Monthly Archives: April 2016

Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

The Form I-864, Affidavit of Support, is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most family-based and some employment-based immigrant visa or adjustment cases. Failure to meet the I-864 requirements may cause the U.S. Consulate or USCIS to determine you will likely become a “public charge,” i.e. become primarily dependent on the U.S. government for subsistence. This ground of inadmissibility bars you from receiving an immigrant visa or green card.

The petitioner who filed the immigrant petition on your behalf must also be your sponsor who files a Form I-864 to support your immigrant visa or adjustment application. When the petitioner does not earn enough income to sponsor you, there are alternatives to meeting the financial requirement.

What income requirement must the sponsor meet? 

To qualify as a sponsor, most petitioners must show their current annual household income is at least 125% of the federal poverty level for their household size.

Sponsors who are on active duty in the U.S. Armed Forces, including the Army, Marines, Navy, Air Force, or Coast Guard, and are sponsoring a spouse or minor child, only need to earn an income of 100% of the federal poverty level for their household size. (This exception does not apply to joint or substitute sponsors).

The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.

The household size includes:

  • the sponsor
  • the sponsor’s spouse (even if they are separated or live separately)
  • the sponsor’s unmarried children under 21 (regardless of where they live)
  • any person listed as a dependent on the sponsor’s last tax return
  • the intending (sponsored) immigrant
  • any derivative beneficiaries (i.e. those without a separate I-130 petition being filed on their behalf) who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant)
  • any immigrants previously sponsored with Form I-864 (or Form I-864 EZ), Affidavit of Support.

What are the alternatives if the sponsor does not earn enough income? 

There are situations in which the petitioner does not earn enough income to sponsor the immigrant. Examples include retired U.S. citizen parents,  U.S. citizen spouses who are still attending school and do not work full time, and petitioners with large household sizes.

When the petitioner does not qualify financially as a sponsor, there are other ways to meet the financial requirement for permanent residence and avoid a public charge determination.

1. The Sponsor May Get a Joint Sponsor to File a Separate Form I-864

A joint sponsor may submit a separate Form I-864, Affidavit of Support, when the sponsor does not earn sufficient income. A joint sponsor does not have to be related to the sponsor or the intending immigrant. But like the sponsor, the joint sponsor must:

  • Be a U.S. citizen or national or a permanent resident.
  • Be at least 18 years old.
  • Be domiciled (live) in the United States or a territory or possession.  (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status).
  • Meet all of the financial requirements.

Joint sponsors must meet the income threshold for their household size, independently. They cannot combine their income with the sponsor’s or another joint sponsor’s income to satisfy the requirement.

Intending immigrants are allowed only one joint sponsor. In family-based preference category cases including a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.

2. The Sponsor May Use the Intending Immigrant’s Income to Overcome the Income Shortage (in Limited Cases)

The sponsor may include the income from the intending immigrant, if that income will continue from the same source after immigration. The intending immigrant must also currently reside with the sponsor, unless he or she is sponsor’s spouse.

The sponsored immigrant whose income is being used to meet the income requirement does not need to submit a Form I-864A, Contract Between Sponsor and Household Member, unless a spouse and/or children is immigrating with the sponsored immigrant. In this instance, the I-864A relates to support for the spouse and/or children.

3. The Sponsor May Include Income from Certain Relatives or Dependents

Sponsors may include income from U.S. citizen or permanent resident relatives (spouse, adult child, parent, or sibling) living in their household, or U.S. citizen or permanent resident dependents claimed in their most recent federal income tax return (regardless of where they live). The relative or dependent must also earn income that meets the federal poverty level for their household size.

The relative or dependent must submit a Form I-864A, Contract Between Sponsor and Household Member, agreeing to be jointly responsible for the sponsored immigrant. They must also be at least 18 years old when they sign the I-864A.

4. The Sponsor May Supplement Income With Assets

To supplement income, the sponsor may use the value of assets that can be converted into cash within one year and without considerable hardship or financial loss to the owner. Examples are money in a bank account, stocks or bonds, the net value of a second automobile, and the net value of a home or other real estate.

The assets used must be owned by (1) the sponsor, (2) the sponsor’s U.S. citizen or permanent resident relative (spouse, adult child, parent, or sibling) who resides with the sponsor and submits a Form I-864A , Contract Between Sponsor and Household Member, or (3) the intending immigrant (regardless of where he or she lives).

The value of the assets must be at least five times the difference between the sponsor’s total household income and the current federal poverty guideline for his or her household size. The exception is when a U.S.  citizen is sponsoring a spouse or minor child.  In that case, the assets must total at least three times the difference.

The sponsor must include evidence of the value of the assets used, such as a bank account record showing the  money has been on deposit for the last 12 months, and real estate appraisals with evidence of the sum of all loans secured by a mortgage, trust deed, or any other lien on the property.

