DOS Affidavit of Support Q&As
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BUJUMBURA
AMEMBASSY SARAJEVO
AMEMBASSY PARAMARIBO
INFO CIA WASHDC 0000
NSA FT GEORGE G MEADE MD
DIDIR USINS WASHDC
UNCLAS STATE 235260
VISAS INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS, CMGT
Subject: I-864 Affidavit of Support Update No. 2 - Q’s and A’s
Ref: (A) State 228862 (B) State 211673 (C) State 7103
Summary
1. This is the second in a series of cables regarding the I-864 Affidavit of Support and related regulations. Following are responses to questions from posts, AILA, and fellow consular officers. Although this cable is in a question and answer format, a number of policy and procedural issues are addressed in the text and should be reviewed by all IV line officers and FSN’s. End summary.
Is a "Sufficient" I-864 the Only Consideration?
2. 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. In addition, although the Welfare Act does severely limit aliens access to most Federal means tested public benefits during the alien’s first five years in the United States, individual states are able to identify which of their programs will be considered means-tested for the purposes of the Act. Thus, there may still be significant State and/or local benefits available to recently arrived immigrants. The contractual nature of the I-864 notwithstanding, officers will continue to consider the totality of the sponsor’s and applicant’s financial situation to confirm to the extent possible that the applicant will have adequate financial support and is not likely to become a public charge.
Who Needs an I-864 and Who Doesn’t
3. Q: Is an applicant who made his or her first application prior to December 19, but was denied under 221(g) and does not qualify for a visa until December 19 or sometime thereafter, exempt from the requirement for an I-864 affidavit of support?
A: No. Any visa in the specified categories that is issued on or after December 19, must have an I-864 in order for the beneficiary to qualify for admission at the port of entry.
4. Q: Can an applicant who needs an affidavit of support but is applying for an NIV or an IV in other than one of the categories specified in section 213A use the I-864?
A: No. INS has determined that section 213A limits use of the I-864 to the specified IV cases (see REFTEL B). All other cases that might require an affidavit of support should use the I-134.
5. Q: Do persons who are in immigrant categories not requiring the 213A affidavit of support (I-864) need to conform with the income and documentary requirements of the new law if they are requested to present an affidavit of support (I-134)?
A: No. Those applicants whose visa categories do not require the I-864 will continue to be adjudicated under previously existing public charge guidelines.
6. Q: Should K-1 applicants use the I-864 or the I-134?
A: INS has concluded that since they are technically NIV applicants, they should use the I-134. They will have to submit an I-864 to INS at the time of adjustment of status, however.
7. Q: Should 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 is needed.
8. 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 should be adjudicated on the basis of previously existing guidance and procedures.
Household Size
9: Q: How do officers establish household size for the purposes of section 213A?
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); and
The beneficiary’s accompanying dependents.
10. 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. Even though 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’ household 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.
11. Q: What action should the interviewing officer take if it appears that the petitioner/sponsor has underreported his or her household size in the affidavit of support?
A: If a discrepancy is discovered relative to the family unit size for computation of this 125 percent minimum income, it would automatically raise questions about the credibility of the affidavit of support, and collaterally raise the question of whether the applicant(s) qualify under 212(a)(4)(C)(11). The interviewing officer would be justified in such cases in refusing the visa under 221(g) until otherwise satisfied that a properly executed I-864 has been presented. If the petitioner/sponsor presents a correct I-864 and credible and verifiable documents which indicate the ability to adequately support the applicant and his or her accompanying dependents, and if the applicant is otherwise eligible, a visa should be issued. If the petitioner’s corrected I-864 is insufficient, a credible and verifiable I-864 from a joint sponsor would generally allow the applicant to qualify under section 214(a)(4). If the petitioner/sponsor fails to present a credible and verifiable I-864 and supporting documents that indicate ability to adequately support the applicant and his/her dependents, the applicant should be found ineligible under 212(a)(4). In addition to the 212(a)(4) finding, a 212(a)(6)(C)(1) finding could be supported in some cases, but only if the misrepresentation was willful and material. In other words, post has to determine that a) the applicant was in fact aware of the misrepresentation being made on his/her behalf, and that b) the applicant was in fact unable to overcome the 212(a)(4) finding, and therefore was ineligible based on the true facts.
