INS Issues Affidavit of Support Instructions

70/23.1

March 7, 2000

AMENDED VERSION

MEMORAMUM FOR:

ALL REGIONAL DIRECTORS

ALL DISTRICT DIRECTORS, INCLUDING OVERSEAS

ALL OFFICERS IN CHARGE; INCLUDING OVERSEAS

ALL SERVICE CENTER DIRECTORS

TRAINING FACILITIES: GLYNCO AND ARTESIA

FROM:

Michael D. Cronin
Acting Associate Commissioner
Office of Programs

SUBJECT: Clarification of Service policy concerning I-864 affidavit of support

This memorandum reiterates and clarifies Service policy in several areas related to the I-864 Affidavit of Support under Section 213A of the Act. These issues have recently been raised by officers and the public.

ADJUSTMENT APPLICANTS WHO DO NOT NEED TO FILE FORM I-864

The following groups of aliens do not need to file Form I-864 when applying for adjustment of Status:

Diversity immigrants

Special immigrants

Employment based immigrants other than those who have been petitioned for by a relative or who have are a relative that owns 5% or more of the petitioning company

Self-petitioning immigrants

Refugees and asylees adjusting status

Registrants under section 249 of the INA

SUFFICIENCY OF I-964 AT FILING

The affidavit of support becomes enforceable at the time the alien adjusts status or enters the United States with an immigrant visa. Thus, for INS purposes, the sponsor must be qualified (the I-864 must be sufficient) at the time adjustment of status is approved, not at the time the Form I-485 is filed.

Because of the lengthy processing time of adjustment cases, applicants will often need to bring updated documents to the adjustment interview. In order to ease this problem, local offices may set individual policy regarding whether Form I-864 should be submitted at the time of filing for adjustment or at the time of the adjustment interview. If the office chooses to request the Form I-864 at the time of filing for adjustment such office may accept a signed Form I-864 that does not meet requirements. In this type of situation, additional or updated documentation proving eligibility must be submitted at the interview.

SPONSOR USE OF BENEFITS

Question 4B of the I-864 asks if the sponsor or any member of his or her household has used means tested benefits during the past 3 years. Do not disqualify a sponsor based on a positive response to this question. The reason for this question is to ensure that the value of any such means-tested public benefits is not considered as income on the affidavit of support. Means­-tested benefits currently include only SSI, TANF/AFDC, Medicaid, Children's Health Insurance Program (CHIP), and Food Stamps. Earned benefits such as Social Security retirement, Unemployment Compensation, and Workman's Compensation may be included as income.

U.S. CITIZEN CHILDREN

Any U.S. citizen children of the intending immigrant should not be listed in part 3 of the I-864. The affidavit of support places no obligation on a sponsor or joint sponsor to support any U.S. citizen children of the sponsored immigrant. Such U.S. citizen children should only be included in household size if they are actually resident in the sponsor's or joint sponsor's household.

USE OF SPOUSE'S INCOME

A sponsor's spouse who qualifies as a household member and wishes to have his or her income included as a household member needs to complete a Form I-864A. However, if the spouse does not wish to use his or her income or to complete Form I-864A, that is acceptable. In this situation, the sponsor needs to show his or her own income and which portion of any assets used to qualify can be attributed to him or her.

In some situations the sponsor's spouse qualifies as a household member and is also the intending immigrant being sponsored. Since a sponsored immigrant cannot agree to support himself or herself, he or she should not complete an I-864A. However, if there are children listed on the affidavit of support, then the spouse must complete an I-864A, indicating a willingness to support these children.

USE OF SPONSORED IMMIGRANT'S INCOME

A sponsored immigrant's income may be used toward meeting the income requirement if he or she has been living in the sponsor's residence for at least the previous 6 months. If the residence condition has been met at the time of the interview, then the sponsored immigrant's income can be used as part of the sponsor's household income. The sponsored immigrant does not need to complete a Form I-864A provided that he or she is the only person included on the affidavit of support. The sponsored immigrant needs to complete Form I-864A, however, if he or she is using his or her income to qualify and has an accompanying spouse or children included on the affidavit of support.

USE OF SPONSORED IMMIGRANT'S ASSETS

By law, a sponsor may always include the net value of the sponsored immigrant's assets toward meeting the income requirement if the sponsor does not meet the income requirement using his or her own income and/or assets. Part 5 of Form I-864 indicates that the sponsored immigrant lists his or her assets on a separate sheet of paper using the same format shown under Part 4F for the sponsor's assets. The sponsored immigrant must provide documentation showing the net value of all assets in the same manner required of the sponsor.

The net value of the sponsored immigrant's assets may be added to any assets documented for the sponsor. The total net value of assets must be five times the difference between the sponsor's household income and the required qualifying income for the sponsor's household size.

The sponsored immigrant does not need to complete Form I-864A if he or she is using his or her assets to qualify.

