A version of this article first appeared in the Side Bar journal for the Litigation…
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This Guide has been prepared for the purpose of providing general instructions for completing the Form I-864, Affidavit of Support. By using this Guide you agree that no attorney-client relationship exists between you and Sound Immigration nor any of its attorneys. This Guide is made available at no cost and may be distributed at will, but may not be altered without advance written permission from the author.
Remember that immigration law is extremely complex. It is strongly suggested that an individual consult with an attorney prior to signing the Form I-864. This Guide is no substitute for individual legal advice.
I. What is the Form I-864, Affidavit of Support?
U.S. immigration law is an invitation-based system. For someone wishing to move permanently to the country there is no general “line” to get in. Rather, the path to permanent residency (a “green card”) usually begins with a U.S. business or individual petitioning for the foreign national – think of this as a type of invitation from the U.S. entity or individual to the foreign national.
Any foreign national wishing to enter the U.S. is screened through a long list of grounds of inadmissibility. These range from crime-related grounds to health-related grounds. A long-standing ground of inadmissibility bars an individual likely to become a “public charge” – that is, likely to be a drain on public resources. This determination is made either by a consular officer at the time of a visa interview, or at the time the individual applies within the U.S. to become a permanent resident. A variety of factors are considered in the public charge determination. Since 1996, however, immigration petitioners have been required to promise financial support to certain classes of foreign nationals.
The Form I-864, Affidavit of Support is an immigration form submitted by the U.S. immigration petitioner, guaranteeing to provide financial support to a foreign national beneficiary. The form is required to ensure the immigrant does not become a “public charge.” The I-864 is required in all cases where a U.S. citizen or permanent resident has filed an immigration petition for a foreign family member including for a spouse.
In addition to the primary sponsor (i.e., the immigration petitioner) an additional individual may be asked to file a Form I-864. Where the sponsor is unable to demonstrate adequate financial wherewithal, an additional “joint-sponsor” may be used to meet the required level. To qualify as a joint sponsor, the individual needs to be an adult U.S. citizen or lawful permanent resident currently living in the United States. Joint sponsors typically are – but are not required to be – family or close friends of the primary sponsor. A joint sponsor signs a separate Form I-864, indicating herself as a joint rather than primary sponsor.
I.1 What are the consequences of signing the Form I-864?
The I-864 is a binding legal contract between you and the United States government. By signing the document you make two distinct promises. First, you promise to ensure that the intending immigrant has income at a level equivalent to 125% of the federal poverty guidelines. A table showing that income level is available on the Form I-864P, which may be found at http://www.uscis.gov/i-864p. Note that the levels are slightly higher for individuals residing in Alaska or Hawaii. The guidelines are adjusted each year.
Second, you promise to repay the government for the cost of any “federally funded, means-tested public benefits” paid to the intending immigrant. These include such programs as Medicaid and TANF (cash assistance), but does not include general medical care, such as emergency room visits.
If you elect to sign the I-864 you are required to update the U.S. government of any address change. Within 30 days of changing address you must file an I-865 form, available for download at http://www.uscis.gov/i-865.
Regarding the first promise, if the intending immigrant’s income level falls below the required level, you are responsible for providing support to make up the difference. The intending immigrant has the legal ability to sue you in court if you do not maintain support. If there are multiple I-864 sponsors the intending immigrant has the ability to sue any one or all of these sponsors. Take this liability very seriously. I-864 sponsors have been successfully sued many times across the country.
Regarding the second promise, if the intending immigrant receives public benefits you can be sued by a government agency for the cost of those benefits. Generally it is uncommon for agencies to take this step. However agencies do have the legal ability to take this step if they choose to.
In the event you are sued by the intending immigrant or by the government, you would be responsible for paying the costs of the lawsuit and for the attorney fees incurred by the intending immigrant.
You receive no legal benefit by signing the I-864. Many people sign joint sponsor I-864s to assist their friends and family with immigration, and most of these individuals will never suffer financially for having done so. Intending immigrants frequently get joint sponsor I-864s from their friends and family. But you need to weigh your desire to help with the very real financial obligations of executing this document.
I.2 How long do the responsibilities last?
Your obligations continue until the first of these five events occur: the intending immigrant
- becomes a U.S. citizen;
- can be credited with 40 quarters of work;
- is no longer a permanent resident and has departed the U.S.;
- after being ordered removed seeks permanent residency based on a different I-864; or
The intending immigrant’s divorce from the petitioner does not end a sponsor’s obligations. It is conceivable that no terminating event would ever occur, so it is possible that your obligations could last for the duration of the immigrant’s life. The intending immigrant can choose to seek citizenship in as little as three years, but immigrants are not required to become citizens if they choose not to.