Domicile
12. A number of posts have asked questions regarding the definition of domicile and how it will affect cases where American petitioners reside abroad. Domicile is a complicated issue and will be addressed SEPTEL.
Complete Supporting Documents for Each Applicant
13. Q: Does each accompanying family member need a separately signed I-864 (or more if there are joint sponsors) and all supporting documents to be included in the visa packet if they are traveling with the principal applicant?
A: Yes. INS requires that each visa applicant’s visa packet include a notarized I-864 from the petitioner, any joint I-864 that may be required, notarized I-864As if required, and all accompanying supporting documentation (three most recent years tax returns, employment letter, proof of assets and liabilities, if assets are used to meet the 125 percent requirement). The accompanying family members’ documents may be copies of the forms, but must bear original signatures and notarizations. New guidance on the packaging of immigrant visas and the significantly greater volume of accompanying documentation is being sent SEPTEL.
Requirement for Tax Returns is Not Debatable
14. 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. 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 must file a return even if most or all of their overseas income is excluded from tax.
To Annotate or Not to Annotate - A Serious Question
15. Q: Should an officer or FSN mark or make pertinent annotations on the affidavit of support?
A: No. This is a legally binding document. Officers should refrain from adding information or making annotations on the form once the petitioner has signed it and it has been notarized. Appropriate notes may be attached to the form on a separate page as long as it is clear that they were made by the interviewing officer.
16. Q: If the petitioner is asked to submit additional proof of income or assets, should the officer annotate the I-864 to reflect the new information?
A: No. The officer should make a brief initialed and dated annotation on a separate page to reflect the addition of new supporting documentation to the affidavit of support, noting whether the new submissions make the affidavit "sufficient."
Packing the Issued Visa - An Overflow of Documents
17. Q: Do the affidavit of support and supporting documents need to be included in the issued visa packet?
A: Yes. The affidavit of support and all supporting documents including tax returns, employment letters and proof of assets (if assets are needed to meet the minimum income requirement) must be enclosed in the issued visa packet. INS will retain that documentation in the applicant’s permanent INS file.
Joint Sponsors
18. Q: Why would there be more than one joint sponsor?
A: If the petitioner (or sponsor in the case of employment-based cases where a relative might either be the sponsor or have an ownership interest in the petitioning entity) meets the 125 percent minimum income requirement a joint sponsor would generally not be authorized unless a consular or INS officer requests it. (For example: the petitioner/sponsor meets the 125 percent requirement but does not appear to have the resources to meet medical expenses that are indicated by the medical report at the time of interview. In such cases, credible affidavits from one or more joint sponsors might overcome the 212(a)(4) ineligibility.) If the petitioner/sponsor does not meet the 125 percent requirement, joint sponsors may submit additional affidavits of support to help overcome the 212(a)(4) ineligibility. Section 213A does not limit the number of joint sponsors.
19. 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 affidavit; 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 affiant’s most recent income tax return; any individual(s) for whom the affiant has filed a separate I-864 which is still in effect; the principal applicant; and the applicant’s accompanying dependents.
Death of Sponsor
20. Q: If the sponsor dies before all the beneficiary’s family members who are following to join have immigrated, can they obtain another sponsor?
A: Yes. There is no limitation in the regulations on who may serve as the sponsor.
21. Q: Does the death of a sponsor terminate any obligation to the sponsored immigrants(s)?
A: No. The sponsor’s estate remains liable for any support or requests for repayment of benefits that arose prior to the sponsor’s death.
Effect of Sponsor’s Bankruptcy
22. Q: Are the sponsor’s legal liabilities under the I-864 dischargeable in bankruptcy?
A: This issue, if it arises, must be addressed by the bankruptcy court that has jurisdiction of an actual case.
