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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How Not To Obtain Permanent Residency

Four Kenyan nationals residing in Houston were sentenced last week for marriage fraud, visa fraud, and conspiracy to commit marriage fraud. According to the evidence at trial, these guys conspired to recruit and pay US citizens to enter into fraudulent marriages for the purpose of receiving lawful permanent resident status. Each of the defendants applied for a student visa to enter the United States. Once in the US, they recruited US citizens to marry. Each recruited citizen was paid $5000 for participation in the sham marriage. One guy who had his application for a student visa denied, recruited a female US citizen to fly to Kenya to conduct a sham wedding ceremony.

The scheme was uncovered after two of the recruited women were detained at the US Passport Office in Houston on suspicion of committing passport fraud. Upon questioning, they admitted they were recruited to travel to Africa to marry the recruiters’ family members.

The moral of the story here – there’s a right way and a wrong way to enter the United States. This is an example of the wrong way. A very, very wrong way. The right way begins with good legal counsel.

If you have questions about obtaining legal status in the United States the right way, call my office at 616-233-9300 or fill out the contact form for a legal status strategy meeting.

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Testimonial from Richard and Jessica

Robert Mirque was the lawyer my wife and I chose to help us through the minefield of immigration into the USA. I have a minor drug-related criminal record, and I was applying for a marriage based Adjustment of Status (I-485), and Employment Authorization Document (I-765), and a Waiver of Grounds of Inadmissibility (I-601).


Robert explained everything to us very thoroughly and was reassuring and knowledgeable throughout. He was there to answer any questions we had, and even visited us at our home on a Sunday, which is almost an hour away from his offices! He also offered to join us when we went for our Adjustment of Status interview with the USCIS, which was a 6-hour round trip and a whole lot of waiting around.

He ensured that we had all our applications filed on time, and that every “i” was dotted and every “t” crossed.

Robert projected a relaxed, confident demeanor from start to finish, and this helped us a great deal with our own confidence levels.

In short, we would not hesitate to recommend the law offices of Robert F. Mirque, Jr. He did a fantastic job for us and he would do the same for you too.

Richard and Jessica W.
__________________________________

It’s always nice to hear from clients like Richard and Jessica. It reminds me of why I’m doing what I’m doing – to help people achieve their dream and to provide them the best possible value for their money.

If you have an immigration need, call my office to schedule an “Immigration Status Strategy Meeting” where we will: 1) discuss your current immigration status; 2) review your immigration goals; and 3) outline and map the ways we can get you there. If you mention that you saw this on my website, I will waive the consultation fee of $315.00. My office telephone number is 616-233-9300.
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I Overstayed My Visa, Can I Apply For A Green Card If I’m Married to a US Citizen?

A foreign national who is married to a United States citizen can apply for a “green card” in the United States provided their last entry into the United States they presented themselves for inspection at a United States port of entry and were legally inspected and then admitted or paroled into the United States.

This provision of the law forgives the fact that the foreign national has not maintained their legal status in the Unted States and forgives any unauthorized employment by the foreign national.

This means that even though you fell out of status, you are eligible to apply for a “green card” because you were legally admitted as an nonimmigrant and you are filing for the green card based on the fact that you are married to a U.S. citizen.

However, this provision of the law does not forgive other grounds of inadmissibility, such as criminal convictions, misrepresentation, or being subject to the unlawful presence bar. So the foreign national must otherwise be eligible for admission as a permanent resident.

If you have questions about applying for your “green card”, please give me a call at 616-233-9300 to schedule an appointment.

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Common Questions Regarding the Marriage Based Adjustment of Status

When a couple comes to my office, I have tried to cover most of the key issues they will face when applying for the marriage based green card. But with a topic as involved and ever changing as this one, there are always questions that couples forget to ask while in my office. I have compiled a list of the most common questions that couples ask me when attempting to file the Marriage based Green Application in the United States. I hope the following Questions and Answers will make your journey through this process a little less confusing.

1. How soon can an applicant that entered the US as a tourist or under the Visa Waiver Program marry a US Citizen? Could they apply for the Green Card while in the United States?


Answer: A US citizen can marry a tourist or VW visitor and apply for the Green Card from within the US. It is better to marry at least 60 days after entry to lift the presumption that the immigrant entered the US in order to get married.


2. How soon after marriage can the US Citizen petition and file the immigration paperwork for the immigrant spouse?


Answer: There is no waiting period that must pass before the immigration petition can be filed. Make sure to have the certified Marriage Certificate registered with the county before you can file.


3. How long will it take to get the work permit after filing the case? How long will it take to get to the final interview after filing?


Answer: Currently it takes 90 days after filing the Marriage based Green Application for the Government to issue the work permit. In some cases the final interview is scheduled even before the Work permit can be issued. In this case, if there is an approval at the interview, there will be no need for the work permit at that time. In most cases though, interviews are scheduled, 5 months or so after filing.


4. What if there is a mistake in your name or date of birth on the Green Card?


Answer: If there is a mistake on your new Green Card you must take steps to correct it immediately. If you fail to do so, you will not be able to receive your social security number and any other documents as a result. You must file form I-90 (get it from USCIS.GOV website) with USCIS. Make sure to Check box d in part 2.2 of the application. There is NO FEE to pay as it was not your fault. You will need to mail the original card to the following address:


National Benefits Center
Attn: I-551 Corrections
705B SE Melody Lane, Box 2000
Lee’s Summit, MO 64063


5. How do you know what taxes to file now that you are a Green Card holder?


Answer: The Internal Revenue Service has several publications you can obtain from a local IRS office or download from www.irs.gov 

Publication 519…..US Tax Guide for Aliens 
Publication 514…..Foreign Tax Credit for Individuals 
Publication 501…..Exemptions, Standard Deduction, and Filing Information 
Publication 54…….Tax Guide for US Citizens and Resident Aliens Abroad

6. How long does a person need to wait after getting the Conditional Green Card before Applying for US Citizenship?


Answer: If the Immigrant is still married to the US Citizen and living together 3 years after getting the Conditional Green, they may apply for Citizenship. If the couple is no longer married and living together, the immigrant must wait 5 years after getting the Conditional Green in order to apply.

If you have questions about marriage-based adjustment of status or questions involving any immigration issue, please call my office at (616) 233-9300 or email me at rfmirque@mirquelaw.com

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