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.

Household Size Q: How is household size determined for the purposes of the I-864?

A: Household size is defined in the Regulation as:

The sponsor;

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 sponsor's household;

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 the child.

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.

Tax Returns 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 given year?

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 considered incomplete.

Q: If the sponsor owns a business, should he/she submit individual or business tax returns?

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)?

A: Yes.

Domicile 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 sponsor.

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 U.S.

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 statute;

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.

Joint sponsors Q: Can there be separate joint sponsors for separate members of the beneficiary's family?

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 immigrant(s)?

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 completed?

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 was signed.

How to count assets Q: May the petitioner/sponsor count assets to meet the 125 percent minimum income requirement?

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 property?

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 percent?

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.