9 FAM 601.14
AFFIDAVIT OF sUPPORT
(Office of Origin: CA/VO)
9 FAM 601.14-1 Statutory and Regulatory Authority
9 FAM 601.14-1(A) Immigration and Nationality Act
INA 213A (8 U.S.C. 1183a).
9 FAM 601.14-1(B) Code of Federal Regulations
8 CFR 213a; 22 CFR 40.41.
9 FAM 601.14-2 Affidavit of Support purpose
The purpose of Form I-864:
(1) Is to create a legally binding contract between certain IV applicants, their sponsor(s) and the U.S. Government;
(2) It requires an applicant to have sponsorship at 125 percent of the Federally determined poverty income guidelines (or 100 percent if the sponsor is an active member of the U.S. Armed Forces, other than for training, and is sponsoring their spouse or child(ren)) to ensure that newly arrived aliens will be able to subsist for an extended period at a level above the poverty level; and
(3) The intention is to encourage immigrants to become and remain self-reliant, one of the oldest tenets of national immigration policy, and to provide the government with indemnification if they do not.
9 FAM 601.14-3 Affidavit of Support requirement
a. Applicants Required to Submit Form I-864: Applicants in any of the following immigrant categories must present Form I-864, properly executed in compliance with INA 213A, to establish their eligibility under INA 212(a)(4)(C). The term “relative” has been defined by 8 CFR 213a.1 to mean a husband, wife, father, mother, child, adult son or daughter, or brother or sister.
(1) Immediate relatives, including:
(a) Spouse of a U.S. citizen;
(b) Parent of a U.S. citizen;
(c) Child of a U.S. citizen (including orphans and Hague Convention adoptees unless they would become a citizen upon lawful admission as an immigrant pursuant to section 320 of the Act); (see paragraph d(1) below); and
(d) K nonimmigrants adjusting to LPR status (see paragraph d(3)(e) below).
(e) Certain children classified Immediate Relative (IR-2, IR-3, or IH-3) do not need Form I-864 (see paragraph d(1) below).
(2) Family-based preference applicants, including:
(a) Unmarried sons and daughters of U.S. citizens (F1);
(b) Spouses, children, and unmarried sons and daughters of permanent resident aliens (F2A/F2B);
(c) Married sons and daughters of U.S. citizens (F3); and
(d) Brothers and sisters of U.S. citizens (F4).
(3) Certain employment-based preference applicants including:
(a) Beneficiary of a petition filed by a U.S. citizen or LPR relative who is the sole proprietor of the business filing the petition;
(b) Beneficiary of a petition filed by an entity in which a U.S. citizen or LPR relative of the applicant has a 5 percent or greater ownership interest. (In such cases, the petitioning entity cannot file Form I-134, but must show intent to honor the employment offer.) The citizen or LPR relative of the applicant to be employed by the petitioning entity must file Form I-864 on behalf of the applicant;
(c) An accompanying or following-to-join family member of such immigrants, but only if the principal applicant, at the time of their entry, was required to submit Form I-864.
b. Applicants Who Are Not Required to Submit Form I-864:
(1) Certain IR-2, IR-3, and IH-3 Applicants who benefit from the Child Citizenship Act:
(a) Public Law 106-395 (the Child Citizenship Act of 2000) went into effect on February 27, 2001. The Act amended INA 320 to confer automatic citizenship upon certain categories of children born abroad upon their admission to the United States as LPRs. Because the obligations that INA 213A imposes on a sponsor who executes a Form I-864 terminate when the sponsored alien acquires citizenship, Form I-864 should not be required for those categories of immigrants who will acquire citizenship upon admission to the United States.
(b) Instead, the intending immigrant (or U.S. citizen parent if the immigrant is under 14 years of age) must file Form I-864W, Request for Exemption for Intending Immigrant's Affidavit of Support. Although such a visa applicant is still subject to the public charge provisions of INA 212(a)(4) even without an affidavit of support requirement, the public charge concern will no longer apply to the applicant once the immigrant acquires citizenship. You should consider the applicant’s acquisition of citizenship immediately upon admission when you determine whether the applicant is likely to become a public charge at any time while in the United States as an alien.
(c) Form I-864 is, therefore, not required in any case in which the visa applicant qualifies for automatic citizenship upon admission under Section 320 of the Act. That would include the following categories of immigrants:
(i) Orphan classified IR-3, provided the child will be admitted to the United States while still under age 18 and will be residing permanently in the United States in the legal and physical custody of the adoptive U.S. citizen parent as of the time of admission;
(ii) Hague Convention adoptee classified IH-3, provided the child will be admitted to the United States while still under age 18 and will be residing permanently in the United States in the legal and physical custody of the adoptive U.S. citizen parent as of the time of admission;
(iii) Adopted child classified IR-2 who meets the requirements of INA 101(b)(1)(E), provided the child will be admitted to the United States while under age 18 and will be residing permanently in the United States in the legal and physical custody of the adoptive U.S. citizen parent as of the time of admission; and
(iv) Child classified IR-2 (born in or out of wedlock) to a parent who is now a U.S. citizen, provided the child will be admitted to the United States while still under age 18 and will be residing permanently in the United States in the legal and physical custody of the U.S. citizen parent as of the time of admission.
(d) Except as explained in the notes in this section, the Form I-864 is required for all other family-based immigrants, including biological and adopted children of U.S. citizens who are not eligible for automatic naturalization upon admission as a legal permanent resident (LPR). Form I-864 is therefore required for:
(i) An alien classified IR-2 based on a stepparent and/or stepchild relationship with a U.S. citizen;
(ii) An alien classified IR-2 or IR-3 who will be age 18 or over upon admission to the United States as an LPR;
(iii) An alien classified IR-2 or IR-3 who will not be residing in the United States in the legal and physical custody of the U.S. citizen parent at the time of lawful admission; or
(iv) An alien classified IR-4 orphan to be adopted in United States by a U.S. citizen.
(e) In any case in which the consular section questions whether the visa applicant will immediately qualify for U.S. citizenship upon admission to the United States as an LPR, they should consult Consular Affairs/Overseas Citizens Services (CA/OCS) on the citizenship issue. If CA/OCS advises that the applicant will acquire U.S. citizenship at the moment of admission at the port of entry (POE), and not at any later point; then the applicant is exempt from the Form I-864 requirement, but the applicant instead should file the Form I-864W.
(f) In cases involving IV applicants who will be acquiring citizenship upon admission, pursuant to INA 320 it is unlikely in the absence of unusual circumstances that the individual will become a public charge while still an alien before naturalization. For adoption cases, you should also keep in mind that the Department of Homeland Security (DHS) does not approve Form I-600, Petition to Classify Orphan as an Immediate Relative, Form I-600A, Application for Advance Processing of an Orphan Petition, Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, or provisionally approve Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative unless satisfied that the petitioners are capable of supporting the child.
(2) Aliens with 40 Quarters of Work under the Social Security Act (SSA):
(a) The requirement for visa petitioners to submit Form I-864:
(i) Terminates once the sponsored alien has worked in the U.S. in a job covered under Title II of the Social Security Act (SSA); and
(ii) Can be credited with 40 qualifying quarters of coverage under Title II of the SSA.