II. Terms explained.
Here are some terms that you’ll encounter when completing the Form I-864.
- The person who initiated the process of bringing the immigrant to the United States by filing a Form I-130 petition. This will generally be someone filing for a husband/wife or other family member.
- This refers to anyone who is signing Form I-864 to “sponsor” an immigrant. There are both primary sponsors and joint/co-sponsors.
- Joint-sponsor/co-sponsor. These two terms may be used interchangeably. If the petitioner doesn’t have sufficient income to sponsor the immigrant, then an additional sponsor will be needed to provide the required support. The additional sponsor has the same legal support duties as the petitioner with regard to sponsoring the immigrant.
- Primary sponsor. The petitioner is required to file a Form I-864, even if he/she doesn’t meet the required income level. In this capacity, the petitioner is sometimes referred to as the primary sponsor.
- Primary vs. derivative immigrant. It is common for more than one family member to immigrate at the same time, as happens when an immigrant parent comes with children. In these scenario, the primary immigrant refers to the parent, who will have been the first individual named on the immigration petition; the children will be derivatives with respect to the process.
III. Step-by-Step Instructions.
- Typing versus hand writing. It is a good idea to complete the form on a computer so that you can later make changes if needed. For a P.C. Adobe Acrobat reader may be downloaded for free at https://get.adobe.com/reader/. It is permissible to hand-write the form, but you will need to completely re-write the form.
- The form must have an original ink signature. Sign with a black pen and press down firmly so that it is clear the signature is original. The immigration service used to reject signatures in blue ink, though they have stopped doing so in recent years.
- Extra space. If you need extra space to answer any item use Part 11 “Additional Information” to write your answer. If this is not enough space, you may attach an additional piece of paper (label it “I-864 Addendum Page”). Make sure to reference the Page, Part and Item Number that you are referring to.
III.1 Part 1 – Basis for Filing Affidavit of Support
Part 1 identifies what your relation is to this immigration case. If you are the petitioner you answer 1.a. If you have been required to be a joint sponsor, in most circumstances you will give answer 1.d, that you are the “only joint sponsor.” The only time you would give another answer (answer 1.e) is if there are more than one individuals immigrating at the same time. For example, there could be more than one joint sponsor if a mother is immigrating with her two children (called derivatives).
III.2 Part 2 – Information About the Principal Immigrant
Part 2 asks for information about the Principal Immigrant. This is the primary immigrant in the immigration case. Again, if a mother was immigrating with children, the mother would be the Principal immigrant
Alien Registration Number. This number refers to a identification number issued by the immigration authorities. You will need to check with the individual to see if she has an alien number.
USCIS ELIS number. This refers to an online filing system that is currently available for only limited types of immigration applications. In most circumstances the Principal Immigrant will not have an ELIS number. Note that the ELIS number is not the same as the Alien Registration Number.
III.3 Part 3 – Information About the Immigrants you are Sponsoring
In Part 3 you state which individual or individuals you are choosing to sponsor. You may have been requested to sponsor only the Principal Immigrant, or you may have been requested to sponsor additional individuals immigrating with the Principal Immigrant.
In most circumstances you will answer “yes” to question 1. You would answer “no” only if there were two or more Joint Sponsors, and you were not sponsoring the Principal Immigrant.
Your answer to question 2 depends on whether there are additional immigrants who you have been asked to sponsor. Check with the Principal Immigrant to see who you are being asked to sponsor.
III.4 Part 4 – Information about you (Sponsor)
Part 4 asks for basic information about you, and is mostly self-explanatory. Your country of domicile means the country where you maintain a residence and plan to live for the foreseeable future. If you have been asked to complete this Form you almost certainly live in the United States.
III.5 Part 5 – Sponsor’s Household Size
To determine if your income is sufficient to serve as sponsor, the immigration service has to know your legal household size. There are technical rules about who counts as your household member. When completing this section you count a person only once.
Line 7 refers to non-dependent relatives who are living with you. These could include your:
- Brother/sister; or
- Adult (over age 21) children.
The only reason to include these individuals is if you want to count their income for purposes of this form. If so, they will need to complete and additional form called the Form I-864A.
III.6 Part 6 – Sponsor’s Employment and Income
This is an extremely important section of the Form. Most problems with the Form I-864 come from incorrect answers on this section.
Household versus individual income. This section asks you to report both your individual income (item 2) and your current household income (item 15). Your “Household income” means your income as reported on your most recent IRS tax return. If you filed a Form 1040 return you must report your total income; if you filed a Form 1040EZ you report your adjusted gross income. This distinction is extremely important!
