VISA SPOTLIGHT: THE NEW AFFIDAVIT OF SUPPORT RULES

Posted on: November 30th, 1997
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The long-awaited Affidavit of Support Form and related rules have been released by the Immigration and Naturalization Service. Affidavits of support are used by immigrants to demonstrate that they are not inadmissible to the US on public charge grounds. The new rules require sponsors of certain immigrants to meet income requirements and be legally bound to supporting the person being sponsored. The new form I-864 is available for downloading at the Siskind, Susser, Haas & Chang Forms Center and the rules are at our site’s Documents Collection. Both are accessible from our web site at http://visalaw.wpengine.com. The INS estimates that at least 565,000 family-sponsored immigrants a year will need to submit the new I-864s.
The new form and rules will be used beginning on December 19, 1997. The following are highlights of the new rules:

  • Under the new rules, all family-based immigrants must use the new legally enforceable Form I-864 Affidavit of Support form for immigration and adjustment of status applications FILED AFTER December 19, 1997. The requirement also applies to employment-based applicants coming to work for relatives or for firms where relatives own 5% or more of the company. For employment-based immigrants, “relative” means a spouse, child, parent or sibling.
  • The new I-864 is legally enforceable. If a sponsor fails to support the immigrant, the sponsor can be sued by any government agency or private entity that provides “means-tested benefits.” The sponsor can also be sued by the immigrant.
  • Sponsors must earn at least 125% of the Federal poverty level (immigration officers will begin to use new poverty guidelines only at the start of the second month after the Department of Health and Human Services publishes them). The latest guidelines can be found at the Siskind, Susser, Haas & Chang web site at http://visalaw.wpengine.com/97apr/18apr97.html. The sponsor must show they meet the 125% test for a family size which includes the sponsor, the sponsor’s dependents, the immigrants currently being sponsored and any immigrants previously sponsored on Form I-864. Members of the sponsor’s household may have their incomes added in to the sponsor’s income if the household member signs a contract, Form I-864A (available at the Siskind, Susser, Haas & Chang Forms Center (http://visalaw.wpengine.com). Members of the US Armed Forces only need to meet 100% of the poverty level.
  • Assets can be substituted for income if the assets are readily convertible within a year and the net worth of the assets is five times the difference between the sponsor’s income and the poverty line for the sponsor’s household size. Liquid assets like bank deposits and stocks and bonds are best, though real property can work as well if it can be sold within a year. Evidence of ownership will be required if assets are to be used.
  • The family member who petitions for a would be immigrant must act as a sponsor and complete Form I-864. Other persons can act as joint sponsors IF the primary sponsor does not meet the income requirements and IF they are US citizens or permanent residents, they are over age 18 and they live in the US. Joint sponsors assume all of the same obligations as the first sponsor. There is no limit on the number of joint sponsors except each must meet 125% of the poverty line. To show income, the sponsor needs to submit proof of current employment (unless the sponsor has other income sources and income from employment is not necessary to meet the 125% test) and the sponsor’s most recent three Federal income tax returns. If the sponsor was not required to file a return in one of the years, the sponsor should explain the reasons on the I-864. In this case, a foreign income tax return or other evidence of income from foreign employment might be accepted.
  • Prospective immigrants who meet the rules for applying as a battered spouse or child do not need to meet the new affidavit of support requirements.
  • Green card lottery winners do not need to file the new I-864. To meet the public charge test, lottery winners would use the old Form I-134 Affidavit of Support or submit other documentation to meet the public charge requirement. For non-immigrants such as tourists and students, the old Form I-134 may be requested by a consular officer.
  • In certain circumstances, another sponsor may be substituted when the petitioner dies before all family members immigrate.
  • Sponsors are obligated to support the immigrant until the immigrant naturalizes, works for 10 years, leaves the US permanently, or dies. A sponsor’s estate can be held liable for any obligations that arose before the support obligation ended. Divorce does not nullify the I-864 obligation.
  • Sponsors are required to notify the Immigration and Naturalization Service within 30 days of changing addresses. Notification needs to be provided on Form I-865 (available at the Siskind, Susser, Haas & Chang Forms Center (http://visalaw.wpengine.com). There are stiff financial penalties ($250 to $5000) for not notifying the INS of an address change.
  • New immigrants will be barred for their first five years in the US from receiving federal means-tested public benefits. “Means-tested” benefits are currently defined to include Food Stamps, Medicaid, Supplemental Security Income and Temporary Assistance to Needy Families. After five years, immigrants can apply for these benefits, but the agency will have to count the income and resources of the sponsor and the sponsor’s spouse as part of the immigrant’s income in determining eligibility to receive the benefits. This is called “deeming.” States may also choose to “deem” their own means-tested benefits programs.

 

The new Affidavit of Support rules have been welcomed with considerable criticism from both pro-immigration and anti-immigration advocates. Immigrant rights organizations worry that the new rules will unfairly divide families of poor people and that the new rules are really intended to reduce legal immigration. The National Immigration Forum estimates that 29% of current immigrant sponsors and about 27% of all families would not qualify to sponsor family members.

Anti-immigrant activists complain the new rules don’t go far enough and that sponsors should have even greater accountability. Representative Lamar Smith, an outspoken critic of immigration, complained the list of means-tested public benefits was not broad enough.

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