Cite as "AILA InfoNet Doc. No. 98080159 (posted Aug. 1, 1998)"
Who needs an I-864 and Who doesn't?
Q: Is an applicant who made his or her first application prior to December 19, but
has not yet qualified for an immigrant visa, exempt from the requirement for an
I-864 Affidavit of Support?
A: In most cases, yes. As long as the initial application was made prior to December 19, 1997, the applicant will, in most cases, be subject to previously existing public charge provisions and will not be required to submit an I-864. Should a new immigrant visa
application, form I-230, be required after December 19, 1997, however (for example if
more than 12 months have passed since the original interview), then the new provisions
will apply and the petitioner must provide an I-864.
Q: Can an applicant who needs an affidavit of support but is applying for a
nonimmigrant or immigrant visa in other than one of the categories specified in the
new provisions (Section 213A of the Immigration and Nationality Act (INA) of 1952,
as amended) use the I-864?
A: No. Section 213A limits use of the I-864 to the specified immigrant visa cases. All
other applicants that might require an affidavit of support should use Form I-134.
Q: Do persons who are in immigrant visa categories that do not require the I-864
affidavit of support need to conform with the income and documentary
requirements of the new public charge provisions?
A: No. Those applicants whose visa categories do not require the I-864 will continue to
be adjudicated under previously existing public charge guidelines.
Q: Should K-1 Fiance visa applicants use the I-864 or the I-134?
A: Since fiances are technically nonimmigrant visa applicants, they should use the I-134. They will have to submit an I-864 to INS at the time of adjustment of status in the United States, however.
Q: Should Diversity Visa (DV) or Returning Resident (SB) applicants use the I-864
or the I-134?
A. They should use the I-134. The I-864 can only be used in the specified categories
(most family-based and certain employment-based cases). All other cases must use the
I-134 if an affidavit of support is needed.
Q: Do the new income requirements apply to all immigrant visa applicants even if
they use the I-134?
A: No. The 125 percent minimum income requirement, the need for the last three years
income tax returns, etc. only apply to those cases in which an I-864 is required. All other
cases will be adjudicated on the basis of previously existing guidance and procedures.
Q: How is household size determined for the purposes of the I-864?
A: Household size is defined in the Regulation as:
All relatives by blood, marriage or adoption residing in the sponsor's household;
All dependents listed on the most recent tax return, whether or not they reside in the
Any individuals for whom the sponsor has signed an I-864 and for whom the contractual
obligation still exists;
The beneficiary (principal applicant);
The beneficiary's accompanying dependents.
Q: Can a petitioner with limited financial resources sponsor only the principal
alien and not his/her spouse and eligible children?
A: Yes. The petitioner can limit the number of sponsored immigrants listed on affidavit
of support to the number of people who actually intend to immigrate at that time. The
principal applicant must be one of the sponsored immigrants, however. By limiting the
number of sponsored individuals, the petitioner would reduce the household size and
thereby face a lower minimum income requirement. The petitioner would still be able to
file another affidavit of support on behalf of the principal applicant's eligible dependents at
a later date when the petitioner and the principal applicant have improved their financial
situation. When the petitioner files a new affidavit of support for the remaining eligible
family members, the principal applicant, and any of his/her family members who may have
already immigrated, would be included in the household for that I-864.
Q: How do you count children of a divorced couple who reside with one parent part
of the time and with the other parent the other part?
A: A divorced parent's dependent children are members of his or her household, even if
they live part of the time with the other former spouse. A parent always has a legal
obligation to support his or her children. Alathough, only one of the parents may be
legally entitled to claim the child as a dependent on the tax return, the child must be
considered as part of both parents' households for purposes of the affidavit of support
unless a parent can show that he or she has been relieved of any legal obligation to support
Signatures on I-864 and I-864A must be notarized.
Q: Who can notarize the signatures?
