Form I-864 issues 101 – Materials for NW conference, Amer. Immigration Lawyers Association

I prepared this material for a presentation this week at the Northwest Regional Conference for the American Immigration Lawyers’ Association. I don’t find it very helpful when speakers put this much detail in slides, so I thought it would make more sense to share it as a post here. Hopefully others find it useful as well.Thanks to Ali Schneider for facilitating the panel.

Other resources.

For starters, please refer to the following, detailed resources for topics we discuss at the start of the presentation.

• Who is a sponsor? Who counts as household members? What is “income”? Written materials from August 2016 webinar.
• What are the sponsor’s legal obligations? Blog post.
• Should I represent the petitioner, beneficiary and a joint sponsor? [No]. Journal article arguing against such joint representation. 
• Can I really get sued? [Yes]. Four journal articles on I-864 enforcement.
• For more on the Affidavit of Support, visit our firm’s I-864 page, here.

Hypo Q&A.

Here are answers and points of authority for the hypothetical we discuss in the second have of the presentation.

Understanding the I-864W.

The Petitioner is a US citizen and the Beneficiary is an adult married child of Petitioner now eligible to adjust status. Her spouse is a derivative. The Beneficiary has worked for over 10 years with the same social security number that her father got for her in 1993.

When assessing “qualifying quarters” for I-864 sponsorship, you should be looking to the Social Security Administration (SSA) for guidance. It is the SSA, not USCIS, that has detailed guidance for what counts as a “qualifying quarter” and under what circumstances a quarter can be credited from another individual. Those rules are set out in the Program Operations Manual System (POMS), the public version of which is here. A good discussion on qualifying quarters in the immigration context can be found in the POMS here.

To obtain an earnings and benefits statement from SSA, clients may complete Form SSA-7004, Request for Social Security Statement.

1 – Can Beneficiary qualify for the I-864W using her own work history?

Yes. The instructions to the I-864W say only that you need to have been: “[w]orking in the United States for 40 quarters in which you received the minimum income established by the Social Security Administration.” There is no requirement that the earnings be credited to a lawfully obtained Social Security Number/Card.

2 – Can Beneficiary qualify for the I-864W if her father has 40 qualifying quarters?

Probably yes. The instructions are clear that you can “have” a qualifying quarter, “[b]y being credited under section 213(a)(3)(B) of the Immigration and Nationality Act (INA) with quarters worked by your spouse during the marriage or a parent during the time you were under 18 years of age.” The POMS tell us that, “[a]n LAPR alien of any age can be credited with QQs earned by a parent through the quarter the LAPR alien attains age 18, whether or not the parent(s) is currently living.” The SSA gives the following example (note that LAPR is the same as what we refer to as LPR):

An LAPR alien couple and their two LAPR alien children (one age 12 and the other age 23) all apply for SSI. Each member of the couple has earned 20 QQs for work done more than 5 years earlier, before the older child turned age 18. All four LAPR aliens meet the 40 QQs eligibility category based on the couple’s combined 40 QQs.

3 – Can Beneficiary’s spouse also use the I-864W? If they have been married for 5 years? If they have been married for 10 years?

The general rule is that a current spouse’s qualifying quarters can be credited. In the case of 5 years of marriage, this will work only if the derivative beneficiary has also been working and has his own 20 quarters to “stack” on top of the primary beneficiary/spouse. In the case of 10 years of marriage, yes, the primary beneficiary’s qualifying quarters will be enough.

What counts as income?

For more material on what qualifies as “income” for purpose of I-864 sponsorship, see these materials, which were prepared with HEather Poole and Ann Robertson for national a couple years ago.

Petitioner is a US citizen, and Beneficiary is their spouse, who has DACA. Petitioner is not employed, and Beneficiary is. They live with Petitioner’s US citizen mother.

1 – Can Beneficiary’s income be included on the I-864?

Absolutely. Income can be counted it it is from, “lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status.” 8 CFR § 213a.1.

2 – If the Beneficiary received a raise, and previously did not have sufficient income, but does now, will that work for the I-864?

By default, income is judged based on prior year’s tax returns: “total unadjusted income” for a sponsor who filed with a Form 1040 return; for a sponsor who reported income on a Form 1040EZ, however, total adjusted gross income is used. 9 FAM 40.41 N6.7. If there is an upwards deviation from that, it needs to be proven with pay stubs. As a rule of thumb, I advise clients that I want to see a 6-month track record of the new position.

3- If Petitioner’s mother is employed, can they include her income?

Yes. U.S. Mom is the (a) parent of the petitioner and (b) resides with the petition. So she is a household member who can sign an I-864A to make her income available.

4 – What different types of income can be included?

Assets? Assets are not income under the regs and treated completely differently. They can be used to make up a shortfall by showing 3x (IR marriage) or 5x (other cases) the shortfall. So for IR marriage case, $10k shortfall needs $30k in assets.

Bonuses? Again, by default, income level is based on last year’s reported taxable income (see above). If a sponsor is expecting a new bonus, that will put her over the income threshold, that could potentially be counted. But the question is whether it is a standard part of her new, regular compensation, rather than a one-off bonus that she will not receive again.

SS income? SS disability income? Yes – as explained here.

Self-employed? Yes, but the devil can be in proving how much compensation your client is actually receiving. Single owner sole proprietors often have complicated accounting that leaves them with little taxable income at the end of the year. It is common for an attorney to collaborate with the sponsor’s accountant to document an accurate picture of what sort of financial resources the sponsor is actually drawing from her business.

Joint sponsors.

US citizen Petitioner and Beneficiary spouse do not have sufficient income. They find someone to be a joint sponsor.

1 – Can you combine the joint sponsor’s income with the Petitioner’s income?

No.

2 – Does the Petitioner still have to fill out an I-864?

Yes. The petitioner is a family-based matter is always a mandatory sponsor unless a condition of the I-864W is met.

3 – What are the potential conflicts with different types of sponsors?

For a thorough discussion of this ethics issue – and the view that representation of petitioner, beneficiary and joint sponsor is ethically fraught, see my article, co-authored with Gustavo Cueva.