(b) You must waive the Form I-864 requirement if the alien can demonstrate 40 quarters of work under the SSA. See 9 FAM 601.14-14 for procedures to follow in such cases. You should advise IV beneficiaries seeking to demonstrate 40 quarters of the SSA coverage to submit Form I-864W and to attach an earnings and benefits statement from the SSA. To obtain an earnings and benefits statement from SSA, IV applicants should complete Form SSA-7004-SM, Request for Social Security Statement. If you have questions about Social Security call, 1-800-772-1213 (toll free). For General Information TDD/TTY, call 1 (800) 325-0778 (toll free).
(c) The term "quarter" means:
(i) The three-calendar-month period ending on March 31, June 30, September 30, or December 31 of any year;
(ii) Quarters of coverage are obtained by working at a job or as a self-employed individual, earning a specified minimum income, and making Social Security payments on the earnings; and
(iii) Quarters are calculated based on the amount of income earned during the year, rather than the actual number of days worked within a given quarter.
(d) Every year the SSA establishes the requisite per quarter minimum income. Any individual earning three times this established amount during the calendar year, for example, would be credited with three quarters of coverage, even if the individual worked for only one month. The sponsored immigrant is not to be credited with any quarter beginning after December 31, 1996, during which the sponsored immigrant received any Federal means-tested public benefit.
(e) INA 213A(a)(3)(B) states that, in determining the number of qualifying quarters of coverage under title II of the Social Security Act, an alien is to be credited with:
(i) All the qualifying quarters of coverage as defined under title II of the Social Security Act worked by a parent of such alien while the alien was under age 18; and
(ii) All the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased.
(e) A parent-child relationship need not have existed when the parent worked the 40 quarters. For example, an alien can claim those quarters that the parent worked before the alien's birth or adoption.
(f) If the intending immigrant has or can be credited with 40 quarters of coverage under the Social Security Act, and thus is not required to file an I-864, the applicant should file the I-864W instead.
(3) Other Applicants Exempt from the Form I-864 Requirement:
(a) The I-864 requirement does not apply to employment-based visa cases, including SIVs, other than those involving a relative who is a U.S. citizen or LPR. Thus, if the I-864 is not required of the principal applicant in these employment-based cases, the accompanying or follow to join aliens are similarly not required to file the I-864.
(b) The I-864 is not required for Diversity Immigrants (DV) or returning resident (SB) applicants.
(c) The I-864 is not required for self-petitioning widows or widowers; or the battered spouse or child of a U.S. citizen who have an approved I-360, Petition for Amerasian, Widow(er), or Special Immigrant. However, these applicants must file the I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support. (d) The I-864 is not required for K visa applicants. However, such applicants will have to submit Form I-864 to DHS/USCIS at the time of adjustment of status to that of an LPR.
9 FAM 601.14-4 What is in the affidavit of support packet
a. Affidavit of Support (AOS) Packet:
(1) The documents listed below make up the affidavit of support packet and are designed to assist the sponsor’s understanding and proper completion of the affidavit of support (AOS) required by INA 213A:
(a) Form I-864 or Form I-864EZ;
(b) Current Federal Poverty Guidelines Schedule, Form I-864P;
(c) Form I-864A, Contract Between Sponsor and Household Member;
(d) Form I-865, Sponsor's Notice of Change of Address; and
(e) Checklist for preparing Form I-864.
(2) The National Visa Center (NVC) will include the checklist and other documents in the Instruction Package for Immigrant Visa Applicants, indicating the supporting documents required with Form I-864 or Form I-864EZ. Consular sections may reproduce the checklist for local use and include it with Form I-864 or Form I-864EZ that are distributed locally. They should also, when possible, make it available through websites and information units. They must maintain updated poverty guidelines and ensure that they are included with all AOS forms. NVC and consular sections should also make sponsors aware of the facts that their income must meet the poverty guidelines at the time of AOS filing with NVC or with the consular sections.
(3) This documentation, supported by items listed in paragraph (1) above, constitutes the primary (but not sole) evidence for establishing that the applicant is not ineligible under INA 212(a)(4)(C) for those categories specified in 9 FAM 302.8-2(B)(2) and establishes the sponsor's income and, if need be, assets.
(4) The validity of Form I-864 or Form I-864EZ is indefinite from the time the sponsors and contributing household members have signed Form I-864, Form I-864EZ and Form I-864A. The AOS is based on the Federal Poverty Guidelines in effect at the time of its submission in support of an IV application. Paragraph e below describes circumstances in which additional documentation and/or consideration of income based on the current poverty guidelines may be necessary at some consular sections. Newly issued poverty guidelines generally become effective for INA 213A affidavit purposes at the beginning of the second month after being published in the Federal Register (FR). However, you must review the text of the FR notice to determine the exact date on which new poverty guidelines become effective.
(5) A sponsor may use the Form I-864EZ in place of Form I-864 if they meet all the following requirements:
(a) The sponsor is the visa petitioner (who filed the Form I-130, Petition for Alien Relative);
(b) The affidavit of support is filed on behalf of only one intending immigrant, who is the only person listed on the Form I-130;
(c) The sponsor is seeking to qualify based solely on their income from salary or pension (not based on any other income or assets) as shown on the most recent Federal income tax return that the sponsor filed before the time of signing the Form I-864EZ; and
(d) All the sponsor’s income is shown on one or more IRS Form W-2, Wage and Tax Statement to demonstrate employment income, and/or Form IRS-1099-MISC, Miscellaneous Income, to document pension income (except, in cases where the copy of the tax return is an IRS-generated transcript, a copy of the W-2 or 1099-MISC is not necessary). The Form I-864EZ may not be filed if the sponsor will be submitting a Form I-864A, if a joint sponsor will be required, or if the sponsor is an “substitute sponsor” who is substituting for the original sponsor, who has died (see paragraph e below).
9 FAM 601.14-5 Sponsors
a. In General:
(1) To qualify as a sponsor, an individual must be a natural person (not a corporation or other business entity) who:
(a) Is a citizen, national, or LPR of the United States (including conditional residents);
(b) Is at least 18 years of age;
(c) Filed the petition which forms the basis for the visa application (or has a substantial interest in the entity which filed the petition); and
(d) Is domiciled in any of the 50 States of the United States, the District of Columbia, or any territory or possession of the United States. See 9 FAM 601.14-7 below.
(2) If the relative petitioner sponsor cannot meet the income guidelines described in 9 FAM 601.14-2 above, the visa applicant will require a joint sponsor
(3) The “sponsor” for purposes of the AOS is the petitioner; anyone else is either a joint or substitute sponsor. All references to requirements for the “sponsor” or “sponsors” would apply not only to the petitioner sponsor, but also to any substitute sponsor, household members executing Form I-864A, and joint sponsors submitting a Form I-864.
b. Petitioner Must Submit Form I-864 or Form I-864EZ: The petitioner must submit Form I-864 or (if eligible) Form I-864EZ for all applicants contained in the petition.
(1) An original or a copy of the I-864 should be included for each applicant included on the petition. In most cases, the petitioner must submit Form I-864 or Form I-864EZ, Affidavit of Support under Section 213A of the Act. This is true even if they cannot meet the requirements outlined in paragraph (1) above. Such adverse circumstances would not necessarily mean that the applicant would be ineligible under INA 212(a)(4) since a joint sponsor may be used to meet the Federal poverty level income requirements.
