The Affidavit of Support – Everything You Need To Know

Recently, I’ve been getting a lot of questions about one document that often goes unnoticed in the immigration process – the Affidavit of Support. Because of this recent flood of questions, I’m writing to clear up some questions about it. Make no mistake, the Affidavit of Support is an important document in the immigration process and can be very complex. As always, if you have any questions about the Affidavit of Support or questions about any aspect of your immigration matter. Feel free to contact my office at 616-233-9300.

What is an Affidavit of Support?

An Affidavit of Support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently.  The person who signs the affidavit of support becomes the sponsor of the relative (or other individual) coming to live in the United States.  The sponsor is usually the petitioner of an immigrant petition for a family member.

An Affidavit of Support is a legally enforceable contract; the sponsor’s responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or can be credited with 40 quarters of work (usually 10 years).

Submitting an Affidavit of Support

The following individuals are required by law to submit an Affidavit of Support, completed by the petitioner to obtain an immigrant visa or adjustment of status:

  • All immediate relatives of U.S. citizens (which include parents, spouses, and unmarried children under the age of 21, including orphans) and relatives who qualify for immigration to the United States under one of the family based preferences:
    • First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
    • Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
    • Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
    • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
  • Employment based preference immigrants in cases only when a U.S. citizen or permanent resident relative filed the immigrant visa petition, or such relative has a significant ownership interest (5% or more) in the entity that filed the petition.

Note: An individual listed above does not need to submit an affidavit of support if they can show that they EITHER:

  • Already worked 40 qualifying quarters as defined in Title II of the Social Security Act
  • Can be credited with 40 qualifying quarters as defined in Title II of the Social Security Act
  • Are the child of a U.S. citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under Section 320 of the Immigration and Nationality Act.

The following types of people do not need to file an affidavit of support:

When NOT to Submit an Affidavit of Support

  • An individual who has earned or can be credited with 40 qualifying quarters (credits) of work in the United States
  • An individual who has an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, as a Self-Petitioning Widow or Widower
  • An individual who has an approved Form I-360 as a battered spouse or child
  • Orphans adopted by U.S. citizens abroad if a full and formal adoption takes place before the orphan acquires permanent residence and both adoptive parents have seen the child before or during the adoption.

Affidavit of Support For Fiancé(e), Spouse, or Child as a “K” Nonimmigrant

If your relative is either a “K-1” fiancé(e), a “K-3” spouse, or a “K-2” or “K-4” child of fiancé(e) or spouse, you do not need to submit an affidavit of support at the time you file your Form I-129F petition. Instead, you should submit an Affidavit of Support at the time that your fiancé(e), spouse, or child adjusts status to permanent resident after coming to the United States.

Sponsor for Affidavit of Support

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a permanent resident. You must have a domicile in the United States or a territory or possession of the United States. Usually, this requirement means you must actually live in the United States, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, and that you still have your domicile in the United States.

Section 213A of the INA permits both a “joint sponsor” and a “substitute sponsor” in certain cases.

Joint Sponsor

A joint sponsor is someone who is willing to accept legal responsibility for supporting your family member with you. A joint sponsor must meet all the same requirements as you, except the joint sponsor does not need to be related to the immigrant. The joint sponsor (or the joint sponsor and his or her household) must reach the 125% income requirement alone. You cannot combine your income with that of a joint sponsor to meet the income requirement.

Substitute Sponsor

If the visa petitioner has died after approval of the visa petition but U.S. Citizenship and Immigration Services (USCIS) decides to let the petition continue, a substitute sponsor must file a Form I-864 in place of the deceased visa petitioner. In order to be a “substitute sponsor,” you must be related to the intending immigrant in one of the following ways:

  • Spouse
  • Parent
  • Mother-in-law
  • Father-in-law
  • Sibling
  • Child (if at least 18 years of age)
  • Son
  • Daughter
  • Son-in-law
  • Daughter-in-law
  • Sister-in-law
  • Brother-in-law
  • Grandparent
  • Grandchild
  • Legal guardian of the beneficiary

You must also:

  • Be U.S. citizen or national or a permanent resident
  • Be at least 18 years of age
  • Be domiciled (live) in the United States
  • Meet all of the financial requirements of a sponsor pursuant to INA 213A.

How to File an Affidavit of Support

You, the sponsor, should complete Form I-864 when your relative has been scheduled for an immigrant visa interview with a consular officer overseas or when your relative is about to submit an application for adjustment to permanent resident status with the USCIS or with an Immigration Court in the United States. If you have a joint sponsor, they must also complete Form I-864. If you are using the income of other household members to qualify, then each household member who is accepting legal responsibility for supporting your relative must complete a separate Form I-864A, Contract Between Sponsor and Household Member.

You are required to provide your U.S. federal income tax return for the most recent tax year as well as proof of current employment. If you were not required to file a tax return in any of these years you must provide an explanation. Failure to provide the tax return or evidence establishing that you were not required to file will delay action on your relative’s application for permanent residence. If this information is not provided, this will result in denial of an immigrant visa or adjustment of status.

When you have completed the affidavit of support, compiled the necessary documentation, and had the affidavit notarized in the United States or before a U.S. consular or immigration officer, you should provide this packet of information to your relative to submit with his or her application for permanent resident status. If you are given specific instructions to file your affidavit of support directly with the National Visa Center, you should follow those instructions.

