U.S. Citizenship and Immigration
Your Complete Guide


~ Updates and Errata ~


July 1998

I'm updated the section of Chapter 5 that explains the new rules for proving that you won't become a public charge. Here's the first draft.

Likelihood of Becoming a Public Charge
To get a permanent resident visa, you must satisfy the U.S. government that live in the United States without needing public assistance. In the words of the immigration law, you won't become a public charge. Needing Food Stamps, Medicaid, and other "means-tested" benefits for poor or disabled people would make you a public charge. If you are applying for permanent residence based on your status as an Asylee, refugee, Cuban Adjustment Act beneficiary or NACARA beneficiary, the government won't require you to prove you won't become a public charge.

An affidavit of support is one way to prove that you won?t become a public charge. An affidavit of support is a form signed by a person promising to support you, if you need support, once you become a permanent resident. Sometimes you must submit an affidavit of support as part of your application for permanent residence. In other cases the affidavit is just one way to prove you won?t become a public charge.

The 1996 immigration law made an affidavit of support a required document in most Family-Based cases. The law also requires an affidavit of support if you are coming to the United States to work for a relative or for a business where relatives own 5 percent of the company. Where the law requires an affidavit, the person who signs for you must prove the ability to support you at 125 percent of the federal poverty guidelines. If you are an active member of the armed forces petitioning for a spouse or child, you need only show support at 100 percent of the poverty level. If your petitioner doesn?t have enough income, he or she can get a joint sponsor to submit an affidavit. You or your sponsor can also use liquid assets (money in the bank, stocks, mutual funds) to prove you won?t become a public charge. Sometimes a sponsor can use income from family members living in their household to support the affidavit. A sponsor under the new rule must submit notice to the USCIS of a change of address until the sponsorship requirement expires. Perhaps the most significant change in the law is the law that makes affidavits of support binding contracts. The USCIS issued a new form, USCIS form I-824, Affidavit of support Under 213A of the Act, which you must use where the law requires an affidavit.

The new affidavit of support rules put in place by the 1996 immigration act apply to adjustment of status applications filed with the USCIS on or after December 19, 1997. The rule also applies to immigrant visa applications filed at U.S. consulates on or after December 19, 1997. If you filed for adjustment of status or consular processing before the cutoff, you still must prove you won't become a public charge. However, you can use other evidence, such as a letter from your employer to prove you won?t become a public charge. If you do submit an affidavit in a pre-December 19, 1997 case, you can use the old Affidavit of Support form, USCIS form I-134, Affidavit of Support. Using USCIS form I-134, you'll need only show income at 100% of the poverty level and you can use your own income to prove your can support yourself. Also, I-134 affidavits of support are not binding contracts. For more on adjustment of status and consular processing, see chapter 6.

The public charge and affidavit of support rules in place before Congress changed the in 1996 still apply in many cases. Most notably, lottery green card cases and nonimmigrant visa applications. So, at the end of this chapter, I explain how you can show that you won?t become a public charge under the old rules.

Tara?s story illustrates the how the December 19, 1998 cutoff rule works.

Tara's Story:
Tara's mother, a permanent resident petitioned for Tara to qualify her for permanent residence. The USCIS received the petition on January 10, 1994. Tara is in the United States on an F-1 student visa. Because of the backlog in the quota for the unmarried sons and daughters of permanent residents, Tara won't qualify for permanent residence until sometime after the year 2000. When Tara eventually qualifies to submit her application for either adjustment of status or consular processing, she'll need to submit USCIS form I-824 signed by her mother.

Is an Affidavit of Support Absolutely Required in Your Case?
If you?re getting your immigrant visa based on a petition from a family member, the law now requires you to submit an affidavit of support from that person. The USCIS calls the relative the ?sponsor.? The only exceptions to this rule are for people self-petitioning under the special rules for a battered spouse, child, or parent of a battered child (see chapter 2) or as the widow/widower of a U.S. citizen. Even if you are wealthy, you need someone to sign for you. There?s one other situation where the law insists that you get an affidavit of support. That?s the unusual situation that you?re getting your immigrant visa based on an offer of employment and your employer is a relative or a company where relatives own 5 percent. A sponsor under the new rules uses USCIS form I-864.

Josie?s story illustrates the requirement that a family-based sponsor submit an affidavit of support.