(2) A joint sponsor may be used to meet the Federal poverty level income requirements if the petitioner is unable to meet the Federal poverty level. If a joint sponsor is used, the petitioner may not use Form I-864EZ and must use Form I-864.
(3) The petitioner must submit a Form I-864, even in the case of a following-to-join derivative beneficiary of the petition where the principal applicant has adjusted status in the United States.
(4) There are, however, two exceptions to the requirement of the petitioner completing Form I-864. See paragraph d below for the exceptions.
c. Petitioner May Limit Number of Applicants Sponsored: A petitioner may limit sponsorship to just the principal applicant and any dependents that will be traveling to the United States at the same time. By limiting the number of sponsored individuals, the petitioner will reduce the household size and thereby lower the income requirement. The petitioner could file another affidavit of support (AOS) on behalf of the other (following-to-join) dependents later when the petitioner and the principal applicant have improved their financial situation. Alternatively, in cases that involve more than one visa applicant, a petitioner may sponsor one or more immigrants and choose to use a joint sponsor for the remainder of the applicants, to comply with the poverty guidelines. Regardless, a Form I-864 would have to be executed by the petitioner for all applicants. Only then could a joint sponsor be used if needed.
d. Sponsor When the Petitioner Is a Business Entity: When the petitioner is a business entity, a U.S. citizen or LPR relative (defined at 8 CFR 213a.1 as a husband, wife, father, mother, child, adult son or daughter, or sibling) who has a significant ownership interest in the petitioning entity, the petitioner must submit Form I-864. The substitute sponsor must be the U.S. citizen or LPR relative who filed the petition or has a significant ownership interest in the petitioning entity and they must meet the other criteria outlined in paragraph c above.
e. Substitute Sponsor When the Petitioner Has Died:
(1) INA 213A(f)(5)(B) now allows certain family members to become “substitute sponsors” if a visa petitioner dies following approval of the visa petition, but before the beneficiary obtains their permanent residence. If the visa petition was approved before the death of the petitioner, the Secretary of Homeland Security (DHS), may, in its discretion, reinstate the petition for humanitarian reasons, (8 CFR 205.1(a)(3)(i)(C)), and determine that the original sponsor’s petition should not be revoked. See 9 FAM 504.2-8(C)(4). The substitute sponsor must be the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of the sponsored applicant, or the legal guardian of the sponsored applicant. The substitute sponsor must meet the other criteria outlined in paragraph c above.
(2) Eligibility of derivative applicants seeking to follow-to-join a principal applicant who has already acquired LPR status is dependent on the continuing LPR status of the principal, not on the status of the petitioner. Therefore, if the petitioner dies after the principal applicant has already become an LPR and one or more derivative applicants seek to follow to join the principal applicant, the derivatives retain eligibility to follow-to-join despite the death of the petitioner, and there is no need for reinstatement of the petition. In such circumstances, the derivative applicant seeking to follow-to-join is ineligible unless a substitute sponsor, as described in the paragraph above, executes a Form I-864 with respect to the derivative applicant. The substitute sponsor may not file a Form I-864EZ.
9 FAM 601.14-6 Required Supporting Evidence
a. In General:
(1) Use of the Term Sponsor: The “sponsor” is the petitioner; anyone else is a joint or substitute sponsor. All references to requirements for the “sponsor” or “sponsors” would apply not only to the petitioner sponsor, but also to any substitute sponsor, household members executing Form I-864A, and joint sponsors submitting a Form I-864.
(2) What is Income? Income means the total unadjusted income as shown on the tax return before deductions. Total unadjusted income includes not only salary (if any) but also monetary gains from any other source, such as rent, interest, dividends, etc.
b. Required Documentation: The sponsor(s) must provide the following documentation to satisfactorily complete Form I-864:
(1) Sponsor's Federal income tax returns for the most recent tax year:
(a) Each sponsor must submit with Form I-864 a photocopy or Internal Revenue Service (IRS)-generated transcript of the most recent income tax return that the sponsor had filed before the time of the AOS signing. A person may obtain a free IRS-generated transcript by filing IRS Form 4506-T (Form IRS-4506), Request for Transcript of Tax Return. Ordinarily, the sponsor's signature on Form I-864 is sufficient to qualify the photocopy or transcript as a "certified" copy. In those cases where you question the authenticity of the submitted tax return or transcript, you may require the sponsor to submit an IRS-certified copy of the tax return.
(b) A person obtains an IRS-certified copy by submitting Form IRS-4506, Request for Copy of Tax Return, and paying the requisite filing fee. In such cases, you should generally require that the sponsor have the IRS-certified copy sent directly to the consular section by the IRS. The sponsor should ask the IRS to include the applicant's name and case number on the form so that it can be readily attached to the correct file upon receipt in the visa unit. You may not require IRS-certified copies of tax returns of all sponsors before review of the submitted tax return. IRS-certified copies may only be required on a case-by-case basis when you question the validity of the submitted tax return.
(c) Failure to file a required income tax return does not excuse the sponsor from the requirement of providing tax returns as supporting documents. If a tax return should have been filed, the affidavit will not be considered sufficient until the sponsor has done so and supplied the appropriate copies for consideration with Form I-864. If the income requirement cannot be met, based on the income reported in the tax return, but the sponsor claims to have reported their income on the tax return, you may advise applicants or sponsors that an original or amended tax return will be required to process the IV application to conclusion.
(i) If the sponsor is claiming to meet the poverty guidelines based on money earned at work (salary) and submitted an original tax transcript, the sponsor will only need to submit a Form W-2 if their status is "married filing jointly."
(ii) If the sponsor submitted a copy of a tax return (Form-1040) – not a transcript – then the sponsor, regardless of filing status, will need to include a W-2.
(d) You do not have the authority to require an individual to pay taxes or correctly report income.
(2) Household Member Tax Returns: Tax returns of other household members: If the sponsor is relying on income from any household member or dependents (as defined at 9 FAM 302.8-2(B)(6)) to reach the minimum income requirement, an IRS transcript or a copy of each such individual’s most recent tax return is also required, and each such person must complete a Form I-864A;
(3) Employment evidence:
(a) Except as provided below, if the information on the Affidavit of Support (AOS) and tax return establish that the sponsor's current income meets or exceeds the poverty guidelines for the year the sponsor submitted Form I-864 in support of the IV application, either by submitting to NVC directly or to the consular section at the time of application, you must determine that Form I-864 is sufficient without requesting any further evidence. See 9 FAM 601.14-15.
(b) You should request additional evidence (i.e., employment letter, recent pay statements, or other financial data) only if there is a specific reason (other than the passage of time) to question the veracity of the income stated on Form I-864 or the accompanying document(s).
(c) If the AOS or tax return reflects income below the poverty guidelines for the year Form I-864 was submitted, you should request additional evidence of:
(i) Current employment or self-employment; and
(ii) Recent pay statements, a letter from the employer on business letterhead - showing dates of employment, wages paid, and type of work performed - or other financial data.
(iii) If the sponsor with income below the poverty guidelines is unemployed or retired, you should request evidence of ongoing income from other means, such as retirement benefits, other household members' income, or other significant assets.