Your individual income will be different from your household income if you filed joint tax returns with a. If you did, then you will need to isolate which of the reported income was yours versus the souse. To do this, refer to your W-2 from the most recent tax years, along with any Forms 1099 or Schedules showing your income.
It is extremely important that the numbers in this Part add up correctly. Household Income must equal the sum of the individual income reported for each household member. For household with complex income, it will be easiest to ask your accountant to provide a statement showing the breakdown of income between household members.
What if your income went up or down since the last time you filed federal tax returns? If you income has changed since the last time you filed taxes then you will need to report your new income level. Please note that if you do this you will need to provide 6 months of paystubs to validate the newly claimed income. It is also a good idea to provide an original, signed letter from your employer stating your date of hire and current salary. This poses a substantial extra burden for you. If your most recent reported income was above the required level, it will be far easier to simply report that number. The immigration service defines “income” as what was reported on the most recent returns.
Self-employment. The I-864 can get very complicated for someone who is self-employed. For a sponsor without W-2 income, she/he will have the task of carefully documenting the sources of income in a way that can be understood by the immigration services. Here are things you may wish to consider providing in the case of self-employment. Note that these are in addition to the income tax documentation, which is required in call cases:
- Profit/loss statement. This is a helpful way to show the immigration service that the self-employed sponsor is making money.
- Bank statements. 12 months of bank statements for the business. If the sponsor has been using a personal bank account for business income/expenses then it is critical to provide separate accounting of business cash flow.
- Federal business tax returns. If the sponsor files a Schedule C with her/his personal income tax returns this should be provided, along with any other schedules and/or 1099s showing income.
Non-taxable income. Non-taxable income may be used to meet the required financial support amount, such as the following scenarios. Be careful to provide documentation of these benefits, since by definition they will not be accounted for in your reported “total income” on tax returns.
- Social Security earnings.
- Investment earnings.
- Legal settlements.
- Inherited funds.
- Life insurance proceeds.
- Disability insurance and disability compensation.
- Unemployment insurance. Note that this is problematic, as the immigration service may have concerns about the longevity of such benefits, which are limited in duration.
III.7 Part 7 – Use of Assets to Supplement Income (Optional)
You need to complete this section of the form only if your reported income in Part 6 was less than 125% of the Federal Poverty Guidelines for your household size. Here are those Guidelines for 2015 (they are adjusted each year):
125% of the Federal Poverty Guidelines (2015)
|Each extra member||$ 5,200||$ 433||$100|
How much is needed? If your income was not at or above the required level, then you may use financial assets to make up the difference. How much is required? Follow these steps to find out:
- Find the difference between actual income and required Let’s assume that you have a reported household size of 3. Using the chart above, we see the required annual income level is $25,113. Let’s assume your annual income is $20,000. That leaves a difference of $5,113 between your actual income and the required income.
- Identify your relation to the immigrant being sponsored. The amount of required assets will depend on your relation to the person who is immigrating. For most immigrants, you will need to demonstrate assets that are five times the difference you identified in step one. But if the person being sponsored is your husband/wife or minor child, then you have to show only three times the difference. Also, in certain circumstances involving an immigrant orphan the assets need to be only one times the difference in step one (these cases are rare).
- Multiply the amount in step one by the factor identified in step 2. Let’s assume you are sponsoring someone to whom you are not related. This is the most common scenario. In that case you will need to show financial assets five times the difference you identified in step 1. In step 1, we found a $5,113 difference between the actual income and required income. 5 x $5,113 = $25,565. So this means you will need to report financial assets that are valued at $25,565 or greater.
What assets may be used? The rule for assets is that they must be “available in the United States for the applicant’s support and must be readily convertible to cash within one year.” What does this mean? That you are allowed to count an asset only if you can sell it, and have the resulting cash in the U.S., within 12 months. So obviously the ideal assets would be money in a U.S. bank account, since that’s U.S. cash that’s immediately available. But it is common for joint sponsors to need to rely on other forms of assets, and these require some more careful assessment. Types of assets may include stocks, bonds, certificates of deposit, and property (both real estate and other forms of property).
Documenting the asset. You are required to provide the following documentation for any asset you report in Part 7:
- Proof of ownership.
- Proof of where the asset is located.
- Proof of the date you acquired the asset.
- A 12-month withdraw history.
- Proof of valuation (if applicable).
This documentation generally does not need to be notarized. In the case of a checking account, for example, you may simply provide copies of your last 12 months of statements to satisfy all requirements above. Issues with proof of valuation are most common when real estate is used. Ideally a recent appraisal of the property would be provided. Since this is expensive to obtain, sponsors often submit alternative evidence instead, such as tax assessment records and a free valuation from an online real estate site such as Zillow.com. Such alternative evidence may not be accepted by the immigration services, however.
