Historically, a foreign national applying for Permanent Residence or a Visa has
been required to demonstrate that he or she would not become a ?public charge?
of the United States. Failure to overcome this ground of excludability
rendered an applicant inadmissible to the United States. In determining the likelihood
of a foreign national becoming a public charge, the Immigration Service Examiner
or the Consular Official considered the applicant?s ?age, health, family status,
financial assets, resources, education and skills.? In hindsight, this standard
was far more lenient, when compared to that of today. In 1996, the Illegal Immigration
Reform and Immigrant Responsibility Act (hereinafter IIRAIRA) amended the Immigration
and Nationality Act and created a new requirement for foreign nationals sponsored
for permanent residence by a family member, and in the employment context where
a family member holds 5% interest in the petitioning company. Such individuals
must submit with the Application for Permanent Residence, Form I-864, ?Affidavit
of Support Under Section 213A of the Act? (hereinafter referred to as Form I-864
or the Affidavit). The applicant individually may not complete Form I-864; only
a qualified ?sponsor? may file the Affidavit on behalf of the foreign national.
In addition to the fact that the Affidavit is a six-page form with four pages
of instructions, Form I-864 is a legally enforceable agreement wherein the
sponsor commits to providing support to the foreign national. Hence, an appropriately
executed Affidavit creates a legally binding contract between the sponsor,
the foreign national and the federal, state and local governments whose resources
may be recouped should the foreign national receive any assistance from governmental
agencies. This contract is enforceable for a substantial time period and does
not end by the termination of the family relationship. In fact, validity of
the Affidavit extends beyond the life of sponsor, and liability for the Form
I-864 only ends if the foreign national becomes a citizen or if he either works
or may be credited with 40 qualifying quarters of coverage as defined by the
Social Security Act.
For Permanent Residence
Application Processing Only
The petitioner must file Form I-864 in all family-based adjustment applications
as well as for applicants who complete visa processing through U.S. consular
posts. Also, the Affidavit is required in a limited number of employment-based
petitions where the petitioning employer is five percent (5%) owned by a family
member sponsoring the employee. These situations include:
Adjustment
of status and immigrant visa (consular processing) applications
filed on and after December 19, 1997 based on INS approval
of Form I-130, ?Petition for Alien Relative.?
Adjustment
of status applications by K-1 fiance(e) nonimmigrant filed
on and after December 19, 1997.
Adjustment
of status and immigrant visa (consular processing) applications
based upon the INS approval of Form I-140, ?Immigrant Petition
for Alien Worker,? where the petitioning employer is a relative
of the beneficiary or the owner of the company/employer is
related to the beneficiary and the relative owns 5% or more
of the company.
Adjustment of status and immigrant visa (consular processing) cases for orphans
based upon the filing of Form I-600, ?Petition to Classify Orphan as Immediate
Relative.?
Form I-864 is not used for any application by a foreign national to enter
the United States as a nonimmigrant. In the event a consular officer requests
evidence of financial support in the United States, as in the B-2 context,
the previous Form I-134, ?Affidavit of Support? can be used. A K-1 fiance(e)
does not submit the Form I-864 when applying for the K-1 nonimmigrant visa,
as the K-1 is technically a nonimmigrant visa, and Form I-864 will be submitted
after the K-1 fiance(e) enters the United States, marries the U.S. citizen
petitioner, and files to adjust his or her status to permanent resident.
Further, the Form I-864 is not used in the following situations:
By foreign
nationals who qualify as self-petitioning widow/ers or battered
spouses and children.
In employment-based
applications where the petitioning employer is neither a
relative nor a more than 5% owner of the company (petitioning
employer) of the foreign national.
Diversity
visa ?winners? applying for adjustment of status or consular
processing.
Returning
permanent residents whose re-admission to the United States
is challenged on ?public charge? grounds by an INS inspections
official upon re-entry.
By principal
applicants on behalf of ?accompanying? or ?following to join?
derivative applicants, if the principal applicant was not
required to submit a Form I-864.
The individual completing and executing Form I-864 is called a ?sponsor.?
To qualify as a sponsor the individual must be (i) be age 18 or older, (ii)
a U.S. citizen or national, or a lawful permanent resident of the United
States, and (iii) live in, hold domicile, in the United States, Washington
D.C. , or a U.S. territory or possession. 13 Additionally, the sponsor must
be:
The individual
who executed/filed Form I-130, ?Petition for Alien Relative?
on behalf of the individual seeking permanent resident status.
The individual
who executed/filed Form I-129F, ?Petition for Alien Fiance(e)?
on behalf of the foreign national fiance(e).
The petitioner
of Form I-140, ?Immigrant Petition for Alien Worker?, where
the petitioner or petitioning company?s owner(s) is a relative
of the beneficiary and the relative owns 5% or more of the
company.
The parent(s)
adopting an orphan.
An additional person if the original ?sponsor? does not meet the financial
requirements. Such an individual is called a ?joint sponsor.? Where necessary,
more than one joint sponsor may be used, however each individual must personally
qualify as a ?sponsor.? Each joint sponsor is ?jointly and severally liable?
on the affidavit.
