Affidavit of Support Requirement?

Of the many requirements for immigrating to the United States, the affidavit of support is perhaps the most misunderstood and overlooked, yet how it is prepared can make the difference. Submission of a properly executed affidavit of support is a must for many individuals wishing to legally reside in the U.S. An affidavit of support is a document signed by a sponsor in front of a notary on behalf of intending immigrants (and some non-immigrants). The purpose of the affidavit of support is to overcome the government’s view that certain classes of aliens, such as the elderly and unskilled, are likely to become public charges. A public charge is a person who relies solely on the government for financial support. The two most common types of affidavits are the Forms I-864, which is signed on behalf of intending immigrants, and the Form I-134, which is often submitted in cases where an I-864 is not required by law, but where an individual must prove to the U.S. government that he or she will not become a public charge, as is the case with students.

A “sponsor” is a person who is either eligible to sign or has signed an affidavit of support on behalf of the beneficiary of a visa. A sponsor must be a U.S. citizen or lawful permanent resident, at least eighteen years of age, domiciled in the U.S. or one of its territories or possessions, and must demonstrate an ability to support the sponsored beneficiaries. “Domiciled in the U.S.”means that the sponsor has a principal, permanent residence in the U.S., even if the sponsor is temporarily living abroad. Any person who has filed an immigrant visa petition must execute an I-864 in order for the visa beneficiary to enter the U.S. No affidavit is required for special immigrants, such as refugees, battered women, and diversity immigrants (lottery winners). For employment-based immigrants, an I-864 is only required if a relative filed the visa petition or if a relative owns a significant ownership interest in the entity that petitioned the immigrant.

In order to demonstrate an ability to support the sponsored immigrant, the sponsor must show the means to maintain an annual income of at least 125% of the Federal Poverty line (100% for certain active duty members of the U.S. military). The required amount is based on the number of people in the sponsor’s household. The sponsor’s federal tax returns and proof of employment are used in order to determine if the guideline is met. Disability benefits and social security payments may be counted as income, but not SSI payments. If the sponsor’s income does not meet the guidelines, the sponsor may submit evidence of significant assets, such as savings accounts or real estate. The income of certain individuals related to and living with the sponsor can be used to help the sponsor meet the required amount. Any other individual who meets the requirements for being a sponsor may also execute an affidavit of support as a joint sponsor, but a joint sponsor’s income must meet the required amount; it cannot be combined with the principal sponsor’s income in order to meet the required amount.

Submission of an affidavit of support creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored individual, and of any entity that administers public benefits, such as a state or local government. Many benefits are exempt and need not be reimbursed by a sponsor, including emergency medical care, Medicaid, and Food Stamps. The sponsored immigrant (beneficiary) and/or the agency that provides any non-exempt benefits to the beneficiary after he or she comes to the U.S. may legally force the sponsor to pay for the benefits received. For example, should a beneficiary collect General Assistance (cash benefits) from the County of San Francisco, both the County and the beneficiary could sue the sponsor in order to reimburse the County for payments made to the beneficiary. Any joint sponsors will be as liable as the principal sponsor. The sponsor’s support obligation is terminated when the sponsored immigrant becomes a citizen of the U.S., has obtained 40 qualifying quarters of work, ceases to be a lawful permanent resident and leaves the U.S., or dies (or if the sponsor dies). Fortunately, most immigrants are hard-working individuals, meaning that these contracts are seldom enforced. In fact, an informal poll of several immigration attorneys in San Francisco found no instances where the sponsor’s obligation was enforced.

An experienced and competent immigration attorney will be able to clearly explain the affidavit of support and its requirements. More importantly, he or she will be able to help identify any potential sponsors, as well as to demystify the affidavit requirement to sponsors who may not understand why they need to sign yet more papers for you. If your case has progressed to where it is time to submit an affidavit of support, you are well on your way to your new life in the United States. To lose such an opportunity simply because of a faulty or missing affidavit of support is unnecessary and completely avoidable with proper representation.