A: Signatures on I-864 and I-864A can only be notarized by a U.S. Immigration and
Naturalization Service Officer, a U.S. consular officer or a U.S. notary public. Forms that
have been notarized by a foreign notary public cannot be accepted by the consular officer.
Q: Will the State Department ever excuse the lack of filing of tax returns for the
previous three years, other than when the sponsor was not obligated to file during a
A: No. There is a statutory requirement that the sponsor must submit tax returns for
each of the three years immediately prior to the visa interview in which he or she was
obligated to file. Note that Americans and legal permanent residents who are working
abroad are required by IRS to file a return even if most or all of their overseas income is
excluded from U.S. taxes.
Q: How can a sponsor who was obligated to file tax returns, but failed to do so,
qualify as a sponsor?
A: A sponsor may file a late or amended tax return to IRS. He or she can then submit
copies of the late or amended return(s) for the year(s) in which he or she was obligated to
file. Until such time as the late or amended return has been filed, the I-864 will be
Q: If the sponsor owns a business, should he/she submit individual or business tax
A: Individual returns. Consular officers can only accept individual tax returns, since it is the individual and not the business who is sponsoring the applicant(s).
Q: If the sponsor does not have copies of his/her tax returns, can s/he submit a
summary of the returns provided by the Internal Revenue Service (IRS)?
Q: Can a U.S. citizen or legal permanent resident petitioner who is not
domiciled in the United States be a sponsor?
A. No. The law requires that sponsors be domiciled in any of the states of
the United States, the District of Columbia, or any territory or possession of
the United States.
Q: If the petitioner does not have a domicile in the United States, can a
joint sponsor file an I-864?
A: No. The INS Office of General Counsel has determined that
under the act and regulations, a joint sponsor cannot be authorized in cases
where the petitioner cannot be a sponsor by virtue of domicile. The petitioner
must first meet all requirements for being a sponsor (age, domicile, and
citizenship) except those relating to income before there can be a joint
Q: How is domicile determined?
A: Domicile is a complex issue and must be determined on a case by
case basis. To qualify as a sponsor, a petitioner who is residing temporarily
abroad must have a principal residence in the U.S. with the intent to maintain
that residence for the foreseeable future. Legal permanent resident sponsors
must further demonstrate that they have maintained their legal permanent
resident (LPR) status. A U.S. citizen or legal permanent resident spouse or
dependent who has maintained a residence in the U.S. and/or whose
spouse/parent works in one of the categories listed below would also qualify
as a sponsor.
Many U.S. citizens and legal permanent residents reside outside the United
States on a temporary basis, usually for work or family considerations.
Temporary is a relative term and may cover an extended period residing
abroad. Provided the sponsor can establish to the consular officer's
satisfaction that the sponsor left the U.S. for a limited and not indefinite
period of time, intended to maintain a U.S. domicile and has evidence of
continued ties to the U.S., he or she can be considered to be domiciled in the
Note that the INS regulation provides that sponsors who can show that they
had a domicile in the United States, but who are now living temporarily
abroad because of certain types of employment, shall be considered to have
retained their domicile in the United States. The following are the qualifying
types of employment. A sponsor retains his or her domicile if the sponsor is:
- employed by the government of the United States; an American institution
of research recognized as such 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
Or -- authorized to perform the ministerial or priestly functions of a
religious denomination having a bona fide organization within the United
States and is stationed abroad pursuant to that calling;
Or -- engaged solely as a missionary by a religious denomination or by an
interdenominational mission organization having a bona fide organization
within the United States and is stationed abroad pursuant to that calling.
There may be other circumstances in which a sponsor can show that his or
her sojourn abroad is clearly of a temporary nature, so that the sponsor can be
found still to have a domicile in the United States. For example, persons who
are abroad temporarily to study,
or teach, or engage in other activities that do not meet the requirements of
Section 316(b), 317, or 319(b) of the Immigration and Nationality Act (listed
in the preceding paragraph) may nevertheless have a domicile in the United
States if they can satisfy the consular officer that they did not, in fact, give up
their domicile in the United States and establish a domicile abroad.
