Q&A: Affidavits of Support

One of the most misunderstood aspects of immigration law is the income requirements for sponsoring a family member, and the affidavit of support that is used to show that the income requirements have been met.

There are two types of affidavits of support. One type, form I-134, is used in cases that do not involve family immigration. One example is where you want to sponsor a friend to visit you on a tourist visa, and you need to prove to the consulate that you will provide for him or her while she is here. There is no absolute minimum income requirement in these cases.

The other type of affidavit of support, form I-864, is used in family immigration cases (as well as certain employment-based immigration cases where a close family member owns a substantial portion of the petitioning employer). There is an absolute minimum income requirement.

The following questions and answers will explain the requirements and details regarding form I-864.

Q.

What are the requirements for the affidavit?

A.

For the affidavit of support to be acceptable to government, the affidavit must be executed as a contract:

in which the sponsor agrees to support the immigrant at an amount not less than 125% of the federal poverty guidelines until either the immigrant becomes a citizen of the U.S. or the immigrant (or the immigrant's spouse or parent) been employed in the U.S. for a minimum of 10 years;

which is legally enforceable against the sponsor by each of the following persons or entities: the immigrant, the federal and the state government, or by another entity which provides means-tested public assistance to the immigrant;

where the sponsor agrees to accept the jurisdiction of any federal or state court.

Q.

Who may be a sponsor?

A.

A sponsor must: (1) be a U.S. citizen or permanent resident; (2) be at least 18 years of age; (3) be domiciled in the U.S.; and (4) be filing a visa petition on behalf of the immigrant or accept liability for the beneficiary together with the petitioner.

Normally, a sponsor must show the ability to maintain an annual income of at least 125% of the federal poverty guidelines. The poverty line increases as household size increases; therefore, the more members in the sponsor's household there are, the higher the sponsor's income must be.

If the sponsor is an active duty member of the U.S. Armed Forces, he or she need demonstrate an income equal to 100% of the federal poverty guidelines.

In order to prove that the sponsor has fulfilled the above requirements, he must either:

Provide certified copies of his federal income tax returns for the past three years and a written statement under oath the copies are certified copies of such returns; or
Provide evidence of significant assets of the immigrant or of the sponsor which are available for the support of the sponsored alien.

Sponsors are obligated to inform both the INS and the state of the immigrant's residence of any change of address within 30 days. Failure to do so could result in a fine of up to $2,000. If the sponsor is aware that the immigrant has received a public benefit, the amount of the fine may be raised to $5,000.

Q.

What if I break my promise I made in the Affidavit of Support?

A.

If a governmental agency receives notice that an immigrant has received a means-tested public benefit, it may request reimbursement from the sponsor. If the sponsor does not respond within 45 days, the agency may bring a court action against the sponsor. The immigrant may also bring an action against the sponsor.

Certain government assistance programs are exempted from the law. These include school lunch programs, child nutrition benefits, emergency medical benefits and non-cash emergency disaster relief.

A statute of limitations applies where the immigrant last received a benefit over 10 years ago.

Q.

Are these requirements and penalties applicable to the first type of affidavit of support you mentioned?

A.
No. These are applicable only to the form I-864 which is used in family immigration cases, and employment immigration cases where the petitioner is a close family member.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.