Income Requirements

You also must meet certain income requirements (whether you are a sponsor, a joint sponsor, or a substitute sponsor). You must show that your household income is equal to or higher than 125% of the U.S. poverty level for your household size.  (Your household size includes you, your dependents, any relatives living with you, and the immigrants you are sponsoring.)

If you, the sponsor, are on active duty in the Armed Forces of the United States, and the immigrant you are sponsoring is your spouse or child, your income only needs to equal 100% of the U.S. poverty level for your household size.

To see if you are above the poverty level, see the “Form I-864P“.

If You Can’t Meet the Minimum Income Requirements

If you cannot meet the minimum income requirements using your earned income, you have various options:

  • You may add the cash value of your assets. This includes money in savings accounts, stocks, bonds, and property. To determine the amount of assets required to qualify, subtract your household income from the minimum income requirement (125% of the poverty level for your family size). You must prove the cash value of your assets is worth five times this difference (the amount left over).
    • Exceptions:
      • If the person being sponsored is a spouse, or son/daughter (who is 18 years or older) of a U.S. citizen: The minimum cash value of assets must be three times the difference between the sponsor’s household income and 125% of the federal poverty guide line for the household.
      • If the person being sponsored is an orphan coming to the United States for adoption: The adoptive parents’ assets need to equal or exceed the difference between the household income and 125% of the federal poverty line for the household size.
  • You may count the income and assets of members of your household who are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member. If the relative you are sponsoring meets these criteria you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.
  • You may count the assets of the relatives you are sponsoring.

Responsibilities as a Sponsor

When you sign the affidavit of support, you accept legal responsibility for financially supporting the sponsored immigrant(s) generally until they become U.S. citizens or can be credited with 40 quarters of work. Your obligation also ends if you or the individual sponsored dies or if the individual sponsored ceases to be a permanent resident and departs the United States.

Note: Divorce does NOT end the sponsorship obligation.

If the individual you sponsored receives any “means-tested public benefits,” you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Any joint sponsors or household members whose income is used to meet the minimum income requirements are also legally responsible for financially supporting the sponsored immigrant.

Change of Address

If you change your address after you become a sponsor, you are required by law to notify the USCIS within 30 days by filing Form I-865, Sponsor’s Notice of Change of Address. If you fail to notify the USCIS of your change of address, you may be fined.

Conclusion

I hope that you have found the topic “The Affidavit of Support – Everything you need to know” helpful. I also hope that after reading this that you would seriously consider my office to represent you in your immigration case. Whether you are in Grand Rapids, Michigan or any other state or country, we represent people and businesses around the world. So, if you have any questions or want to set up an initial consultation by phone or in person, please do not hesitate to call me at 616-233-9300 or email me at rfmirque@mirquelaw.com.
And, please – if you like this kind of information, please share it with your friends. Thanks.
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A Quick Lesson on K Visas

American Citizens wishing to bring their foreign spouses to reside within the United States can do it through an Immigrant Visa for a Spouse of a U.S. Citizen (IR-1 or CR-1) or a Non-Immigrant Visa for a Spouse (K-3). Similarly, U.S. citizens can bring their foreign fiancé(e)s to the country to live and get married through a Non-Immigrant Visa for a Foreign Fiancé(e) (K-1).


K1 / K-1 VISA: Non-Immigrant Visa for a Foreign Fiancé(e)


American citizens wishing to bring their foreign fiancé(e)s to get married and to live in the United States must file an (I-129F) Petition for Alien fiancé(e) in the United States. The I-129F petition must be filed with the Department of Homeland Security and U.S. Citizenship and Immigration Services at the USCIS Immigration Field Office in the area of residence. This petition cannot be filed at an embassy, consulate, or U.S. Immigration Office abroad.


IR-1 or CR-1 Visa:
Immigrant Visa for a Spouse of a U.S. Citizen


American citizens can obtain immigrant visas for their spouses by filing a Petition for a Relative Alien (Form I-130) with the Department of Homeland Security and U.S. Citizenship and Immigration Services within the United States at the USCIS Immigration Field Office in the area of residence. Because the petitioner must fill an affidavit of support (Form I-864) that is required for all (IR1) immigration cases, the applicant must have a residence within the U.S. before an immigrant visa can be issued to the spouse.


K3 / K-3 Visa: Non-Immigrant Visa for a Spouse


Spouses of U.S. Citizens, along with the spouse’s children, are eligible to enter the United States and remain in the country to complete their immigration process on non-immigrant visas (K-3 and K-4). K-4 visas are issued to a child only after the parent has obtained a K-3 visa or is in K-3 status. The application for a non-immigrant visa for spouse (K-3) must be filed in the country where the marriage took place, because it is there that the visa must be issued. After the spouse has completed the visa process and obtained the visa, the spouse is able to travel to the U.S. to wait for the immigrant visa case to be processed. This process requires two petitions:


  • Petition for Alien Relative, Form 1-130
  • Petition for Alien Fiancé(e), Form I-129F

    If you have a question about a K visa or any other question regarding an immigration issue, call my office at 616-233-9300 or email me at rfmirque@mirquelaw.com

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