USCIS or the NVC May Issue a Request for Evidence on the I-864 Requirement

U.S. Citizenship & Immigration Services (USCIS), which adjudicates I-485, adjustment to permanent residence applications, may issue a Request for Evidence when it determines the I-864 is deficient. Currently, the National Benefits Center (NBC) — usually through contract employees – do the initial screening of the I-864 based on a checklist.

The National Visa Center (NVC), which processes immigrant visa applications before they are forwarded to the U.S. Consulate abroad, may also issue RFEs concerning the I-864.

When an RFE is issued, USCIS and the NVC stops processing the case. Interim benefits, such as employment authorization and advance parole for I-485 applicants, are also delayed until an RFE response is submitted.

If the NBC determines  the response is inadequate, it will not forward the case to the USCIS Field Office for adjudication and will deny the I-485 due to failure to provide an adequate response. Similarly, the NVC may refuse to forward the immigrant visa case to the U.S. Consulate if it determines the RFE response is insufficient.

At the adjustment interview, USCIS may ask for current evidence that the financial requirement is met. The U.S. Consulate may also ask for additional financial evidence at the immigrant visa interview.  Nevertheless, the proper submission of required forms and documents and timely, full responses to RFEs permit the case to move forward.

Can an RFE Be Issued in Error? 

RFEs are issued for a variety of legitimate reasons, such as lack of evidence of the sponsor’s current income, missing federal tax return and W2s for the most recent tax year, and mistakes in filling out the I-864. But some RFEs are issued in error, such as when USCIS or the NVC overlooks evidence that the income requirement is met.

An RFE can be issued in error when the sponsor’s Current Individual Annual Income  meets the income requirement, but the total income for the most recent tax year is less than the federal poverty level for the household size. Such RFEs ask for evidence of assets or a separate I-864 from a joint sponsor to overcome the perceived income shortage.

The regulations and USCIS policy, however, state that the sponsor’s current annual income – not income on the federal tax return for the most recent tax year – is what really counts. Current income refers to the total earnings the sponsor expects to earn from the start to the end of the calendar year.  Income includes both taxable and nontaxable income, such as certain federal or state benefits (e.g. social security retirement or disability), as well as unemployment or workers compensation.

The sponsor should submit evidence of current income (e.g. pay statements for the last six months and current letter of employment), even though this is not required initial evidence.

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For more information, read our related article, Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.

Consult an immigration attorney to help you meet the financial requirements for permanent residence and avoid a public charge determination. The best time to speak with an attorney is before you file for the immigrant visa or for adjustment, not after you receive an RFE.

A good attorney can evaluate whether the sponsor meets the income requirements and, if he or she does not, recommend alternatives to make up for the shortfall.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Form I-864: Key to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

Section 212(a)(4) of the Immigration and Nationality Act (INA) prohibits you from receiving an immigrant visa or adjusting to permanent residence if you are likely, at any time, to become a public charge. To show you are not inadmissible on this ground, a Form I-864, Affidavit of Support, filed on your behalf is required in most family-based and some employment-based immigrant visa or adjustment cases.

What Factors are Considered When Determining Whether A Person is Likely to Become a Public Charge? 

“Public charge” means you are likely to become primarily dependent on the U.S. government for subsistence, either through receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

Totality of the Circumstances

U.S. Consulates and USCIS consider certain factors, including your age, health, family status, assets, resources, financial status, education and skills. The officer weighs the positive and negative factors and examines the “totality of the circumstances” when making a public charge determination.

Receipt of Cash Benefits

If you have received certainly publicly funded benefits, the officer takes this into account. The types of cash benefits received that could lead the officer to find you will become a public charge include:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program) (Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge)
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution). (Note: costs of incarceration for prison are not considered for public charge determinations)

Receiving cash assistance for income maintenance and institutionalization for long-term care (e.g nursing home) at government expense is also considered, but in the context of the totality of the circumstances.

Public benefits that one family  member receives are not attributed to other family members, unless the cash benefits amount to the sole support of the family.

This list is not exhaustive. The officer will consider receipt of any cash benefits not listed above by examining the totality of the circumstances. A public charge determination, however, cannot be based solely on previous (or current) receipt of public benefits.

Non-cash or special-purpose cash benefits are generally not taken into account as they are usually supplemental and do not make you primarily dependent on the government for subsistence. Examples are:

  • Medicaid and other health insurance and health services, other than support for long-term institutional care
  • Children’s Health Insurance Program (CHIP)
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
  • Job training programs
  • Transportation vouchers
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
  • State and local programs that serve similar purposes as the federal programs listed above (e.g. “Medi-Cal” in California).
  • Federal, state, or local programs in which benefits are paid in-kind, by voucher or by any means other than cash

In addition, cash payments that have been earned, such as Social Security benefits, old age survivors disability insurance (OASDI), government pensions, and veterans’ benefits, are not considered. Unemployment compensation is also not taken into account for public charge purposes.

Form I-864, Affidavit of Support

By itself, the absence or insufficiency of an affidavit of support — when required by the law governing certain immigration benefits, such as most family-based immigrant visa and adjustment applications —  can lead the officer to find you are likely to become a public charge.

