On July 21, 2006, the Department of Homeland Security, United States Citizenship and Immigration Services (USCIS) changed the rules regarding affidavits of support.
Under the new rules, an Affidavit of Support must be filed on behalf of the intending immigrant in family-sponsored and certain employment-sponsored applications for permanent residency. The Affidavit is required in order to avoid a finding of inadmissibility as a public charge in that the sponsor demonstrates that he or she can meet at least 125 percent of the current federal poverty guidelines for the household size.
The rule changes apply to all adjustment of status applications that were pending on July 21, 2006 regardless of whether they were filed previously.
The changes in the rules have clarified who needs an affidavit of support, how sponsors qualify, what information and documentation they must present, and when the income of other persons may be used to support an intending immigrant’s application for permanent residence.
The rule changes further clarifies that it is the sponsor’s income in the year in which the intending immigrant applies for an immigrant visa or adjustment of status application that is to bear the greatest evidentiary weight in determining whether the affidavit of support is sufficient. Essentially, the final rule puts greater emphasis on the sponsor’s current income as opposed to the income demonstrated on the sponsor’s prior tax returns. However, the tax forms for past years serve as an indication of the sponsor’s ability to maintain that income over time.
If more than one year has elapsed since the submission of the Form I-864, the final rule gives the Department of State officer, immigration officer, or immigration judge the discretion to request more current information if the adjudicator concludes that additional evidence is necessary to the proper adjudication of the case.
Form I-864 and Form I-864A have been modified under the final rule. USCIS has further adopted two public use forms to comply with the requirements of the final rule. The new forms do not need to be notarized or signed before a consular officer.
USCIS designed Form I-864EZ, EZ Affidavit of Support under Section 213A of the INA, for use by a sponsor who relies on his or her own employment to meet the income requirements under the Act and the final rule. I-130 petitioners who are sponsoring only one beneficiary can only use form I-864EZ.
An intending immigrant uses Form I-864W, Intending Immigrant’s I-864 Exemption, to establish that a Form I-864 is not required in his or her own case.
Income Tax Returns
A sponsor will only be required to submit one Federal tax return, for the most recent tax year. However, the sponsor may, at his or her option, submit the sponsor’s or household member’s Federal income tax returns for the three most recent years if the sponsor believe these additional tax returns may help to establish the sponsor’s ability to maintain his or her household income at the applicable threshold set forth in the Poverty Guidelines.
If the sponsor has not filed the tax return for the past year, he or she must justify that there was no legal requirement to file such a return.
The final rule also gives the sponsor, substitute sponsor, joint sponsor, household member, or intending immigrant the option of submitting either photocopies or IRS-generated transcripts of the required tax returns. Along with the transcripts or photocopies, the sponsor, joint sponsor, household member, or intending immigrant must submit copies of all Forms W-2, Forms 1099, and schedules.
Clarifying the definitions of “Household size” and “Household income”
The new rule has clarified that the sponsor, in addition to himself/herself, must now include the following persons (even if these persons do not actually have the same principal residence as the sponsor): any spouse, any dependent children under the age of 21 and any other dependents listed on his/her most recent federal tax return or persons being sponsored in the affidavit of support and any immigrants previously sponsored with a Form I-864 and Form I-864EZ that the sponsor is still obligated to support.
The new rule provides for flexibility in the definition of “household size”. The old rule defined “household size” too broadly; since all related people at the same residence would be considered in the household, even if they were, in fact, separate economic “households”.
The final rule allows the sponsor to meet the requisite income requirements by including the income of additional relatives such as adult children, parents or siblings as long as these individuals sign Form I-864A in which they promise to use their income and resources in support of the intending immigrant.
The final rule continues to allow the income from the intending immigrant to also be combined with the sponsor’s income. The intending immigrant, unlike the other relatives, is not required to complete Form I-864A unless the intending immigrant has a spouse or children immigrating with him or her.
The purpose of the “significant assets” requirement is to ensure that a sponsor whose income is insufficient will nonetheless be able to provide adequate support until the sponsorship obligation ceases. The old rule required the sponsor to show that he or she has assets five times the difference between the federal poverty line and the actual household income.
The final rule modified the “significant assets” requirement slightly. If the intending immigrant is the spouse or child of a U.S. Citizen (but the child has already reached his or her 18th birthday), the “significant assets” requirement will be satisfied if the assets equal three times the difference between the federal poverty line and the actual household income.
A joint sponsor may submit a separate form I-864 in the event that the petitioner and primary sponsor cannot meet the income requirement for the household size. The final rule only allows for a maximum of two joint sponsors to support different family.
Exemptions from the Affidavit of Support Requirement
Effect of an Intending Immigrant’s Work History:
Under section 213A of the Act, all of the sponsor’s obligations under the affidavit of support end once the intending immigrant has worked, or can be credited with, forty (40) qualifying quarters of coverage under the Social Security Act. Under the new rule, if the intending immigrant can establish, on the basis of records of the Social Security Administration, that he or she already has, or can be credited with, the necessary quarters of coverage – the intending immigrant is exempt from the Affidavit of Support requirement.
Minor Children of United States Citizens:
If a US citizen is sponsoring a minor child for lawful permanent residency, that child would generally qualify for citizenship under Section 320 of the Immigration and Nationality Act. Thus, if the child becomes a citizen automatically, upon his or her admission or adjustment of status, there is no requirement to file an affidavit of support.
Self-petitioning battered spouses as well as self-petitioning widow/widowers are exempt from I- 864 requirements.