DOCUMENTATION - FEDERAL TAX RETURNS

By law, all petitioning and joint sponsors must submit copies of their three most recent Federal tax returns as well as all W-2s. Copies of any Forms 1099 that reflect income used to qualify must also be submitted, State tax returns are not required; if submitted they must be returned.

Generally after April 15, a sponsor can be expected to have completed the Federal tax return for the previous year. If an extension was requested the sponsor should provide proof of filing for the extension. If a sponsor did not file tax returns, he or she must prove that there was no obligation to file. Note that U.S. citizens generally have an obligation to file Federal tax returns on non-U.S. earnings, even if there was no tax liability.

If a sponsor should have filed, they must file retroactively and provide proof of filing. Note that U.S. citizens employed abroad must file U.S. tax returns on foreign earnings, even if they have no tax liability.

Offices should encourage submission of IRS transcripts of tax returns in place of photocopies of tax returns. Photocopies of Forms W-2 and 1099 must still be submitted. Tax transcripts provide proof that the returns were filed with IRS, are easier to read, take up less room in the file, and are easily obtained. The most desirable way to obtain these documents is to order them, free of charge, by sending IRS Form 4506 to IRS. (It is also possible to get transcripts by phone or by going to a local IRS office in person, but the transcripts obtained through these means are somewhat less desirable.)

DOCUMENTATION - JOB LETTERS AND PROOF OF INCOME

Letters from all current employers must be submitted with the I-864. These letters should show dates of employment, the nature of the job, wages or salary earned, number of hours/weeks worked, and prospects for future employment and advancement. It is this current employment income that should generally be used to determine whether a sponsor meets the income requirements for Form I-864.

Copies of current pay stubs or statements covering at least the past 6 months should also be provided. If cumulative pay covering a 6-month period is shown on a single pay stub, that would normally be sufficient.

DOCUMENTATION - HOUSEHOLD MEMBERS

The sponsor may use the income of any household member who is at least 18 years old to meet the income requirement. The household member must complete Form I-864A and provide complete documentation. Documentation includes the 3 most recent Federal tax returns/transcripts, job letters and pay stubs, and documentation of assets if used.

USE OF POVERTY GUIDELINES

HHS publishes new poverty guidelines in the Federal Register in February or March each year. These guidelines become effective for INS purposes on the first day of the first full month following their release. For example, in 1999, new poverty guidelines were published in the Federal Register on March 18, and became effective for INS purposes on May 1, 1999. The poverty guidelines for each year remain in effect during the next year until the effective date of the new guidelines.

The poverty guidelines that are in effect on the date of adjustment of status govern the amount of income required to meet the income requirements for the affidavit of support.

UPDATING INFORMATION AT TIME OF INTERVIEW

Joint Sponsor Needed. If the petitioning sponsor cannot qualify at the time of the interview, a joint sponsor is needed. There still must be a signed I-864 from the petitioner accompanied by his or her three most recent Federal tax returns (or proof that there was no obligation to file) and any proof of employment.

Joint Sponsor No Longer Needed. If the petitioning sponsor qualifies at the time of interview then there can be no joint sponsor. If any additional I-864s from joint sponsors are included in the record they must be removed from the file and returned to the intending immigrant. It is very important that all unneeded I-864s are removed from the file so there is no confusion about who is legally responsible for the immigrant and any deeming or enforcement actions.

Need for Updated Documents. If the interview or adjudication takes place one year or more after the sponsor signed the affidavit of support, and the sponsor had submitted all the necessary documents at the time of filing, the officer may request updated documentation in order to establish that the sponsor currently meets the income requirements. However, a new affidavit of support is not required. In such a situation, even if the adjudication takes place a considerable length of time after the affidavit of support was signed, it is usually not necessary to require tax returns for the entire period subsequent to the three submitted at time of filing. A copy/transcript of the most recent Federal tax return and/or proof of current employment (and value of assets if needed to qualify) should usually be sufficient.

OFFICER'S COMPLETION OF "AGENCY USE ONLY" BOX

In adjustment cases adjudicated by the Service, the officer who completes the case must complete the "Agency Use Only" box on the first page of the I-864. If the petitioner sponsor does not qualify, the officer should check the box "Does not meet." In order for the applicant to be approved, there must be in the file another I-864 that meets the requirements from a joint sponsor. In such a case, the officer must check the box "Meets", then sign, date, and note the office code for location.

In cases adjudicated by an Immigration Judge (I.J.) where the I.J. did not complete the Agency Use Only box, the officer who completes the processing of the case after the I.J.'s decision will complete the box on the INS copy of the I-864 by checking either the "Meets" or the "Does not meet" box. The officer must then add a notation, "Adjustment application approved (or denied) by U.S. Immigration Court at (place) on (date)." The officer will then sign, date, and note the office code for location.