I-864, Affidavit of Support

Posted on Feb 25, 2021 by Chris Prescott

The Affidavit of support is filed to establish willingness and ability to financially support your immigrant spouse or family member.  By filling this form, you are declaring to USCIS that the intending immigrant (and joining family member) will not become a public charge.  As the Petitioner of the immigrant, you are required to submit this form when it is time for them to adjust their status to a Lawful Permanent Resident.

For more information on the public charge rule, please see our website: The Dawn of a New Era Becoming Familiar with the New Public Charge Rule

Within the I-864 form, you will provide USCIS with your financial information, including your annual income, assets (only if applicable) and household size.  USCIS will then use the HHS Poverty guideline (I-864P) to evaluate your ability to support the intending immigrant.

You can find the HHS poverty guideline chart on the USCIS website.  The chart provides the poverty guideline as per your household size.  When determining your household size, you will include yourself, your spouse, children, stepchildren, and any dependents listed on your tax return.  Unless you are in the US armed forces, you will need to have an income of at least the amount listed under the 125% column.

If you do not have an income of this amount, you still have options.  You will need to discuss these options with your attorney to determine which is the best option for your case.

You can use your assets to supplement your income.

If you have assets, including real estate, stocks, bonds, or any asset that can be converted into cash within one year without considerable financial loss to you, the owner, you can use these to supplement your lack of income. However, the value of your assets will need to be five times the difference between your household income and the poverty guideline.  Unless you are a US citizen, then it would need to be three times the difference.

For example, if the 125% poverty guideline for your household size is $30,000, but you make $20,000 per year.  The difference between the poverty guideline and your income is $10,000.  The total value of your assets must be equivalent to $50,000 if you are a Permanent resident or $30,000 if you are a US citizen.

You can use the income of your foreign national spouse.

If your spouse is currently working, it is possible to use their income to meet the poverty guideline.  However, the source of said income must be the same after he/she becomes a permanent resident.

You can use a joint sponsor.

A joint sponsor is a family member or friend that is willing to also sponsor Your Foreign National Spouse.  By being a joint sponsor, the person must be willing to financially support your spouse if needed.  The individual will also need to complete and submit an I-864 form and submit to USCIS along with the I-485.

To qualify as a joint sponsor, the person must meet the following requirements

  • Must be 18 years of age;
  • Reside in the US or its territories;
  • Willing to financially support the Foreign National Spouse until he/she becomes a US citizen or is credited with 40 quarters of work (10 years); and
  • Meet the poverty guideline for his/her household size.

However, within the recent year, USCIS implemented a new public charge rule. Because of this change, USCIS has become stricter on cases filed using joint sponsors.  If a joint sponsor is used, it is possible for USCIS to question if the sponsor will actually provide the financial support. Please see the link provided at the beginning of this article for more information.

You can use the income from any working family members or dependents living in your household. 

For this option, you can only use the income of the relatives or dependents living in your household or any dependent listed on your most recent tax return.  The individual must also be willing to complete and sign the I-864A and be financially liable for the foreign national spouse.

You can be exempt from filing the I-864 altogether.

If your spouse is in the US and has been working for many years, it is possible that you could be exempt from the Affidavit of support if he/she has 40 qualifying quarters (aka Social security credits).  You can contact the social security administration to obtain this information.

If your spouse is close to 40 hours, you can also use the credits you have gained during your marriage.

Again, these are some of the potential options.  It is important to discuss these options with your attorney prior to filing the case.

After filing an affidavit of support, you as the sponsor (or joint sponsor) will be legally obligated to support the intending immigrant(s) until one of the following occurs:

  • The intending immigrant(s) naturalize;
  • The intending immigrants cease to be a permanent resident and departs the US;
  • Obtains a new adjustment of status grant in a removal proceeding;
  • The intending immigrant(s) have earned 40 hours of social security quarters (this could take approximately 10 years); or
  • The intending immigrant(s) dies.

 

If you have any questions, please contact Partner, Chris Prescott at cprescott@patellegal.com.