Q: How can the petitioner establish a domicile?
A: In cases where the sponsor has clearly not maintained a domicile in the
U.S., the question becomes when the sponsor can be deemed to have re-established U.S. residence. To do this, the sponsor must have taken a
credible combination of steps to make the U.S. his immediate principal place
of abode. Such steps might include finding U.S. employment, locating a
place to live, registering children in U.S. schools and other indices of
residence. The sponsor should also have made other arrangements to
relinquish residence in the third country. It is not necessary for the sponsor to
precede the sponsored family members to the U.S. to re-establish residence
and domicile provided that the sponsor has taken the type of concrete steps
outlined above. It is important to note in such cases that a sponsored
immigrant may not enter the United States prior to the sponsor's return to
take up residence. He or she must either travel to the United States with the
sponsor or at some date after the sponsor's entry into the U.S.
Complete documents for each applicant.
Q: Does each accompanying family member need separate documents
if they are traveling with the principal applicant?
A: Each applicant must submit a signed and notarized I-864 from the
petitioner, any joint I-864 that may be required and form(s) I-864A if needed.
Accompanying family members' documents may be copies of the principal
applicant's forms, but all I-864 and I-864A forms must bear original
signatures and notarizations. Only the principal applicant must submit
supporting documentation (tax returns, employment letters, proof of assets,
etc.). This applies only to principal applicants and accompanying dependents
who are applying together for an immigrant visa or adjustment of status.
Family members who may apply for visas and travel together, but for whom
separate visa petitions have been filed, must each submit a complete set of
supporting documentation along with a signed and notarized I-864, any joint
I-864 that may be required and form I-864A if needed.
Q: Can there be separate joint sponsors for separate members of the beneficiary's
A: No. Each joint sponsor must meet the minimum 125 percent income requirement for
the indicated household size which includes: the sponsor; all household members related
by blood, marriage or adoption residing in his or her household; all dependents, including
those not residing in the same household, claimed on the sponsor's most recent income tax
return; any individual(s) for whom the sponsor has filed a separate I-864 which is still in
effect; the principal applicant; and the applicant's accompanying dependents.
Death of sponsor
Q: If the sponsor dies after the principal applicant has immigrated to the United
States but before all qualified family members who are following to join have
immigrated, can they obtain another sponsor?
A: Yes. Any qualified person may serve as the sponsor in such circumstances.
Q: Does the death of a sponsor terminate any obligation to the sponsored
A: Yes. However, the sponsor's estate remains liable for any requests for repayment of
benefits that arose prior to the sponsor's death.
Does the I-864 ever expire?
Q: Does the I-864 have an expiration date after which a new form must be
A: The I-864 must be submitted to either a consular officer or an INS officer within six
months of the sponsor's signature. Otherwise a new form will be required. Once the
form has been submitted and accepted by a consular or INS officer, however, it will not
expire. If the form was submitted within six months of the sponsor's signature, but more
than 12 months pass before the visa is issued, new supporting documents will be required
(the most recent tax return(s), a current employment letter, etc.)
Change in poverty guidelines
Q: If the poverty guidelines change between the time the petitioner signed the I-864 and approval of an immigrant visa, must the petitioner/sponsor submit a new I-864?
A: No. As long as the I-864 was submitted to a consular officer within six months of the
date it was signed and notarized, a new I-864 is not required. However, the
petitioner/sponsor must meet the minimum income requirement based on the poverty
guidelines in effect on the date of visa issuance, not those in effect at the time the form
How to count assets
Q: May the petitioner/sponsor count assets to meet the 125 percent minimum
A: Yes. The sponsor would count his/her income first. If not sufficient s/he may count
personal assets and/or the income and assets of qualifying household members who have
signed an I-864A. If, using all of those sources, the minimum income requirement is met,
the affidavit would be "sufficient." To be counted, 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 indicated household size. Thus for a petitioner/sponsor whose household size is
four and who has an income of $18,000, his/her assets would need to equal at least
$10,310 ($20,062 -- poverty level for a family of four -- minus $18,000 = $2,062, times
five). S/he would also need to present evidence of all mortgages, liens, and liabilities
against the claimed assets.