(4) Evidence of Eligibility: Evidence to establish eligibility as a sponsor, including citizenship or LPR status, age, and domicile (as defined above).
c. Tax-free income (such as a housing allowance for clergy or military personnel) and other tangible benefits in lieu of salary are considered income. The sponsor bears the burden of proving the nature and amount of income.
d. Additional Assets Evidence:
(1) The Form I-864 does not require sponsors to submit evidence of assets, if income alone is sufficient to meet the minimum Federal poverty guidelines income requirement described in paragraph a(2) above. The mere fact that the petitioner and/or sponsor have met the minimum requirement, however, does not preclude a finding of ineligibility under INA 212(a)(4). You may request evidence of assets and liabilities, if such information is necessary to determine the applicant's eligibility. If a sponsor or joint sponsor uses assets to prove the ability to support the sponsored immigrant, they may not use the Form I-864EZ.
(2) The sponsor or joint sponsor may include their assets (and offsetting liabilities), and/or the assets of any household members signing Form I-864A, as income to make up any shortfall toward meeting the Federal poverty guidelines. The assets (including bank accounts, stock, other personal property, and real estate) must be available in the United States for the applicant's support and must be readily convertible to cash within one year. In most cases, the sponsor must present evidence as described in 9 FAM 601.14-16 paragraph a(7), establishing location, ownership and value of each asset listed, including liens and liabilities for each asset listed. The combined cash value of all the assets (i.e., the total value of the assets less any offsetting liabilities) must total at least five times the difference between the total household income and the minimum Federal poverty income requirement.
(3) (U) Sponsors of immediate relative spouses and children of U.S. citizens, including Hague Convention adoptees who will not immediately acquire citizenship after admission to the United States, however, must only show combined cash value of assets in the amount of three times the difference between the actual household income and the minimum Federal poverty income requirement. In addition, sponsors of orphan applicants who will acquire citizenship after admission to the United States based upon either adoption in the United States after admission, or formal recognition of a foreign adoption under the law of the State of proposed residence, need only prove a combined cash value of assets in the amount of the difference between actual household income and the minimum Federal poverty income requirement.
(4) (U) If assets of the sponsored applicant are being used in such a fashion, the sponsored applicant is not required to submit Form I-864A but must show the same kinds of evidence as described in and show that the assets can be converted into cash within one year.
d. (U) Assembling the documents is the sponsor's responsibility. If the I-864 and supporting documents are incomplete or poorly assembled, the visa officer must refuse the applicant under INA 221(g) and return the entire package to the applicant with a copy of the checklist. However, the applicant is no longer required to submit the three most recent federal tax returns, therefore, this is not a valid basis to refuse applicants under 221(g).
e. (U) For more information on what is required on the I-864, you may refer to the instructions which accompany the Form I-864 itself.
9 FAM 601.14-7 Domicile
a. In General:
(1) Under INA 213A, "domicile" means:
(a) The place where a sponsor has their principal "residence" or (as defined in INA 101(a)(33)) in the United States, with the intention to maintain that residence for the foreseeable future.
(b) (U) A legal permanent resident (LPR) living abroad temporarily has a domicile in the United States if they have applied for and obtained the preservation of residence benefit under INA 316(b) or INA 317.
(c) A U.S. citizen living abroad whose employment meets the requirements of INA 319(b)(1) is domiciled in the United States.
(2) Maintaining U.S. Domicile:
(a) Unless the petitioner meets the conditions outlined in paragraph (3) below, a petitioner who is maintaining a principal residence outside the United States could not normally claim a U.S. domicile and would be ineligible to submit Form I-864. Such a petitioner would have to reestablish a domicile in the United States to be qualified to provide an AOS for their relative. See paragraph (4) below.
(b) However, in a situation in which the petitioner has maintained both a U.S. residence and a residence abroad, you must determine which the principal abode is. Some petitioners have remained abroad for extended periods but still maintain a principal residence in the United States (i.e., students, contract workers, and non-governmental organization (NGO) volunteers). To establish that one is also maintaining a domicile in the United States, the petitioner must satisfy you that they:
(i) Departed the United States for a limited, and not indefinite, period;
(ii) Intended to maintain a U.S. domicile at the time of departure; and,
(iii) Can present convincing evidence of continued ties to the United States.
(3) Establishing U.S. Domicile:
(a) A petitioner living abroad not meeting the criteria in paragraph a(2) above who wishes to qualify as a sponsor must satisfy you:
(i) That they have taken steps to establish a domicile in the United States;
(ii) That they have either already taken up physical residence in the United States or will do so concurrently with the applicant;
(iii) The sponsor does not have to precede the applicant to the United States but, if they do not do so, they must at least arrive in the United States concurrently with the applicant;
(iv) The sponsor must establish an address (a house, an apartment, or arrangements for accommodations with family or friend) and either must have already taken up physical residence in the United States; or
(v) Must at a minimum to satisfy you that they intend to take up residence there no later than the time of the applicant’s immigration to the United States.
(b) There is no time frame for the resident to establish residence, but you must be satisfied that the sponsor has, in fact, taken up principal residence in the United States. Evidence that the sponsor has established a domicile in the United States and is either physically residing there or intends to do so before or concurrently with the applicant may include the following:
(i) Opening a bank account;
(ii) Transferring funds to the United States;
(iii) Making investments in the United States;
(iv) Seeking employment in the United States;
(v) Registering children in U.S. schools;
(vi) Applying for a Social Security number; and
(vii) Voting in local, State, or Federal elections.
(c) If a petitioner cannot satisfy the domicile requirement, the petitioner fails to qualify as a “sponsor” for the purposes of submitting Form I-864. A joint sponsor cannot be accepted and the applicant must be refused pursuant to INA 212(a)(4). Without a properly executed I-864, signed by a sponsor (the petitioner) who is “domiciled” in the United States, in visa cases which require an I-864, then an IV cannot be approved.
(4) U.S. Domicile for Employment-Based Preference Applicants: Employment-based beneficiaries who are petitioned for by U.S. citizen or LPR relatives or by entities in which such a relative has a significant ownership interest are required to submit a Form I-864. However, the DHS/USCIS has determined that Congress did not intend to impose this requirement on a petitioning relative, or a relative with a substantial interest in a business enterprise who is not a U.S. citizen or an LPR and is not domiciled in the United States. In these cases only, the lack of Form I-864 will not be an impediment to admissibility. We concur with this finding; therefore, in these cases, lack of a Form I-864 would not be an impediment to visa issuance.
b. Employment Abroad Meeting Requirements of INA 319(b)(1):
(1) A U.S. citizen who is living abroad temporarily is domiciled in the United States if the citizen's employment meets the requirements of INA 319(b)(1). That section requires, for qualifying “employment abroad,” that the citizen be in the employ of:
(a) The U.S. Government;
(b) A U.S. institution of research recognized as such by the Secretary of Homeland Security (DHS) (see 8 CFR 316.20 for the list of institutions);
(c) A U.S. firm or corporation engaged in whole or in part in the development of foreign trade and commerce with the United States or a subsidiary thereof;
(d) A public international organization in which the United States participates by treaty or statute;
(e) A religious denomination having a bona fide organization in the United States, if the individual concerned is authorized to perform the ministerial or priestly functions thereof; and
(f) A religious denomination or an interdenominational mission organization having a bona fide organization in the United States, if the person concerned is engaged solely as a missionary.
(2) See INA 316 and INA 317 regarding continuous residence requirements for LPRs.
