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A. Background

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.

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B. What is Form I-864? Is It a Legally Binding Contract?

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. 

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C. When is Form I-864 Used?

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.?

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D. When is Form I-864 Not Used?

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.

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E. Who Completes Form I-864? A ?Sponsor?

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.

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F. What are the Financial Requirements the ?Sponsor? Must Meet?

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.

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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.

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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. 

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C. Requirement of U.S. Income Tax Returns

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. 


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D. Issues of Domicile to Determine Eligibility as a Sponsor

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.

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E. Documentation

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.

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F. Joint Sponsors

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. 

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G. Counting Assets

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.