The Affidavit of Support form and interim regulation were published in the Federal Register on October 20, 1997, as required by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The new legally enforceable Affidavit of Support (Form I-864), as specified in Section 213A of the Immigration and Nationality Act, must be completed by U.S. citizens and legal permanent residents who sponsor family members as immigrants to live in the United States. The new Affidavit of Support form will be required for immigrant visa and adjustment of status applications filed on or after December 19, 1997, 60 days after publication. The published regulation also implements a 120-day public comment period.
To ensure that the immigrants are not likely to rely on public benefits, sponsors must demonstrate on the new form that they meet minimum income requirements and can be financially responsible for the sponsored immigrants. Sponsors must complete the new Affidavit of Support form for relatives who will file applications for immigrant visas or for adjustment of status on or after December 19, 1997.
The Affidavit of Support Filing Process
All immediate relative and family-based immigrants, including orphans, must have a sponsor. In addition, a sponsor is required for employment-based immigrants who are coming to work for a relative or for a company in which a relative owns 5 percent or more of the company. An Affidavit of Support is not required for an immigrant who is self-petitioning for immigration benefits because they are the battered spouse or child, or the widow/widower of a U.S. citizen or legal permanent resident. Also, the new Affidavit of Support is not required for any other group of immigrants or refugees.
The sponsor must be the family member who filed the visa petition for the immigrant, or the family member who owns 5 percent or more of the company that filed the petition for the immigrant. The sponsor must also be a U.S. citizen or lawful permanent resident, at least 18 years of age, and domiciled in the United States (including territories and possessions).
The sponsor must complete and sign the Affidavit of Support and attach all required documentation, including copies of tax returns. The form and documentation are subject to verification by other appropriate government agencies.
After completing the Affidavit of Support, sponsors forward the Affidavit of Support form and related documentation to the prospective immigrants. To protect the privacy of financial records, sponsors may enclose the documents in sealed envelopes to be opened only by designated Government officials. Prospective immigrants submit the Affidavit of Support to Department of State (DOS) consular posts abroad when they are interviewed for their immigrant visa — or, if applying for adjustment of status in the United States, to the Bureau of Citizenship and Immigration Services (BCIS) along with their application for adjustment of status. In both cases, the Affidavit of Support must be submitted to the government within 6 months of signature by the sponsor.
Affidavit of Support Income Requirements
The law requires a sponsor to demonstrate an income level at or above 125 percent of the Federal poverty line, as published annually by the Department of Health and Human Services. To establish income level, sponsors must provide proof of current employment and copies of their Federal income tax returns for the 3 most recent tax years. The income of certain other household members may be added in computing income level if they sign a contract, Form I-864A, agreeing to make their income and/or assets available for the support of the sponsored immigrants. For active duty military personnel, the income requirement is 100 percent of the poverty level, if they are sponsoring their spouse and/or child.
If the sponsor’s household income does not meet the income requirements, evidence of assets, such as cash in savings accounts, stocks, bonds, or property, may be considered in determining the sponsor’s ability to support the immigrant.
If the sponsor cannot meet the required income level based on income and assets, another person may serve as a joint sponsor. The joint sponsor must meet all sponsorship requirements, other than being the petitioner, and be willing to assume legal liability for the sponsored immigrant(s) with the petitioning relative.
BCIS and DOS will not use a set formula to determine whether a person qualifies as a sponsor. The greatest weight will be placed on earnings from current employment. In most instances, sponsors will be found eligible if they are employed and demonstrate the ability, along with household members who sign a contact on Form I-864A, to earn income at or above 125 percent of the poverty line for the number of persons who will be supported.
Enforcement of the New Affidavit of Support
Most immigrants who are sponsored under the new Affidavit of Support will be barred from federal means-tested public benefit programs for 5 years. To date, federal agencies have announced the following four programs as means-tested public benefits: Food Stamps, Medicaid, Supplemental Security Income (SSI), and Temporary Assistance to Needy Families (TANF.) After the 5 years, public benefit granting agencies will be able to count the income and resources of the sponsor, and the sponsor’s spouse, as part of the immigrant’s income in determining whether the immigrant is eligible to receive public benefits. This action is called “deeming.” States may also choose to “deem” in determining eligibility for their own means-tested public benefit programs.
The Affidavit of Support is enforceable against the sponsor until the immigrant becomes a U.S. citizen, can be credited with 40 quarters of work, leaves the United States permanently, or dies. If sponsors do not provide basic support to the immigrants they bring to the United States, they may be sued by the sponsored immigrants and by federal or state benefit agencies for the amount of the means-tested public benefits provided to sponsored immigrants.