9 FAM 601.14-8 Household Size
a. Definition: Household members for determining the applicable Federal poverty line levels and all other associated purposes include:
(1) The sponsor;
(2) The sponsor's spouse; and the sponsor's children by birth, marriage, or adoption living in the sponsor's residence;
(3) Any other dependents of the sponsor (if identified as such on the sponsor's Federal income tax return for the most recent year, regardless of whether they are related to the sponsor or have the same principal address as the sponsor);
(4) Any immigrants previously sponsored using Form I-864, if the obligation has not terminated;
(5) Family members immigrating at the same time or within six months of the principal immigrant listed in the chart in Part 3 of Form I-864; and
(6) The sponsor's nondependent siblings, parents, or adult children who reside in the sponsor's household who are not dependents, if they complete a Form I-864A.
b. Use of Form I-864A, Contract Between Sponsor and Household Member:
(1) If a sponsor's individual income meets or exceeds the required level of the Poverty Guidelines, no other evidence is necessary. In cases in which the sponsor's individual income is insufficient, however, the applicant may submit a Form I-864 from a joint sponsor and/or a Form I-864A, Contract between Sponsor and Household Member who is willing for their income to be used by the sponsor to meet the guidelines. A separate Form I-864A must be used for each household member whose income and and/or assets are being used by a sponsor to qualify. Each Form I-864A is completed and signed by two individuals: a sponsor who is completing Form I-864 and a household member who is promising to make their income and/or assets available to the sponsor to help support the sponsored immigrant(s). The primary sponsor must include the names of these individuals and their contributions on their Form I-864.
(2) Under Form I-864A, the household member agrees to provide as much financial assistance as may be necessary to enable the sponsor to maintain the sponsored immigrant(s) at the required annual income level. The household member will be jointly and severally liable for any reimbursement obligations that the sponsor may incur.
c. Applicant’s Use of Form I-864A:
(1) If the sponsored immigrant has accompanying family members and the sponsor seeks to rely on the sponsored immigrant’s continuing income in the United States to establish the sponsor’s ability to support the accompanying family members, the sponsored immigrant must sign Form I-864A. Income shown in a sponsored immigrant’s Form I-864A cannot be based on an offer of employment until after employment has commenced.
(2) If the sponsored immigrant does not have accompanying family members, they cannot submit Form I-864A. Their income may be counted in the household income, however, if they will continue to work in the same job after they immigrate to the United States. You may request evidence of the applicant's income such as pay statements and tax returns, if they were required to file them, and should request a letter from the employer certifying that the employment will continue after the applicant's immigration to the United States.
9 FAM 601.14-9 Joint Sponsor
a. In General: A "joint sponsor" is one who is not the petitioner for the sponsored immigrant but who otherwise meets the citizenship, residence, age, and household income requirements, as set forth in 9 FAM 601.14-5 above, and has executed a separate Form I-864, on behalf of the intending immigrant.
b. Unique from Household Member: The joint sponsor differs from a “household member” in that the joint sponsor can be a friend or third party who and is not necessarily financially connected with the sponsor’s household.
c. When is a Joint Sponsor Needed: A properly filed, non-fraudulent Form I-864 that meets the requirements of INA 213A, in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis. Therefore, in cases where the sponsor's I-864 is sufficient, a joint sponsor is not required. A joint sponsor would only be required in those cases if you determine that the AOS is not sufficient. For example, if the sponsor’s income is from a job that is merely temporary or seasonal, you might reasonably conclude that the AOS, for that reason, is not sufficient.
(1) If the petitioner or substitute sponsor cannot demonstrate ability to maintain a household income of at least 125% (or 100% when applicable) of the Federal Poverty Guidelines, the intending immigrant may meet the AOS requirement by obtaining a joint sponsor who is willing to accept joint and several liability with the principal sponsor as to provide support to the sponsored applicant during the period that the affidavit is enforceable;
(2) If a joint sponsor submits an AOS, remember that the petitioner (the principal sponsor) still must submit an AOS, regardless of whether the sponsor had no income, or did not make enough income to be required to file income tax returns;
(3) The joint sponsor must demonstrate income and/or assets that independently meet the requirements to support the sponsored immigrant(s). It is not sufficient for the combination of incomes of the primary sponsor, sponsored immigrant, and joint sponsor to meet the threshold.
(4) 8 CFR 213a.2(c) allows but does not require two joint sponsors per family unit intending to immigrate based upon the same family petition. No individual may have more than one joint sponsor, but it is not necessary for all family members to have the same joint sponsor.
b. Multiple Joint Sponsors: Two joint sponsors can be used per family unit intending to immigrate based upon the same petition. No individual may have more than one joint sponsor, but it is not necessary for all family members to have the same joint sponsor. 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.
c. Joint Sponsor Liability: A joint sponsor is jointly and severally liable with petitioning sponsor and any household members who have signed a Form I-864A. They must individually meet the minimum income requirements as set forth above. Anyone outside the petitioner's household may be considered a joint sponsor. Joint sponsors may include the income and assets of members of their own household and dependents to meet the income requirement.
d. Death of a Joint Sponsor: In the event a sponsor has died before all family members have followed to join the principal, a joint sponsor is permitted to execute a Form I-864. The new sponsor may submit a Form I-864, regardless of the status of the deceased petitioner's estate.
9 FAM 601.14-10 Legal Obligations of Sponsors
a. In General:
(1) The execution of Form I-864 creates a legally binding contract between the sponsor(s) (including any household members who have executed Form I-864A, and any joint sponsor), and any Federal, State, local, or private entities that provide means-tested public benefits (SSI, TANF, etc.) throughout the duration of the contract. By executing Form I-864, the sponsor agrees to:
(a) Provide financial support necessary to maintain the sponsored immigrant at an income that is at least 125 percent of the Federal poverty guidelines for the indicated family size (see 9 FAM 601.14-15); and
(b) Reimburse any agencies that provide means-tested public benefits to a sponsored alien.
(2) In most cases, an alien is not eligible to receive any Federal benefits during their first five years in the United States. Although the alien may obtain public benefits thereafter, disbursing entities may seek reimbursement from the alien's sponsor for certain means-tested public benefits received by the alien, for the duration of the validity of the affidavit of support. If the petitioner's Form I-864 does not meet the minimum Federal poverty guideline amount and a joint sponsor is necessary, the petitioner is still responsible for any amount of income or assets included in their Form I-864.
b. Duration of Obligation Under Form I-864, Affidavit of Support Under Section 213a of the Act: Sponsors, joint sponsors, and household members (who have executed Form I-864 or Form I-864A, (Contract Between Sponsor and Household Member)) are bound by the contract terms until the applicant:
(1) Is naturalized;
(2) Has worked, or can be credited with, 40 qualifying quarters of work;
(3) Leaves the United States permanently; or
c. Death of the Sponsor: In the event that a sponsor dies, the sponsor's estate remains liable for the duration of the contract. If the sponsor dies after the principal applicant has immigrated, but before the qualified family members who are following to join have immigrated, the applicants must get another sponsor, although no new petition need be filed. If the principal applicant can meet the requirements to be a sponsor, they may submit Form I-864 for their family members.