Josie?s Story:
Josie?s mother, Marsha, is a U.S. citizen. Josie and her husband, Michael, want to become permanent residents of the United States. Suppose Marsha petitions for Josie. Though Josie and her husband can support themselves, the law requires an affidavit of support from Marsha. Marsha must prove that Josie and Michael can be supported at 125 percent of the federal poverty level. If Marsha doesn?t have sufficient income and/or assets, she may ask a person with more resources to be a joint sponsor. If a relative of Marsha has been living with her for at least six months, Marsha can include that relative?s income if she becomes a "contract sponsor."

Finally, if Marsha, Josie, or a contract sponsor, have liquid assets (money in the bank, for instance), Josie can use those assets to prove she won't become a public charge. However, even if Josie's assets are enough, standing alone, to prove that she won't become a public charge, Marsha must still submit an affidavit of support.

Who can be a sponsor?
Sponsors must also be U.S. citizens, nationals, or lawful permanent residents; age 18 or over; and have their primary residence in the 50 States, Washington, D.C., or a U.S. territory or possession.

Proving You Can Support a Relative: the 125-percent Rule, Household size, Income, Assets and the income of household members
Where the law requires an affidavit of support, your petitioning sponsor (or your sponsor and a cosigner) must prove that he or she can support you at 125 percent of the federal poverty guidelines. Sometimes you can use assets to supplement the petitioner?s income. The poverty guidelines specify the minimum amount you can earn and still qualify for public assistance. The guidelines for 1998 can be found in appendix F ?Poverty Guidelines.? If you are an active member of the U.S. Armed Forces, your unmarried children under 21 and your spouse need only prove that you can support them at 100 percent of the guidelines.

Mark?s story illustrates how this rule works.

Mark?s Story
Mark is single and 25 years old. His mother, a permanent resident of the United States petitioned for him to become a permanent resident. Though he has a good job, the 1996 immigration law requires that he get an affidavit of support from his mother. His mother is unmarried and has two other children. That means that when Mark joins the family, they will be a family of four. In 1998, the poverty line for a family of four in New York, where his mother is living, was $16,450. Mark?s mother (or his mother and a cosigner) must show income of at least 125 percent of that amount ($20,562). The amount will be higher in 1999.

Under the 125 percent rule, the amount you need to show depends on the size of your household including, as illustrated above in Mark?s Story, the newly arriving immigrants and yourself as the sponsor. Household size also includes anyone living with the sponsor for at least six months related to the sponsor by birth, marriage, or adoption. Also included are dependents listed on the sponsor's Federal income tax return for the most recent tax year, and immigrants previously sponsored using the new affidavit of support.

Household Contract Sponsor Rule
If any of the sponsor?s household members are working, sometimes you can include the household members? income with the sponsor?s income. The household member must submit USCIS form I-864A, Contract Between Sponsor and Household Member. This contract makes the household members jointly responsible with the sponsor to reimburse the costs of any means-tested public benefits used by the sponsored immigrants. See, The Affidavit of Support as a Contract Rule, below.

A ?household contract? sponsor must be related to the petitioning sponsor by birth, marriage, or adoption. Also, the contract sponsor must have lived in the sponsor's household for at least six months or the primary sponsor must have listed the contract sponsor on his or her income tax.

The Joint Sponsorship Rule
If your petitioning relative doesn?t earn enough to provide for you, then you can get another person to act as a cosponsor. Both your sponsor and cosponsor must submit affidavits of support. While relatives are often the best cosponsors, the law doesn't require that the cosponsor be a relative of either the applicant or the primary sponsor.

Sally?s story illustrates the joint sponsor rule.

Sally?s Story:
Sally, a U.S. citizen, wants to bring her mother here from Italy. She and her husband both work, but they barely make enough money to support themselves and their three children. Suppose Sally petitions for her mother as an Immediate Relative of a U.S. citizen (see Chapter 2). When her mother goes to her immigrant visa interview, she must submit an affidavit of support from Sally. However, Sally doesn?t have the resources to support her mother at 125 percent of the federal poverty level. So she must have another person, preferably a close relative, to be a joint sponsor. Sally and the joint sponsor must both sign affidavits that Sally?s mother can submit with her immigrant visa application. Sally asks her cousin Cathy to be a joint sponsor and sign a separate USCIS form I-824 for Sally?s mother to submit with her application. Cathy is an executive in a bank and makes enough to support her family and her aunt as well. By submitting both Sally and Cathy?s affidavits, Sally?s mother can show she?s not likely to become a public charge.