Change in Poverty Guidelines
23. Q: If the poverty guidelines change between the time the petitioner signed it 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 approval, not those in effect at the time the form was signed. Also, if more than 12 months have expired since the form was signed, the sponsor should submit currently supporting documentation, such as the most recent income tax return (if one has been filed or required in the interim), a new employment letter, etc.
How to Count Assets
24: Q: If the petitioner/sponsor must count assets to meet the 125 percent minimum income requirement, is it considered a sufficient affidavit of support?
A: Yes. The petitioner would count his/her own income first. If not sufficient he/she may count 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 count assets, they 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 dollars (20,062 - poverty level for a family of four - minus 18,000, times five). He/she would also need to present evidence of all mortgages, liens, and liabilities against the claimed assets.
Assets Outside the United States
25. 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?
26. 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 Form W-2 (such as Box 13, for military allowances), Form 1099, or other documents that substantiate the claimed income.
Offers of Employment
27. 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 prevision 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. While it cannot replace or supplement an insufficient I-864, an employment officer would be useful in certain cases with sufficient I-864s, however. For example, if the petitioner/sponsor’s income barely meets the 125 percent requirement, but the sponsor does not appear to have the means to offer full support to the applicant, the applicant’s ability to support him or herself and accompanying dependents would be a positive factor and would generally allow for issuance of the visa. Conversely, an applicant with the same sponsor, but who does not appear able to support him or herself, would not quality for a visa under 212(a)(4) absent a verifiable affidavit of support from one or more credible joint sponsors.
Define "Armed Forces"
28. 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.
221(g) or 212(a)(4)?
29. Q: When should applicants be denied under 221(g) and when under 212(a)(4)?
A: Officers should use discretion in making this determination. If the applicant appears to be able to provide additional documentation or an affidavit from a joint sponsor which would demonstrate adequate financial support, a 221(g) refusal would be appropriate. If it does not appear that the sponsor will be readily able to meet the income requirement or enlist a qualified joint sponsor, a finding of 212(a)(4) should be made. Further guidance will follow via SEPTEL.
Overcome Appointment System - Managing the Workload
30. Q: Given the anticipated increase in 221(g) and 214(a)(4) refusals and commensurate increase in workload, may IV units limit the number of times an applicant may appear to attempt to overcome a public charge refusal? For example can posts put a limit of 1 or 2 applications per month on such applicants?
A: No. Posts are not authorized to impose limits on the number of times applicants may reapply in such cases. However, posts use an appointment system for re-applications. Many posts already find it useful and/or necessary to limit the number of re-applications on any given interview day. By using an appointment system on re-interviews, posts should also attempt to distribute fairly the appointment slots so that all applicants have an equitable opportunity to reapply. Thus, an applicant who was denied a visa yesterday would go to the end of the waiting list for re- interviews and would be scheduled for another interview only after the applicants already in the pipeline. Consular officers must ensure that visa numbers are available for any previously refused cases which are subsequently approved.
No Fee for Notarizing/Witnessing Signature on I-864
31. Q: Should a fee be charged for witnessing the signature of a petitioner, joint sponsor or household member on the I-864 or I-864A?
A: No. Neither INS nor State will charge a notarial fee for this service.
Role on Non-IV Posts
32. Q: Should non-IV posts have supplies of the new form on hand and provide information and guidance regarding the new form?
A: Posts may provide forms and information at their discretion. However, in most cases, it would be more appropriate and the inquirer would be better served to refer him or her either to NVC or to the IV post that will conduct the IV interview. As is now the case with all other IV forms, IV posts will have the forms on hand, can mail them where ever necessary and will be well-versed in responding to the standard inquiry. All posts should, of course, be prepared to notarize a petitioner’s or joint sponsor’s signature on the I-864 at no charge as long as he or she appears in person to sign the form. Posts that wish to obtain copies of the form should contact CA/VO/F/P.
33. Minimized considered.
Pickering