9 FAM 601.14-11 Liability for Means-Tested PUBLIC Benefits
a. During the life of the contract, a sponsor is liable for "means-tested public benefits" received by the sponsored applicant. Federal, State, and local agencies will define which public benefits are "means-tested" and whether they wish to seek reimbursement.
b. The agency supplying the means-tested public benefit must have designated the program as such before the sponsor's submission of Form I-864 for expenses relating to that benefit to be reclaimable from the sponsor. Moreover, the agency must request reimbursement. In the absence of such a request, the sponsor is not liable.
c. As we have no role with respect to designating means-tested public benefits or with reimbursement, any question regarding whether a benefit should be considered a means-tested public benefit is outside the scope of your inquiry into an applicant’s eligibility for a visa.
9 FAM 601.14-12 Submitting Form I-864, Affidavit of Support Under Section 213A of the Act
a. Notarizing and Photocopying Documentation:
(1) Required signatures do not need to be notarized. This includes the signature of the sponsor(s), or the sponsor's household members or dependents on Form I-864 and Form I-864EZ, Affidavit of Support under Section 213A of the Act; Form I-864A; and Form I-864W. You should not require ink signature on the I-864. A photocopy of the I-864 with the sponsor's signature is sufficient. A typed or printed name is not acceptable.
(2) The sponsor, by signing the Form I-864 under penalty of perjury, certifies that the transcript or photocopy is true and correct. This certification meets the statutory requirement of presenting a “certified” copy and, per 28 U.S.C. 1746, the requirement that the affidavit of support be sworn or affirmed before a notary, consular officer, or immigration officer.
(3) Principal applicants and accompanying spouses and/or children may travel together on one complete set of the documents prepared in support of Form I-864.
(4) The supporting documents should be made a part of the principal applicant's Instruction Package for Immigrant Visa (IV). The principal applicant's alien registration number (the Department of Homeland Security (DHS) assigned "A number") should be recorded on each accompanying individual's Form I-864 "for agency use only" box (on page 1 of the form).
(5) Similarly, following-to-join applicants, traveling either alone or in a group, will require only one complete set of the documents prepared in support of the principal applicant's Form I-864.
(6) For following-to-join applicants traveling together, the documents should be included in only one applicant's issued visa packet.
(7) The alien registration number of the applicant carrying the support documentation must be recorded on Form I-864 (page 1 of the form).
(8) A correct and complete signed Form I-864 submitted to the NVC is sufficient. An individual does not need to submit an original I-864 at the time of the interview. The I-864 submitted to NVC (either in hard copy or electronically) must be included in the IV packet.
(9) The supporting documents carried by the designated following-to-join applicant may be photocopies of the originals and do not need notarization or an original signature.
b. Where to Submit:
(1) The sponsor (or joint sponsor) is instructed to send the Form I-864, and all supporting documents (a complete set for the principal and a signed Form I-864 under penalty of perjury, (and form I-864A, if necessary) for each accompanying dependent) directly to NVC.
(2) NVC will review the submitted Form I-864 and documents for clerical completeness and provide the sponsor two opportunities to supply any missing information or documents. After the second review, NVC forwards the Affidavit of Support with the case file directly to the consular section.
(3) The NVC review does not apply to IV cases where the petitioner has filed the Form I-130, Petition for Alien Relative, at the consular section.
9 FAM 601.14-13 Reviewing Form I-864 or Form I-864EZ
a. In General: You must ensure that each section of Form I-864 or Form I-864EZ has been completed properly. It is your responsibility to review the information provided with the petition packet and other documents provided at the time of interview.
b. Part 1 of Form I-864 or Form I-864EZ, Basis For Filing Affidavit of Support: Verify that sponsor has checked the appropriate box(es):
(1) If the I-864EZ is being used, sponsors must check “Yes” on boxes a, b, and c;
(2) If the I-864 is being used and box “d” has been checked, indicating a single joint sponsor, you should ensure that there are two Forms I-864: one from the petitioner and one from the joint sponsor; and
(3) If the I-864 is being used and box “e” has been checked, indicating two joint sponsors, you should ensure that there are three Forms I-864: one from the petitioner, one from the first joint sponsor, and one from the second joint sponsor.
c. Parts 2-4 of Form I-864 Or Form I-864EZ, Basis For Filing Affidavit of Support: Information on the Principal Immigrant, Accompanying Family Members, and Information on the Sponsor.
(1) Compare the information provided from other documents included in the application and/or verifying data with the sponsored immigrant at the time of the visa interview;
(2) If the sponsor is using the I-864 only “accompanying” family members should be listed in the chart in Part 3. Be sure that the first and last name of each accompanying family member is listed; and
(3) Family members “following to join” (i.e., intending to immigrate more than 6 months after the principal intending immigrant) should not be listed in Part 3.
d. Part 5 of Form I-864 or Part 4 of Form I-864EZ: Sponsor’s Household Size: The sponsor’s total household size is used to determine the correct Federal Poverty Guideline threshold. For the I-864, a household size includes the following groups of individuals:
(2) Person(s) the sponsor is sponsoring on the Affidavit of Support (will always be one if the sponsor is using the I-864EZ);
(3) Sponsor’s spouse, if the sponsor is married;
(4) The sponsor’s children, as defined in section 101(b)(1) of the Act, except those that have:
(a) Reached the age of majority (i.e., are at least 18 years old) or liberated under the law of sponsor’s domicile; and
(b) Are not claimed as dependents on the sponsor’s most recent Federal income tax return;
(5) Other persons lawfully claimed as dependents on the sponsor’s tax return for the most recent tax years; and
(6) The number of siblings, parents, and/or adult children who:
(a) Have the same principal residence as the sponsor; and
(b) Have combined their income with the sponsor’s income by submitting Form I-864A.
e. Part 6 of Form I-864 or Part 5 of Form I-864EZ Sponsor's Information About Employment and Income:
(1) General Rule and Active Duty Military Exception:
(a) Either the petitioning sponsor, substitute sponsor, or a joint sponsor must show the ability to maintain their annual household income at 125 percent of the governing Federal Poverty Guideline threshold (see 9 FAM 601.14-15 below);
(b) A petitioner on active duty in the U.S. Armed Forces, other than for training, needs to demonstrate an annual income equal to at least 100 percent of the Federal Poverty Guidelines if they are petitioning for a spouse or child;
(c) A substitute sponsor or joint sponsor is not eligible to claim 100% income level based on petitioner’s relationship to the intending immigrant, or petitioner’s military status;
(d) A substitute or joint sponsor may claim the 100% income level only if they are on active duty in the U.S. Armed Forces (other than training) and the intending immigrant is the spouse or child of the substitute sponsor or joint sponsor;
(e) To qualify for the Military Exception:
(i) The petitioner must provide evidence that they are on active duty, such as military dependent’s identification card for the intending immigrant (spouse or child); and
(ii) A photocopy of the military identification card of the sponsor (spouse or parent).
(f) Regardless of whether a sponsor qualifies for the military exception, all their income counts toward the 125% (or 100%) income requirement, including (in the case of Armed Forces personnel) any allotments received for the dependents.
(2) Poverty Guidelines: See 9 FAM 601.14-15 below, Poverty Income Guidelines.
