President Trump has approved a memorandum that would enforce the obligations of sponsors to reimburse the government when immigrants receive means-tested public benefits.
As part of the permanent residence process for family-based immigrants, a US resident signs an I-864 Affidavit of Support. The sponsor accepts legal responsibility for financially supporting this foreign national. This legally enforceable responsibility lasts until the foreign national becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.
In most cases, the Affidavit is completed only by the US family member that is petitioning for the foreign national (e.g. a US citizen woman bringing her foreign spouse to the US). In some cases, the petitioner's income is not enough for her to act as sponsor, however, so a joint sponsor is needed. Fore more information about Affidavits of Support, see here.
The Affidavit of Support has been required since 1997, pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Section 213A of the Immigration and Nationality Act requires that any government or non-government entity that provides a means-tested public benefit to a sponsored alien shall request reimbursement from the sponsor in an amount equal to the unreimbursed cost of such benefit.
In reality, this reimbursement provision has rarely been enforced, although it is a significant responsibility that sponsors should be very aware of. In my practice, I have always insisted on counselling the sponsor about the importance of the Affidavit and the obligations under it, even though I have never seen it enforced.
White House statement.
US Citizenship and Immigration Services (USCIS) has issued a new version of Form I-864P. This form is used to help green card applicants determine whether they or the "sponsoring" relative meets the income requirements for the Affidavit of Support. The sponsor must meet certain income requirements: they must show that their household income is equal to or higher than 125% of the US poverty level for the household size.
The US poverty guidelines change annually, and are lower for Alaska and Hawaii than for the other 48 states. For example, the poverty guidelines for a household of 4 for the lower 48 is now $24,300. In Alaska, the figure is $30,380 and Hawaii is $27,950. Remembering that the US citizen sponsor needs to show 125% of the poverty guidelines on the Affidavit of Support, the income therefore needs to exceed $30375 (lower 48 states), $37,975 (Alaska) and $34,937 (Hawaii).
For more details about the Affidavit of Support, see here.
This is the second in an occasional series of blog postings that answer questions on some of the most confusing aspects of immigration processing. You can find links to the other posts here.
Many permanent residence (green card) categories require the beneficiary to have an Affidavit of Support in place before the petition will be approved. The Affidavit of Support and related regulations are complex and are therefore difficult for a lay person to understand. I understand the confusion that many people feel about the I-864, so I hope these FAQs help.
1. What is an Affidavit of Support and when do I need one?
The US government requires petitioners in family-based permanent residence cases to complete and file an Affidavit of Support on connection with the sponsored immigrant. If you are bringing a relative to live permanently in the United States, you must accept legal responsibility for financially supporting this family member. You accept this responsibility and become your relative's sponsor by completing and signing a document called an Affidavit of Support (Form I-864). This legally enforceable responsibility lasts until your relative becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.
2. Do all immigrants need an Affidavit of Support?
No, the following immigrants do not need an I-864:
- Self-petitioning widows or widowers or battered spouses and children (petitioning on a Form I-360).
- Relatives who enter as refugees or asylees.
- People who have worked for 40 qualifying quarters (as defined in Title II of the Social Security Act), or who can be credited with 40 qualifying quarters (e.g. through a family member).
- Children who can automatically acquire citizenship through a parent.
3. What are the income requirements for an Affidavit of Support?
The sponsor must meet certain income requirements: you must show that your household income is equal to or higher than 125% of the US poverty level for your household size. The poverty guidelines change annually and are on this website. If the sponsor is on active duty in the Armed Forces of the United States, and the immigrant she is sponsoring is her spouse or child, the income only needs to equal 100 percent of the U.S. poverty level for the family size.
4. What is “household size?
The household size includes the sponsor, your dependents, any relatives living with you, and the immigrants you are sponsoring. For example, if you have a spouse and two children and you want want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125% of the US poverty level for a family of six. You must also include in your household size any immigrants you have previously sponsored under this part of the law (who are not yet naturalized citizens).
5. Who can be a sponsor?
If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a lawful permanent resident. You must be domiciled in the US. Usually, this means that you must actually live in the US, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, so that you still have your domicile in the United States.
6. What if a sponsor can’t meet the income requirements?
If you cannot show income of 125% of the poverty guidelines, you can opt for one of the following alternatives:
(a) Show that you have assets worth at least 5 times the difference between your income and the 125% of the poverty guidelines. For example, if 125% is $30,000, and your income is $20,000, you need to show assets worth $50,000, i.e. 5 x $10,000.
(b) Count the income and assets of members of your household who are at least 18 years old and are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent Federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member.
(c) Use the income and/or assets of the immigrants you are sponsoring, if you have listed them as dependents on your most recent Federal tax return or they have lived with you for the last 6 months. If the immigrant(s) meets these criteria, you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.
7. Where can I find more information?
For further details about the Affidavit of Support obligations, please see the following links:
USCIS Affidavit of Support page
Department of State FAQs
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.