Using assets of a household member. You may include the assets of another household member (see Part 7, item 5), but only if: (1) the household member completes a Form I-864A; and (2) the household member has been living with you for a minimum of 6 months. The household member’s assets need to be documented for the Form I-864A in the same way described above. You should also present proof that the person has been living at your address for the required 6 months, such as a rental agreement listing the individual, or bills sent to the address with that person’s name.
Using assets of the sponsored immigrant. You are allowed to count assets owned by the primary sponsored immigrant. Importantly, however, the immigrant’s assets may be counted by only one sponsor. So if you are a joint sponsor, you need to ensure that the primary sponsor has not already reported the immigrant’s assets on his/her Form I-864. If the immigrant’s assets are available for you to report, the immigrant does not need to complete a Form I-864A. But you will need to provide documentation of the assets as described above (showing ownership, etc.).
Using assets outside the U.S. What if you want to rely on assets in a foreign country? This is theoretically possible, but complex. Remember that the assets need to be available as cash in the U.S. within 12 months, if needed. You would need to provide documentation that it would be possible for you to make this happen, if needed. This would be relatively easy, for example, in the case of a London bank account, and a notarized letter from your banker should be sufficient. But the case becomes far more complex with countries who have less close financial ties to the U.S. For other countries you would be wise to provide a notarized legal opinion statement from an attorney explaining that the assets could be sold and proceeds transferred if needed. For any non-U.S. assets there is a good chance you will receive a time-consuming request for additional documentation from the immigration service.
III.8 Doing a final review
The immigration service has become infamous for rejecting I-864s with even small, typographical errors. For this reason we strongly encourage you to spend time carefully reviewing the form. Here are a couple suggestions for proactively reviewing the form.
- Print a copy of your completed form and get a blue pen and red pen. Going very slowly, look at each individual item on the form. Has the item been completed? If so give it a check with the blue pen? Is the item blank? If so, give it a check with the blue pen if it should be blank (as where it doesn’t apply to your case) or else mark it red. When you’ve gone through the entire form in this way, return to each red mark and make the appropriate correction to your form. When you make the correction, mark the item blue to indicate that it’s been corrected.
- Now print the form again and ask a friend or family member to repeat the correction process that you just did. At our firm we have a support personnel and an attorney go through this process for every form that leaves our office. It’s very time consuming, but a good way to catch errors.
- In Part 6, Items 19.a-19.c, double check that your “Total Income” matches the amount on the tax returns that you are providing. The immigration service can reject the Form I-864 if there is a single digit error in these items, even if the actual income meets the required level. Double and triple check that you provided the correct numbers. Remember, if you filed taxes using a Form 1040 then you report total income from those returns; if you filed using a Form 1040EZ then you use adjusted gross income.
IV. Required documents
You will be required to provide the following documents with your Form I-864. It is acceptable to send photocopies, rather than originals of these documents.
- Proof of U.S. Citizenship or Residency. You must submit one of the following based on whether you are a U.S. citizen or resident:
- Birth certificate;
- Certificate of naturalization;
- Certificate of citizenship;
- Consular report of birth abroad; or
- Photo (biographic page) of U.S. passport.
- Both sides of your Permanent Resident Card (Form I-551; “green card”);
- Both sides of your Alien Registration Receipt Card; or
- Unexpired Form I-551 stamp in foreign passport or on Form -94 Arrival-Departure record.
- Tax records. You are required to provide documentation of your most recent year’s Federal income tax returns. You are not required to provide returns for the additional two preceding years, but it is generally best practice to do so. There are two options for how to document your returns.
- Photocopies of returns. You are permitted to provide a photocopy of your federal income tax returns. Ideally this should be a photocopy of the signed form that you submitted to the IRS, including all attachments. In reality, people often have only an unsigned copy that their accountant gave them. We have seen many people submit such a copy without issue, but there is a chance it would be rejected. You may wish to consider the other alternative, which is submitting a copy of your tax transcript (see immediately below).
- Tax transcript. Alternatively, you can request something called a “tax transcript” directly from the IRS. This is the definitive record of your tax filing history. At our law firm we prefer to use tax transcripts instead of photocopied returns, to avoid any question of whether we are accurately reporting income history. The transcript can be requested by filing a paper copy of Form 4506-T with the IRS (available here). Historically you have been able to request the transcript online (here) though at the time or writing that service was not currently available. We have also had luck with clients going to a local IRS office to make the request in person, but it is not clear that all IRS offices will provide this service.
- Documentation of change of income (if applicable). See above.
- Documentation of assets (if applicable). See above.