(3) Determining the Sponsor’s Ability to Provide Sufficient Support:
(a) If a sponsor is using Form I-864EZ, they must only use their salary or pension as shown on their most recent Federal income tax return. If the sponsor provides a photocopy of the return, they must include a copy of W-2 provided by the sponsor’s employer(s) and/or Form(s) IRS-1099 to show pension income. As with other sponsors, these copies are not needed if the sponsor provides an IRS transcript of the return (see Part 1(a) of Form I-864EZ);
(b) The sponsor must use Form I-864, rather than Form I-864EZ, if the sponsor will be submitting any Forms I-864A (see 9 FAM 601.14-11 above);
(c) Sponsors who use Form I-864 may qualify based only upon their own income and/or assets if either or both are sufficient to reach the income requirement. If the sponsor’s combined income and assets are not sufficient to meet the governing threshold, the sponsor may include the income and or/assets of another household member if the household member:
(i) Is at least 18 years of age;
(ii) Is included in the calculation of the household size;
(iii) Has the same principal residence as the sponsor (or is the sponsor’s spouse); and
(iv) Has completed and signed the Form I-864A;
(d) Federal Tax Return(s):
(i) Whether a sponsor submits Form I-864 or Form I-864EZ, the sponsor must provide a copy or an IRS-generated transcript of the sponsor’s Federal income tax return for the most recent tax year;
(ii) By signing the Form I-864 or Form I-864EZ under the penalty of perjury, a sponsor certifies that the transcript or photocopy is true and correct. This certification meets the statutory requirement of presenting a “certified” copy of the transcript of photocopy. Certification of the returns by the IRS is not necessary, the sponsor’s certification under the penalty of perjury is sufficient; and
(iii) A sponsor who filed a joint tax return with a spouse but is qualifying using only their own individual income must submit evidence of that individual income. For example, the sponsor’s own W-2. Wage and Tax Statement, to reach the income requirement and/or evidence of other income reported to the IRS which can be attributed to them on Form IRS-1099.
(e) Other Evidence of Income:
(i) Total income means before deductions in the sponsor’s tax return for the most recent taxable year should be generally determinative. There is no requirement to determine whether the sponsor would have met 125% (or 100%) of the governing Poverty Guideline before the most recent tax year;
(ii) You, however, may consider other evidence of income (e.g., pay stub(s), or employer letter(s), or both), if:
(A) The sponsor establishes that they were not legally obligated to file a federal income tax return for the most recent tax year
(B) You have determined that the income listed on the Federal tax return for the sponsor’s most recent tax year does not meet the governing threshold
(iii) If a sponsor recently started a new job (that the officer is satisfied will likely continue), the income from the job now meets or exceeds the legal requirement, you may find the Affidavit of Support (AOS) to be sufficient; and
(iv) A properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis. 8 CFR 213a.2(c)(2)(ii)(C), however, permits you to conclude that a Form I-864 is not sufficient, even if the sponsor’s household income meets the Poverty Guideline threshold. For example, if the sponsor’s income is from a job that is merely temporary or seasonal, you might reasonably conclude that the AOS, for that reason, is not sufficient.
(f) Means-Tested Public Benefits Received by the Sponsor:
(i) (U) We and USCIS have determined that, as a matter of policy, the sponsor is not required to disclose their receipt of means-tested public benefits and not consider the fact that a sponsor has received such means-tested public benefits in the past in evaluating a Form I-864 or Form I-864EZ; and
(ii) The sponsor may not include any means-tested public benefits currently being received in calculating the household income. See 9 FAM 601.14-10 above.
(g) Compare Total Household Income with Governing Poverty Guideline:
(i) If the sponsor’s total household income (line 24c of Form I-864 or line 18 of Form I-864EZ) is greater than or equal to the governing Poverty Guideline threshold, the sponsor does not need to show evidence of assets and does not require a joint sponsor. In this case, you may move to part 8 of Form I-864 or Part 6 of Form I-864EZ;
(ii) If Form I-864EZ does not demonstrate means to maintain the required income, you may choose to request that the applicant submit a new Form I-864 from the sponsor (if the applicant seeks to qualify based on showing “significant assets”) or submit a sufficient Form I-864 from a joint sponsor. This request for evidence should go to the applicant, not to the sponsor.
(iii) If a Form I-864 does not demonstrate means to maintain the required income, you should consider the assets listed in Part 7 of the form.
f. Part 7 of Form I-864: Use of Assets to Supplement Sponsor’s Income:
(1) If a sponsor cannot meet the Poverty Guideline requirement based upon total household income listed on line 24c, they may show evidence of assets owned by the sponsor and/or members of the sponsor’s household that are available to support the sponsored immigrant(s) and can be readily converted into cash within 1 year.
(2) For assets of the intending immigrant and/or household member to be considered, the household member must complete and sign Form I-864A.
(3) You should check to make sure that the Form I-864A is completed and signed by the sponsor and the household member.
(4) Evidence of the sponsor’s assets should be attached to the Form I-864. Evidence of the principal sponsored immigrant’s and/or household member assets should be attached to Form I-864A. See 9 FAM 601.14-6 above.
g. Part 8 of Form I-864 or Part 6 of Form I-864EZ Sponsor’s Contract:
(1) Part 8 of Form I-864 or part 6 of Form I-864EZ constitutes the bulk of contractual provisions and outlines the purpose of Form I-864, AOS under Section 213A of the Act, which is to overcome the public charge grounds of ineligibility. It includes:
(a) Notice of Address requirements (the sponsor must notify Department of Homeland Security (DHS) of the sponsor’s new address within 30 days);
(b) Means-tested Public Benefit Prohibitions and Exceptions;
(c) Consideration of sponsor’s income in determining eligibility for benefits;
(d) Civil action to enforce the affidavit; and
(e) It requires certification under the penalty of perjury that the sponsor is aware of the legal ramifications of being a sponsor under section 213A of the Act.
(2) Once signed, the concluding provisions satisfy the statutory requirement that the sponsor must make written statement under the penalty of perjury indicating that the copies of the Federal income tax returns submitted with the AOS are true copies of the returns filed with the Internal Revenue Service.
(3) A photocopy of the signed Form I-864 may be submitted for each spouse and/or child of the principal beneficiary of the adjustment of status application. Copies of supporting documentation are not required.
h. Part 9 of Form I-864 Preparer Information: If someone other than the sponsor prepares the form on the sponsor’s behalf, the preparer must complete and sign Part 9 of the Form I-864. The preparer’s signature is in addition to the sponsor’s signature and does not replace the sponsor’s obligation to sign the affidavit of support.
i. Consular Posts/U.S. Citizenship and Immigration Services (USCIS) Completion of “Agency Use Only” Box: In adjustment cases adjudicated by consular sections/USCIS, you must complete the “agency Use Only” box on the first page of the Form I-864 or Form I-864EZ. If the petitioner sponsor does not qualify, you should check the box “Does not meet.” There must be in the file another Form I-864 that meets the requirements from a joint sponsor for the applicant to be approved. In such a case you must check the “Meets” box, and then sign, date, and note the post code for location.
j. Verification of Information:
(1) The U.S. Government may pursue verification of any information provided on or with Form I-864, Form I-864EZ, Form I-864A (e.g., employment, income, and/or assets) with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration. If the Department finds that a sponsor, joint sponsor, substitute sponsor, or household member has concealed or misrepresented material facts concerning income, household size, or other material facts, we will conclude that the Affidavit of Support is not sufficient to establish that the sponsored immigrant is not likely to become a public charge.
