Affidavit of Support for Sponsoring Aliens
Lal Varghese, Attorney at Law, Dallas

The Poverty Guidelines in effect on the filing date of an Affidavit of Support are used to determine whether the income requirement is met. For example, the effective date of the 2006 Poverty Guidelines was March 1, 2006. So, an I-864 filed on February 1, 2006, was subject to the 2005 Poverty Guidelines. If the sponsor’s income meets the minimum Federal poverty guideline income requirement other assets generally need not be presented. However, the consular officer may request evidence of assets and liabilities, as necessary to determine eligibility. The petitioner/sponsor may also count assets to meet the 125 percent minimum income requirement. The sponsor's income is totaled first. Personal assets and/or the income and assets of household members who have signed an I-864A are totaled next. Usually the sponsor must present evidence of location, ownership and value including liens and liabilities for each asset listed. The consular officer must find that the financial value of the asset can be converted to cash within one year to support the sponsored immigrant without undue harm to the sponsor or his/her family. The total net value of assets, less liens and liabilities against them, must equal five times the difference between the sponsor's income and 125% of the poverty level for the household size. Sponsors of spouses and children of U.S. citizens must only prove assets valued at three times the difference between the poverty guideline and actual household income. Sponsors of orphans who will acquire citizenship after admission to the United States must only prove assets equal to the difference between the poverty guideline and actual household income.

Assets easily convertible to cash can be savings, stocks, bonds and property. The immigrant visa applicant may also count assets that he or she owns that are outside the United States, such as real estate or personal property under the following conditions:
• The assets must be convertible to cash within 12 months
• The applicant must show that the assets can be removed from the country where they are located. Many countries have limits on cash or liquid assets that can removed from the country
• The net value of assets is at least five times the difference between the sponsor's income and 125 percent of the poverty guideline for the household size.

The sponsors receiving housing and other benefits in place of salary may count those benefits as income. The sponsor may count both taxable and non-taxable income (such as housing allowance). The sponsor must prove the nature and amount of non-taxable income. Evidence of such income can be a W-2 Form (such as Box 13 for military allowances), Form 1099 or other evidence. A credible offer of employment for the visa applicant may not replace or supplement an insufficient Affidavit of Support. A job offer may show ability of the applicant to overcome ineligibility as a public charge, but does not meet any I-864 requirement. The consular officers also look at other public charge factors affecting the financial situation of the sponsor and the applicant. Age, health, education, skills, financial resources and family status of the applicant and the sponsor are factors. Consular officers will verify to the extent possible that applicants have adequate financial support to prevent them becoming a public charge. If the poverty guidelines change between the time the petitioner signed the I-864 and the issuance of an immigrant visa, the petitioner/sponsor and joint sponsor, if required, need not submit a new I-864. The I-864 remains valid indefinitely unless evidence of failure to meet the poverty guidelines in effect on the date of I-864 filing arises. The consular officer will determine whether the income claimed by the sponsor and documented with financial evidence meets the poverty guidelines in effect at the time the I-864 was filed. If the income claimed does not meet the poverty guidelines then the consular officer may request that the sponsor submit current year income information.

The Affidavit of Support forms are not required to be notarized and the sponsor must only sign the form. However, by signing an Affidavit of Support the sponsor certifies under penalty of perjury that the information and supporting documents provided are true and correct. The sponsor is required to submit an IRS transcript or photocopy of only the most recent Federal income tax return with the I-864. However, the sponsor may, submit Federal income tax returns for the three most recent years if that helps establish his or her ability to maintain the household income required in the poverty guidelines. The consular officer determines if the income claimed by the sponsor meets the poverty guidelines. If the claimed income does not meet the poverty guidelines then the consular officer may additionally request current year income information. If the sponsor is relying on income from other household members to reach the minimum required income, a copy or IRS transcript of each individual's most recent tax return is also required, and each person must complete a Form I-864A. The consular officer may request additional evidence of income, such as an employment letter.

What does the sponsor do when he/she was not required by law to file an income tax return during a given year? If you did not have to file a tax return, attach a written explanation and a copy of the instructions from the IRS publication showing you were not obliged to file. Failure to file a required income tax return does not excuse the sponsor from submitting tax returns as supporting documents. If a tax return should have been filed, the Affidavit of Support will not be considered sufficient until the sponsor files the delinquent tax return and supplies copies with the Form I-864. If the income requirement is not met, but the sponsor claims to have under-reported his or her income, an amended tax return is required to process the immigrant visa application further.

Consular officers can only accept individual tax returns, since the individual, not the business is sponsoring the applicant. If the sponsor does not have copies of his/her tax returns, he/she can submit a summary of the returns from the Internal Revenue Service (IRS). The petitioner (sponsor) with limited financial resources may sponsor only the principal applicant and not his/her spouse and eligible children. The sponsor can limit the number of sponsored immigrants to the number of people who actually intend to immigrate at that time. The principal applicant must be one of the sponsored immigrants. The petitioner can reduce his/her household size by limiting the number of sponsored applicants. This reduces the minimum income requirement. The sponsor can file another Affidavit of Support for the principal applicant's dependents later when the petitioner and the principal applicant have more income. The principal applicant and any of his/her family members who may have already immigrated must be included in the household size for the new Affidavit of Support.

A joint sponsor may submit an Affidavit of Support to sponsor all or some of the family members if the primary sponsor does not meet the income requirements. A maximum of two joint sponsors per petition can be used. Each joint sponsor is only responsible for the applicant(s) listed on that joint sponsor’s Affidavit of Support. Important note: If a joint sponsor is used, the petitioning sponsor must submit Form I-864, not Form I-864EZ. A divorced parent's dependent children are members of his or her household, even if they live part of the time with the other parent. The child is a member of both parents' households on an Affidavit of Support unless a parent proves that he or she has no legal obligation to support the child. Each accompanying family member need not to have separate documents if they are traveling with the principal applicant. However, dependents immigrating with the principal applicant must have a signed original or a photocopy of the principal applicant's Form I-864, and I-864A if applicable. Copies may only be used by dependents named on the principal applicant's original forms.

Family members who immigrate later (follow-to-join) must have one complete set of the principal applicant's I-864 and supporting documents. Each arriving immigrant must present an I-864 Affidavit of Support with original signatures. Each family member with a separate visa petition must submit a signed Form I-864 with supporting documents from the petitioner/sponsor and Form I-864As with supporting documents from the joint sponsor(s) if applicable. Two joint sponsors can be used per family unit applying to immigrate under the same petition. If two joint sponsors are used, each joint sponsor is responsible only for the intending immigrant(s) listed on the joint sponsor’s Form I-864. Every joint sponsor must meet the minimum income requirement, citizenship, residence and age requirements. If the petitioner or primary sponsor dies before all qualified family members have immigrated, a new sponsor may submit a Form I-864 to become the primary sponsor regardless of the status of the deceased petitioner's estate. Will the I-864 I submitted expire if my relative's interview is delayed for any reason? No, the validity of the I-864, I-864 EZ, or I-864A is considered indefinite; beginning from the date the sponsor files it with the National Visa Center, the U.S. embassy or consulate.

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You may visit our website or our blog for more articles at: http://www.indiaimmigrationusa.com/
or http://www.indiaimmigrationusa.blogspot.com/ for more information about other related immigration matters.