When is a Form I-864, Affidavit of Support, Required? 

The Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are unlikely to rely on the U.S. government for subsistence.

Normally, you must submit a Form I-864, Affidavit of Support, completed by the petitioner to support your immigrant visa or adjustment of status application if you fall in of any of these categories:

  • Immediate relatives (parents, spouses, and unmarried children under the age of 21, including orphans) of U.S. citizens
  • Relatives who qualify for immigration 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 when a U.S. citizen or permanent resident relative (spouse, parent, child, adult son or daughter, brother or sister) filed the immigrant visa petition, or the relative has a significant ownership interest (5% or more) in the entity that filed the petition.

You do not need to submit an I-864, even if you fall in any of the above categories, if you can show you:

  • 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, as amended by the Child Citizenship Act of 2000.

What is the Form I-864, Affidavit of Support, and Who Submits It? 

The I-864 serves to prove you have the financial means to live in the U.S. without needing welfare or financial benefits from the U.S. government.

The U.S. citizen or permanent resident who filed the immigrant petition for you must be the sponsor who signs and submits the I-864 on your behalf. Sponsors are also required to file federal income tax returns for the three most recent years (if required by  law) and submit their last year’s tax returns with the I-864, regardless of their income level. In some situations, a joint sponsor or substitute sponsor is required and allowed.

The I-864 is a legally enforceable contract with the U.S. Government in which the sponsor, joint sponsor or substitute sponsor agrees to support the immigrant at a minimum annual income level. In the contract, they also agree to reimburse any federal or state agency that provides a means-tested benefit to the immigrant.

The sponsored immigrant may sue a sponsor, joint sponsor or substitute sponsor to enforce the contract to provide financial support. If the immigrant ever receives a means-tested benefit, the agency that provided it can also seek reimbursement from the sponsor, joint sponsor or substitute sponsor.

The contractual obligations under the I-864 begins when the immigrant visa or green card is granted. The affidavit of support may be withdrawn only before permanent residence is granted.

The contractual obligations continue until the sponsored immigrant becomes a U.S. citizen, or can be credited with 40 qualifying quarters of work (generally 10 years of work) in the United States. The sponsor, joint sponsor and substitute sponsor’s obligations also end if they or the sponsored immigrant dies or if the sponsored immigrant ceases to be a lawful permanent resident.

What are the Basic I-864 Requirements?

A sponsor, joint sponsor, and substitute sponsor must:

  • Be a U.S. citizen or national or a permanent resident.
  • Be at least 18 years old.
  • Be domiciled (live) in the United States or a territory or possession.  (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status)
  • Meet all of the financial requirements

Sponsor

Normally, sponsors must show their current annual household income is at least 125% of the federal poverty level for their household size.

The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.

The household size includes the sponsor, the sponsor’s spouse (even if they are separated or live separately), the sponsor’s unmarried children under 21 (regardless of where they live), any person listed as a dependent on the last tax return, the intending immigrant, and any derivative beneficiaries who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant).

Joint sponsor

When sponsors do not earn at least 125% of the poverty guideline for their household size, they have alternatives to meet the minimum income requirement. The most common way is to submit a separate Form I-864 from a joint sponsor who meets the income requirement independently.

A joint sponsor must meet all the same requirements as the sponsor, except the joint sponsor does not have to be related to the immigrant.

Each immigrant visa or adjustment applicant may have only one joint sponsor. In in family-based preference category cases involving a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.

Lawsuits against joint sponsors to enforce the I-864  do not usually arise unless there is a dissolution of marriage between the sponsor and immigrant or the sponsor is completely unable or unwilling to support the immigrant.

Substitute sponsor

If the petitioner (sponsor) dies after approval of the visa petition, and USCIS agrees to allow the immigrant visa or adjustment process to continue, a substitute sponsor must file a separate Form I-864.

In addition to meeting the same requirements as the sponsor, substitute sponsors 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

Substitute sponsors exist only when the sponsor has died. As such, lawsuits to enforce the I-864 against substitute sponsors arise only in the event of a sponsor’s death.

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For more information, read our related article, Form I-864: Alternatives to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.

The proper filing of a Form I-864 is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most immigrant visa or adjustment cases. The I-864 instructions can be confusing and do not always provide answers to questions you have about the public charge issue.

The Form I-864EZ is a shorter version of the Form I-864 and is used only if three conditions are met: (1) The sponsor is the person who filed or is filing a Form I-130, Petition for Alien Relative, for the sponsored immigrant; (2). The sponsored immigrant is the only person listed on the Form I-130; and (3) The income being used to qualify is based entirely on the sponsor’s salary or pension and is shown on one or more Internal Revenue Service (IRS) Form W-2s provided by employers or former employers.

Consult an immigration attorney to receive full guidance on the financial aspects of becoming a permanent resident or sponsoring an immigrant. While immigration attorneys offer dual representation to both the petitioner (sponsor) and intending immigrant, many will not provide advice to joint sponsors and other third parties whose income is being used, due to a potential conflict of interest.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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