January 24, 2022

Volume XII, Number 24

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January 24, 2022

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I-864: Proving the Ability to Support Sponsored Immigrants

Most green card applicants are required to provide assurances that they will not become dependent on public benefits intended for low-income Americans. This assurance is made through submission of Form I-864, an affidavit of financial support from a qualifying individual. I-864 affidavits are required in all family-based immigration cases. Employment-based immigrant visa applicants must also provide Form I-864 if a U.S. citizen or legal permanent resident relative filed the immigrant visa petition or owns 5% or more of the petitioning company.

The I-864 is not an affirmative obligation to support the sponsored immigrant. Rather, it is an enforceable promise that the new immigrant will not rely on state and federal welfare benefits. The I-864 can be enforced against the sponsor by a government agency seeking reimbursement for means-tested public benefits (e.g., Medicaid) paid to the new immigrant. The I-864 is binding on the sponsor until: (1) the immigrant becomes a U.S. citizen; (2) the immigrant can be credited with 40 quarters of work (usually 10 years); or (3) the immigrant or the sponsor dies. Furthermore, if the immigrant departs the U.S. and loses or gives up his/her green card, the I-864 obligations end. In a marriage-based green card case, even if the immigrant spouse and the U.S. citizen or green card holder spouse divorce, the I-864 sponsor continues to be liable under the I-864. It is recommended that all sponsors read the I-864 form and instructions to be fully aware of the consequences of using this form.

In cases where (1) the affiant is the petitioner of the family member sponsored on the affidavit, (2) the affiant is using his/her own earned or retirement income, documented on a Form W-2, and (3) the sponsored immigrant is the only person immigrating based on the underlying visa petition, Form I-864EZ may be used instead of the I-864. The EZ version is shorter and more direct for straightforward cases.

Who can be a Sponsor? 

The I-130 petitioner must sign Form I-864 whether or not his/her income and assets are sufficient and whether or not the sponsored immigrant is employed. If the I-130 petitioner does not have an annual income and/or assets of at least 125% of the federal poverty guidelines, the immigrant will need a joint sponsor to also file an I-864 form. The joint sponsor does not have to be a relative of the immigrant or the I-130 petitioner. To qualify, however, a joint sponsor must be a U.S. citizen or permanent resident who is at least 18 years of age and domiciled in the U.S. A sponsor must also maintain an annual income equal to or greater than 125% of the federal poverty guidelines. For the most up-to- date income requirements, visit http://www.uscis.gov/i-864p.

What Documents Must be Included with Form I-864? 

To prove that the sponsor meets the minimum income requirement, the sponsor must submit copies of his/her personal tax return (Form 1040) and W-2 for the past tax year. If the sponsor cannot locate copies of past tax returns, transcripts can be ordered, free of charge, online here or by calling 1-800- 908-9946. Alternatively, transcripts can be obtained by sending IRS Form 4506-T to the corresponding IRS office through regular mail or fax. IRS Form 4506-T can be downloaded from the IRS website here. The IRS requires about 10 working days to issue the transcript, which will be mailed to the address listed on the tax return.

In addition to tax transcripts, the sponsor must also provide proof of any additional income (e.g., alimony, child support, and dividend or interest income) included in Form I-864. A sponsor’s spouse who qualifies as a household member and wishes to have his/her income counted toward the income requirement must complete and sign a Form I-864A. Finally, the sponsor must provide evidence of his/her U.S. citizenship or permanent resident status, such as a copy of his/her birth certificate, certificate of naturalization, certificate of citizenship, consular report of birth abroad to citizen parents, U.S. passport, or a photocopy of the front and back of the sponsor’s green card.

Can a sponsor use his/her assets to meet the minimum income requirement?

If the total income of the sponsor and any family members who have signed a Form I- 864A does not meet the minimum income requirement, the sponsor can apply the value of
his/her assets toward the income calculation. To qualify, the cash value of assets must equal five times the difference between the sponsor’s income and 125 percent of the poverty line for the household size. U.S. citizens sponsoring their spouses or minor children, however, need only show that the cash value of their assets is three times the difference. Only assets that can be converted into cash within one year and without causing considerable hardship or financial loss to the owner can be used for purposes of the I-864. Alternatively, a co-sponsor can also submit an I-864 to satisfy the affidavit of support requirement. See the answer to the “Who can be a sponsor?” question above.

What is the Filing Fee? 

There is no filing fee when Form I-864 is submitted to USCIS. However, if the form is submitted to the Department of State, the fee is $120.

What is Form I-865, Sponsor’s Notice of Change of Address?

After an I-864 is filed, a sponsor is obligated to update the U.S. government with any change of address within 30 days of moving for as long as the I-864 is in place. A sponsor can
satisfy this requirement by filing Form I-865 with USCIS. There is no fee associated with filing Form I-865.

© Copyright 2013 - 2022 Miller Mayer LLP. All Rights Reserved.National Law Review, Volume VII, Number 349
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About this Author

Hilary T. Fraser, Miller Mayer, work authorizations attorney, immigration benefits Lawyer
Partner

Hilary T. Fraser has practiced immigration law at Miller Mayer since 1991.

Ms. Fraser represents EB-5 families, physicians, engineers, teachers, and other highly trained professionals, as well as hospitals, colleges, IT companies, and religious organizations, in pursuit of work authorizations and other immigration benefits. Ms. Fraser has presented at national conferences on immigration office staffing and U.S. immigration agency practice. Prior to law school, Ms. Fraser lived in China and New York City, where she worked as a teacher and writer...

607-273-4200
Sandra Bruno, Miller Mayer Law Firm, Immigration Law Attorney
Associate

Sandra Bruno is an Associate in Miller Mayer’s Immigration practice group.

Ms. Bruno practices immigration law, with a focus on employment-based immigration exclusively. She assists employers in obtaining non-immigrant and immigrant status for their employees. She has extensive experience working with post-doctoral researchers, professors, engineers, scientists, scholars, and individuals of extraordinary ability. Ms. Bruno also represents individuals on a variety of family-based immigration and naturalization matters. Prior to joining Miller...

607-273-4200
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