The Affidavit of Support as a Contract Rule
Under the 1996 immigration act, the new affidavit of support is now a contract between you, the government, and the person(s) who signed for you. If your sponsor won?t provide you financial assistance, you can sue them. If you receive certain public benefits (benefits where your income is an eligibility factor) from a federal, state, or local government agency, the agency can collect the cost of that benefit from your sponsor. For instance, if you get food stamps, the government can try to collect the cash value of these Food Stamps from your sponsor.

Your sponsor?s contractual obligations continue until you become a U.S. citizen or you have worked 40 quarters (the equivalent of ten years).

The rule that makes your relative responsible for the public benefits you receive does not apply to emergency Medicaid; immunization; some testing for communicable diseases; short-term, non-cash emergency relief (like shelter during a hurricane); child nutrition, including the WIC program and school meals; foster care and adoption assistance; higher education loans and grants; elementary and secondary education; Head Start, Job Training Partnership Act (JTPA), and some non-cash programs such as soup kitchens.

The legal responsibility of the person who signs an affidavit of support for you applies only to public benefits, not to private debts. So, if you go into debt by buying a car or appliance, the relative signing the affidavit is not responsible for that debt.

Using Assets to Prove you won't become a public charge
If your sponsor, cosponsor or a household contract sponsor doesn't have sufficient income to prove that you won't become a public charge, your assets or a sponsor?s assets can make up any difference between required income and the poverty guidelines. The assets must equal five times the difference between the sponsor's income and the minimum income requirement under the guidelines. You or your sponsor must be able to convert the assets to cash within one year. Examples of assets are money in bank savings or checking accounts, stocks or mutual funds, and certificates of deposit.

Scott's story illustrates how you can use assets to prove you won't become a public charge.

Scott's story:
Scott is twenty-two years old and he is studying in a U.S. graduate school. He is married and he and his wife, also a student, have one child. Scott's mother, Marsha is a U.S. citizen. She petitioned for Scott to become a permanent resident. Marsha, the mother, is supporting herself and Scott's three brothers and sisters. His father died and left his savings of $100,000 to Marsha. Marsha doesn't work, but she receives income of $10,000 per year from the life insurance policy taken out by Scott's father.

Scott's mother must submit an affidavit of support and show income for a family of seven, herself, Scott and his wife and child, and Scott's three siblings. The poverty level in 1998, when Scott and his family applied for permanent residence, was Scott?s mother's income was only $10,000, less than necessary to prove she could support herself and Scott?s family at 125 percent of the federal poverty level. However, Scott? mother has $100,000 in savings from her inheritance from her husband (more than five times the difference between income and the poverty guidelines), so Scott can prove he's not likely to become a public charge.

The Change of Address Rule
If you are a primary sponsor, cosponsor or household contract sponsor, and you move, you must report a change of address to the USCIS within thirty days. You report the change using USCIS form I-865, Sponsor's Notice of Change of Address. You must also report the change to the State government where you resided when you submitted the affidavit to the USCIS and to the state government where you now reside. As we went to press, the USCIS hadn't yet provided information on how to report to state governments.

Proving That You Won?t Become a Public Charge in Lottery Cases and other Cases Where the Law doesn?t require an Affidavit of Support

As mentioned above, not every case requires that you follow the new rules and use the new affidavit of support form. For instance, if you?re applying for a lottery green card (see Chapter 4), a relative can use the old affidavit of support form, USCIS form I-134. You can use your own income as well, to prove you won?t become a public charge.

Among the ways to prove that you are not likely to become a public charge is by:

Even if you?re working ?off the books? and your boss is paying you ?under the table? (meaning that your employer doesn?t keep records of your wages), you can still use your work history to prove that you can support yourself. One way to do this is by filing tax returns. If you do not have a social security card, you can still file your tax return. Just leave the space for your social security number blank. The IRS will assign you a temporary number, called a Taxpayer Identification Number (TIN), for record-keeping purposes. (The IRS may charge you a $50 penalty for filing without a social security number.) When you apply for permanent residence, you must submit IRS Form 9003, which asks whether you have paid taxes in the previous three years. A consular officer or USCIS examiner is usually more concerned about whether you are likely to become a public charge than the collection of taxes.

‹‹ Go Back To Book Update