Assets outside the United States
Q: Will the intending immigrant be able to count significant assets that he or she
owns that are currently outside the United States, such as real estate or personal
A: Yes, but only under the following conditions:
The assets must be readily convertible to cash within 12 months;
The applicant must clearly demonstrate the ability to take the money or assets out of the
country where they are located. Many countries have strict regulations which severely
limit the amount of cash or liquid assets an individual may take or send abroad;
The assets equal at least five times the difference between the sponsor's income and 125
percent of the poverty line for the indicated household size.
Can free housing be counted as income?
Q: Can petitioners/sponsors who receive housing and other tangible benefits in
lieu of salary count those benefits as income?
A: Yes. The sponsor may rely on income that is not subject to taxation (such as a
housing allowance for clergy or military personnel), as well as taxable income. In a given
case, however, the sponsor would bear the burden of proving the nature and the amount
of any income on which he or she relies, but that is not included as wages/salary or other
taxable income. Evidence of such income can be shown through notations on the W-2
Form (such as box 13, for military allowances), Form 1099, or other documents that
substantiate the claimed income.
Can a beneficiary's ongoing income be counted?
Q: Can a visa applicant's steady income, which will continue after his/her obtaining
lawful permanent resident status, be counted with the sponsor's income?
A: Under certain circumstances, yes. In order for the income to be counted, the applicant
must have resided in the sponsor's household for six months prior to the completion of the
Affidavit of Support. The applicant will be required to clearly demonstrate that the
income will continue after his/her taking up residence in the United States.
Offers of employment
Q: Can a credible offer of employment for the visa applicant replace or supplement
an insufficient affidavit of support?
A: No. The new law does not make any provision for the consideration of offers of
employment in lieu of the I-864. Similarly, an offer of employment may not be counted in
reaching the 125 percent minimum income. Such an offer can be taken into account in
assessing the applicant's ability to overcome any public charge grounds of inadmissibility.
Define "armed forces."
Q: Are the Coast Guard and Merchant Marine considered to be members of the
armed forces of the United States and entitled to the computational standard of 100
A: For purposes of 212(a)(4), the Coast Guard is considered to be a part of the armed
forces. Active duty members of the Coast Guard therefore need only meet the 100
percent of the poverty guideline minimum income requirement. Members of the Merchant
Marine must meet the full 125 percent income requirement.
Is a "sufficient" I-864 the only consideration?
Q: Given the contractual nature of the I-864, affidavit of support, and the
prohibition of most federal means-tested public benefits to most aliens for at least
the first five years after their arrival in the U.S., will consular officers need to look
beyond a "sufficient" affidavit of support for other public charge issues?
A: Yes. Section 212(a)(4)(b) lists the factors a consular officer should take into
consideration when making public charge determinations. A Section 213A affidavit of
support, I-864, is only one of the factors to be considered. Consular officers will continue
to consider the totality of the sponsor's and applicant's financial situations to confirm to
the extent possible that the applicant will have adequate financial support and is not likely
to become a public charge.
Don't mail the I-864 to a visa officer, NVC or INS!
Q: How does the petitioner or joint sponsor submit the I-864?
A: The I-864 and all supporting documents (a complete set for the sponsored immigrant
and each accompanying dependent) should be sent directly to the visa applicant, ho
should personally carry the documents to his/her visa interview. Unless you are
specifically requested to do so, please do not mail the forms to the National Visa Center
(NVC), the visa office at the embassy or consulate where the sponsored immigrant(s) will
apply for a visa or to the Immigration and Naturalization Service. Due to serious
workload factors, affidavit of support forms mailed directly to NVC, visa offices or INS
cannot be attached to the applicants' files and will not be returned to the sender.