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The Affidavit of Support: Do I need it?

Posted on November 7, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have already worked in the United States for some time. Does my sponsor still need to submit the affidavit of support?

Answer: Under INA §212(a)(4)(C), an alien who seeks permanent residence as an immediate relative or as a family preference immigrant is inadmissible as an alien likely to become a public charge, unless the visa petitioner submits an affidavit of support (INS Form I-864) that meets the requirements of §213A. This requirement also applies to employment-based immigrants, if a relative either filed the Form I-140, or has a significant ownership interest in the firm that did file the Form I-140. Section 213A(a)(3)(A), however, provides that the obligations under a Form I-864 terminate once the sponsored alien has worked, or can be credited with, 40 qualifying quarters of coverage, as defined under title II of the Social Security Act. The affidavit of support regulation reflects this provision.

Question: Assuming that I can show that I have worked 40 qualifying quarters, is an affidavit of support still required if, at the time I seek permanent residence through admission or adjustment of status, I am able to show that I have already has worked, or can be credited with, 40 qualifying quarters of coverage?

Answer: The policy of the Service is that an affidavit of support is not required if, at the time you seek permanent residence through admission or adjustment of status, you can show that you have already worked, or can be credited with, 40 qualifying quarters of coverage.

The basis for this policy is that it represents the most reasonable interpretation of this requirement. The obligations under the Form I-864 come into force when the sponsored alien acquires permanent residence. But if, at that time, the sponsored alien already has worked, or can be credited with, 40 qualifying quarters of coverage, then the obligation will expire at the very moment that it begins. Requiring the affidavit of support in this situation, therefore, would serve no purpose.

Question: What if my parent has qualifying quarters of work, but I don’t. Is there anything that can be done?

Answer: INA §213A(a)(3)(B), specifies how an you can be credited with qualifying quarters worked by someone else. If you can claim qualifying quarters worked by a parent, you may claim all the qualifying quarters worked by the parent before the your eighteenth birthday. Note that the statute does not require the parent-child relationship to have existed when the parent works the qualifying quarters. So you can claim even those of the parent’s qualifying quarters that the parent worked before your birth or adoption. You can also claim qualifying quarters worked by a spouse. However, you may only claim those quarters that the spouse worked during the marriage. It must also be the case either you are still married to the person who worked the qualifying quarters, or that that person is dead.

Question: What if I received public assistance?

Answer: You may not claim any qualifying quarter of coverage worked after December 31, 1996, if the person you worked that qualifying quarter – whether it was you, a spouse or a parent, if you have received any Federal means-tested benefit during the same period.

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Filed under: Form I-864 | Tagged: , , , , | Leave a comment »

New Affidavit of Support Requirements.

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I heard that there are new requirements for the affidavit of support requirements. Can you let me know what they are?

Answer: A person completing an Affidavit of Support (Form I-864) on behalf of an adjustment of status applicant is now only required to file one Federal income tax return, for the tax year that is most recent as of the date the Form I-864 was signed, rather than having to submit a Federal income tax return for each of the three most recent tax years.

Question: Can you clarify exactly what year you must now submit the tax returns?

Answer: For any Form I-485 filed on or after the date of this memorandum, the sponsor shall not be required to file any Federal income tax return for any year other than the tax year immediately preceding the sponsor’s signing of the Form I-864. For example, if the sponsor signed the Form I-864 after April 15, 2005, only the sponsor’s 2004 Federal income tax return would be required. However, the sponsor may file the three most recent returns if the sponsor believes that the additional returns will make it more likely that the Form I-864 will be found to be sufficient. This rule shall apply to petitioning sponsors, as well as substitute or joint sponsors signing a Form I-864 for an adjustment case.

Question: How does the officer determine the sufficiency of the I-864?

Answer: USCIS officers shall, as a general rule, determine the sufficiency of a Form I-864 based upon whether evidence shows that the annual income at the applicable threshold set forth in the Form I-864P, Poverty Guidelines, from the calendar year in which the Form I-864 was filed. Accordingly, adjudicators will determine whether the current income listed on Form I-864 is at least 125% (or 100% as applicable) of the governing threshold set forth in the Poverty Guidelines. Adjudicators will also determine whether the sponsor’s total income (line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 1040A), or adjusted gross income for those who filed IRS Form I040EZ (line 4 of the 2004IRS Form I040EZ), meets the Poverty Guidelines threshold. The adjudicator should request additional evidence (i.e., employment letter(s), pay stub(s), or other financial data) only if the tax return reflects income below the Form I-864P, Poverty Guidelines and the record does not already contain additional evidence that would establish the sponsor meets the current income requirements. The adjudicator should also request additional evidence (i.e., employment letter(s), pay stub(s), or other financial data) if there is a specific reason (other than the passage of time) to question the veracity of the income stated on Form I-864 or the accompanying document(s).

If the officer determines that the tax return and/or the evidence in the file do not establish that the sponsor meets the government Form I-864P, Poverty Guidelines threshold, the adjudicator shall request current year income information, not additional information from the year the sponsor signed Form I-864. In this situation, the sufficiency of the Form I-864 is determined based upon the additional evidence as it relates to the applicable threshold set forth in the Form I-864P from current year rather than the Form I-864P, Poverty Guidelines from the calendar year in which the Form I-864 was signed.

Question: Can each immigration office have a different policy than stated above?

Answer: Previously USCIS has permitted each local office to establish its own policy on whether to require submission of Form I-864 at the time of filing for adjustment or at the time of the adjustment interview. Effective as of now, all applicants are required to submit Form I-864 with their adjustment application.

Filed under: Affidavit of Support, Immigrant Visa, Immigration, Immigration Law, USCIS | Tagged: , | Leave a comment »

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