As reported in our last issue, the new immigration law has stiffened requirements for affidavits of support that help immigration applicants demonstrate that they are not excludable on public charge grounds. The INS is scrapping the use of current form I-134 Affidavit of Support for immigration applicants and replacing it with a new longer, more complicated form, the I-864. Form I-134 will still be used for non-immigrant applications. According to the State Department, the new form will be ready for distribution by the middle of this month. The use of Form I-864 will be required for most immigration applicants interviewed after 1 April 1997. All family-based immigrant visa applicants and employment-based applicants where the petitioner has a significant ownership interest (5% or greater) in the petitioning entity must use the new form. It is not necessary for other employment or investment-based applicants nor must DV lottery applicants use the form.

The new form will reflect legislative changes in IIRAIRA 96, the new immigration law. The form will have the force of an enforceable contract and must show the sponsor has an annual income not less than 125 percent of the federal poverty line (100% if the petitioner is in the US Armed Forces on active duty) during the period in which the affidavit is enforceable. The contract is enforceable against the sponsor by the sponsored alien, local, state and federal government agencies or any other agency that provides means-tested public benefits.

The new law requires that where the affidavit of support is required, it must be the petitioner or sponsor that completes the form. The petitioner/sponsor will remain liable for reimbursement of any means-tested public benefits the beneficiary might receive after arriving in the US and that obligation continues until the beneficiary naturalizes, works 40 quarters, departs the US or dies.

In cases where the petitioner cannot meet the 125% test, a second or joint sponsor is permitted IF the joint or second sponsor meets the full 125 % income eligibility requirement alone. The intending immigrant can also supplement the affidavit of support where necessary by providing evidence of assets that are readily available and, combined with the petitioner's total household income, meet the income eligibility requirement. The value of the "assets" less any offsetting liabilities, must exceed by at least five times the difference between the federal poverty guideline established for the sponsor's household and the sponsor's household income.

The new form I-864 spells out the specific documentation each petitioner or sponsor must provide in support of the immigration application. Petitioners must meet the 125% test by submitting copies of their three most recent federal income tax returns (or an explanation of why they were not filed). Evidence of claimed assets should also be submitted if they are being used to support the application.

To determine household size for purposes of determining the applicable poverty guideline, the petitioner must list all members of the petitioner's family and anyone else for whom he/she may have completed an affidavit of support since March 1, 1977 as well as the beneficiary and all accompanying dependents. This is important since it can drastically increase the amount of money the petitioner must make in order to qualify.

Interestingly, the new forms do not require petitioners to list mortgages or other liabilities even though, as noted above, liabilities still are supposedly counted in evaluating whether assets can be counted toward meeting the public charge test. Nevertheless, immigration officers can request additional documentation on a case by case basis.

Because the Department of State anticipates problems adequately distributing the form to the public, it is encouraging applicants to download the form at the Bureau of Consular Affairs World Wide Web site (http://travel.state.gov/visa_services.html) or via the Bureau of Consular Affairs AutoFax Service (Telephone No. 202-647-3000). Local INS offices should also have the form available.