, the sponsor would bear the burden of proving the nature and the amount of any income on which he or she relies, but that is not included as wages/salary or other taxable income. Evidence of such income can be shown through notations on Form W-2 (such as Box 13, for military allowances), Form 1099, or other documents that substantiate the claimed income.

Offers of Employment

Q. Can a credible offer of employment for the visa applicant replace or supplement an insufficient affidavit of support?

A. No. The new law does not make any prevision for the consideration of offers of employment in lieu of the I-864. Similarly, an offer of employment may not be counted in reaching the 125 percent minimum income. While it cannot replace or supplement an insufficient I-864, an employment officer would be useful in certain cases with sufficient I-864s, however. For example, if the petitioner/sponsor's income barely meets the 125 percent requirement, but the sponsor does not appear to have the means to offer full support to the applicant, the applicant's ability to support him or herself and accompanying dependents would be a positive factor and would generally allow for issuance of the visa. Conversely, an applicant with the same sponsor, but who does not appear able to support him or herself, would not quality for a visa under 212(a)(4) absent a verifiable affidavit of support from one or more credible joint sponsors.

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