DOS Cable on I-864s in Employment Cases

STATE 207503

SUBJECT:

I-864 AND EMPLOYMENT-BASED IMMIGRANT VISAS A)98 STATE 112510, B)98 STATE 133504

1. Department would like to remind posts of the

circumstances under which an I-864 Affidavit of Support

may be requested in employment-based immigrant visa (IV)

cases, as it has come to the Department's attention that

some posts may be incorrectly requiring the I-864.

2. Under INA 213A and applicable INS regulations, an I-864

is needed for applicants for employment-based immigrant

visas only if a relative filed the IV petition or has a 5

percent or greater ownership interest in the business that

filed the petition. These are the only two circumstances

in which an I-864 is required in an employment-based case

(reftel A, para 4).

3. Section 213A of the INA limits use of the I-864 to the

specified IV cases. Consular officers are therefore

prohibited from requesting, or accepting, I-864s in any

visa cases where an I-864 is not required by statute,

including employment-based IV case other than those noted

in para 2. If a visa applicant is not subject to the I-

864 requirement (e.g., regular employment-based IVS, DVs,

Ks), but the consular officer believes that an affidavit

of support is needed to satisfy INA 212(a)(4), the

consular officer should request submission of an I-134,

not an I-864.

4. Where an I-864 is required, the sponsor must submit

individual tax returns, even in the limited class of

employment-based IV cases where the sponsor must file an

I-864. The I-864 sponsor must be an individual and not an

entity such as a business (reftel B, para 10).

ALBRIGHT

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End Cable Text

11/08/2000