The sponsor must have an income or assets or a combination thereof that meets
at least 125% of the stated poverty guidelines. In deference to the sacrifices
made by our U.S. armed forces, sponsors on active duty in the U.S. Armed
Forces need only meet 100% of the stated poverty guidelines. Moreover,
all household members of the sponsor are considered when determining whether
the sponsor meets the poverty guidelines. Under this provision, members of
the household may even include individuals whom the sponsor does not directly
support. The following persons are considered household members of the sponsor:
Individuals
related, by blood, marriage or adoption, to the sponsor,
such as a spouse and all children. ?Children? are considered
as persons under age 21, irrespective of parental custody.
Parent(s) of the sponsor are also included in this determination
if residing with the sponsor.
Any other
person listed as a dependent on the sponsor?s IRS income
tax return.
Any person
for whom the sponsor has previously executed a Form I-864.
The beneficiary,
or applicant, and all accompanying dependents.
II. Recent Developments and State Department Updates
In a series of cable notifications the U.S. Department of State has issued guidelines and procedural changes in processing of Forms I-864.
A. Reduction of Supporting Documents and Photocopies
Among the changes is a reduction in supporting documents for accompanying
family members. In addition, the State Department advised that original signatures
are no longer required on accompanying family members? Forms I-864 and I-864A.
Only one file need contain an original signed and notarized Form I-864 and
I-864A, and other applicants may submit true photocopies.
The State Department has also clarified that the Form I-864 must be submitted
within six months of signature, or a new form is required. Moreover, once
the Affidavit has been accepted it will not expire. However, if the Affidavit
was submitted within six months of signature but more than 12 months pass
before the interview, new supporting documents will be required.
B. Where Form I-864 Meets the Technical Requirements ? Credibility of the Sponsor is Not an Issue.
The Department of State also advised that the credibility of an offer of
support from a person who meets the definition of a ?sponsor? and who has
verifiable resources is not a factor, where a consular officer finds that
the Form I-864 meets the technical requirements of INA Section 213A. 21 The
determination then turns on the sufficiency of support, for public charge
concerns. The State Department further states that the new Affidavit of Support
requirements have not changed the long-standing legal presumption that an
able- bodied employable individual will be able to work upon arrival in the
United States, and practitioners are encouraged to remind consular officers
of this where sufficiency is challenged. Also, in preparing the Form I-864,
the Affidavit may be notarized by either an INS officer, a consular officer
or a notary based in the United States only.
Regarding U.S. income tax returns, the Department of State requires that
the sponsor submit tax returns for each of the three (3) years immediately
prior to the visa interview in which he or she was obligated to file. Failure
to file the return will not exempt a sponsor from this requirement. In the
case where a sponsor has not filed in the last three years, they are entitled
to a late filing or amended tax return filing with the IRS.
Recently the Department of State clarified several issues regarding the domicile
of a sponsor, advising that only individuals with domicile in any of the
states of the United States, the District of Columbia or any territory or
possession of the United States, may be sponsors. In addition, a joint
sponsor cannot be authorized in cases where the petitioner cannot be a sponsor
by virtue of domicile. sponsors residing temporarily abroad must have a principal
residence in the United States with the intent to maintain that residence
for the foreseeable future. Moreover, lawful permanent residents must also
demonstrate they have not abandoned their status.
1. ?Temporary? Defined
Provided a sponsor can establish that (i) he or she left the United States
for a limited time only and not for an indefinite period, (ii) intended to
maintain ties to the United States and (iii) has evidence establishing such
ties, the sponsor may be considered as domiciled in the United States.
2. Expatriate Assignments
Note the INS Regulations provide that sponsors who can show they had a domicile
in the United States but are now living temporarily abroad because of certain
employment shall be considered to have retained their domicile in the United
States. 28 The following are qualifying types of employment abroad:
Employed
by the U.S. government; an American institution of research
recognized by the Attorney General;
an American
firm or corporation engaged in whole or in part in the development
of foreign trade and commerce with the United States or a
subsidiary thereof;
a public
international organization in which the United States participates
by treaty or statute.
Authorized
to perform the ministerial or priestly functions of a religious
denomination having a bona fide organization within the United
States and stationed abroad pursuant to that calling.
Each principal applicant must submit an original signed and notarized Form
I-864 from the petitioner/sponsor, any joint Form I-864 required and/or Form
I-864A, if needed. Accompanying family members listed in the signed original
may submit true copies. Moreover, only the principal applicant must submit
supporting documentation (tax returns, employment letters, proof of assets,
etc.) if other family members are accompanying the beneficiary at the same
time.
Recent updates on sponsorship include the clarification that each joint sponsor
must meet the minimum 125% income requirement and that among family members
on an application, the joint sponsorship may not change. Further, in
the event a joint sponsor dies after the principal applicant has immigrated
to the united states; there may be a substitution of joint sponsor. Note
the estate of the joint sponsor remains liable for any requests for repayment
of benefits that arose prior to the sponsor?s death.
Where the total income between that of a sponsor and all family members who
have signed a Form I-864A does not reach the threshold (125% above the poverty
guidelines) a valuation of assets may be used. The cash value of assets must
equal five times the difference between the sponsor?s income and 125% of
the poverty line for the household size. Furthermore, assets outside the
United States may be used in the valuation where they may be readily liquidated
within 12 months. Where a sponsor relies on income not subject to taxation
? such as housing for clergy or possibly students, this may be counted as
income. Where a visa applicant has worked with a steady income and has resided
with the sponsor for six months before the Affidavit is completed, such income
may be counted toward the threshold amount. However, absent these circumstances
a mere job offer for the applicant may not be counted.
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