(2) In this situation, the sponsor, joint sponsor, or substitute sponsor may be liable for criminal prosecution under the general statutes relating to the submission of fraudulent immigration documents. Failure of the sponsor, joint sponsor, or substitute sponsor to provide adequate evidence of income and/or assets will result in the denial of the application for adjustment to lawful permanent residence status.
9 FAM 601.14-14 Accepting form I-864W Request for Exemption for Intending Immigrant’s Affidavit of Support When Alien Can Demonstrate 40 Quarters of Work Under SSA
a. As previously stated, you must waive the Form I-864 requirement if the alien can demonstrate 40 quarters of earnings under the Social Security Act. Any individual seeking to demonstrate the number of quarters they have earned may request a Social Security earnings statement from the Social Security Administration, which shows income reported, years worked, and whether the applicant has earned 40 quarters (also known as “credits”) and therefore qualifies for benefits.
b. If the applicant qualifies for a waiver of the Form I-864 affidavit requirement, they must still complete a Form I-864W. Form I-864W is the applicant’s signed statement that they have earned (or can be credited with) 40 quarters (credits) of coverage under the Social Security Act (SSA). The applicant must include SSA earnings statements with their completed Form I-864W. Applicants may not count any quarters during which they received a means-tested public benefit. An applicant may be credited with all the qualifying quarters of coverage earned by their spouse during their marriage if the applicant remains married to that spouse, or the spouse is deceased. NVC performs a review of documents, including AOS, for most consular sections. In those instances where the petitioner or the sponsor notifies NVC that they wish to use the Social Security quarters provision in lieu of a Form I-864, NVC requires submission of the SSA earnings statement as described above before qualifying the case for forwarding to the consular section.
9 FAM 601.14-15 Poverty Income Guidelines
a. In General:
(1) Pursuant to 42 U.S.C. 9902(2) the Secretary of the Department of Health and Human Services (HHS) updates the poverty guidelines annually.
(2) HHS publishes annual updates of the Poverty Guidelines, adjusting them based on the Consumer Price Index for all Urban Consumers.
(3) The guidelines are rounded and adjusted to standardize the differences between family sizes. These guidelines apply to all persons of all ages in the family/household.
(4) Applicants are required to have an AOS filed on their behalf and whose sponsor cannot meet the applicable minimum poverty guideline threshold are ineligible for an IV under INA 212(a)(4)(C).
(6) Applicability: You must utilize the poverty guidelines that were in place at the time of I-864/I-864EZ submission. For example: an I-864 submitted on or after March 1, 2018 but before January 2019, must use the 2018 guidelines.
b. Annual Guidelines: For the 2021 poverty guidelines see HHS Poverty Guidelines for 2021. For previous years guidelines see Prior HHS Poverty Guidelines and Federal Register References.
9 FAM 601.14-16 Checklist for Preparing the Affidavit of Support
a. Documents must be submitted in the following order:
(1) Petitioner's Documents—Form I-864. The petitioner in family-based immigrants, or the employment-based immigrants where a relative filed the petition or has ownership interest (5% or more) in the petitioning entity, or a joint sponsor must complete a Form I-864.
(2) For Form I-864, all pages in correct order, 1, 2, 3, 4, 5, 6, 7, 8, 9 10, 11 and 12 are stapled together; for Form I-864EZ; 1, 2 3 4, 5, 6, and 7 are stapled together. See instructions for Form I-864-EZ.
(3) Each page filled out completely.
(4) Part 8 (Form I-864) or Part 6 (Form I-864EZ) signed by the petitioner (for employment cases, by the relative) (not required to be notarized).
(5) Photocopy or Internal Revenue Service (IRS) transcript of the most recent Federal tax return with all supporting schedules that the sponsor had filed before the time of Affidavit of Support (AOS) signing. The return must have all pages in the correct order and must be stapled together.
(6) If the sponsor did not have to file a tax return, attach a written explanation and a copy of the instructions from the IRS publication that shows you was not obligated to file. (For information on most income tax obligations visit the IRS Web site.)
(7) If assets are needed to meet the minimum income requirement:
(a) Amount of assets required: The total net value of all assets must equal at least five times the difference between the sponsor’s total household income and the minimum income requirement of the current year for the sponsor to qualify by using asset.
Example for a Household of 4:
125% Poverty Guideline (48 Contiguous States, District of Columbia, Puerto Rico, the U.S. Virgin Islands, and Guam)
Multiply by 5
Minimum Required Net Value of Assets
There are two exceptions, however: If the applicant intends to immigrate as a spouse of a U.S. citizen or the child of a U.S. citizen (including a Hague Convention adoptee but not an orphan) who will not become a citizen under section 320 of the Act (except in the case of an IR-4 immigrant orphan), the “significant assets” requirement will be satisfied if the assets equal three times, rather than five times, the difference between the applicable income threshold and the actual household income.
Example for a Household size of 4:
125% Poverty Guideline
Multiply by 3
Minimum Required Net Value of Assets
If the applicant intends to immigrate as an IR-4 immigrant (orphans coming to the United States for adoption), the parents’ assets only need to equal or exceed the difference between the actual household income and the applicable income threshold.
Example for a Household size of 4:
125% Poverty Guideline
Difference (Minimum Required Net Value of Assets)
(b) Evidence of ownership, location, and the value of each asset;
(c) Evidence of liens, mortgages, and liabilities for each asset (if any); and
(d) When required, evidence of current employment or self-employment, such as a recent pay statement or a statement from your employer on business stationery, showing the beginning date of employment, type of work performed, and salary or wages paid.
b. Joint Sponsors (if required):
(1) Form I-864:
(a) Must be completed by a joint sponsor if the petitioner or substitute sponsor cannot demonstrate the ability to maintain a household income of at least 125 percent (or 100 percent when applicable of the Federal Poverty Guidelines).
(b) The intending immigrant may meet the Affidavit of Support requirement by obtaining a joint sponsor who is willing to accept joint and several liability with the principal sponsor as to the obligation to provide support to the sponsored alien during the period that the Affidavit is enforceable.
(c) 8 CFR 213a(2)(iii)(C) allow but do not require two joint sponsors per family unit intending to immigrate based on the same petition.
(2) The joint sponsor:
(a) Must meet the same qualifications as the petitioner and submit the same documentation as noted in paragraph a, Petitioner’s Documents above.
(b) The petitioner must also submit a Form I-864.
c. Household Members Whose Income and Assets are to be considered:
(1) A separate Form I-864A, Contract Between Sponsor and Household Member, must be completed for each household member whose income and assets are to be considered.
(2) Each page must be filled out completely and stapled together.
(3) All tax, employment, and asset documents must be assembled in the same manner as the sponsor's (see above) and attached to the correct Form I-864A, Contract Between Sponsor and Household Member.
(4) Part 1 Information on the Household Member.
(5) Part 2 Your (the household Member's) Relationship to the Sponsor must be completed by sponsor.
(6) Part 3 Your (the Household Member's) Employment and Income must be completed by the household member.
d. Documents for the Principal Immigrant and Accompanying Dependents:
(1) Principal Applicant:
(a) Original or copy of Form I-864 and Form I-864A, Contract Between Sponsor and Household Member (if needed); must be signed (not required to be notarized).
(b) The sponsor's most recent Federal income tax return filed before the time of Form I-864 signing is needed for each principal immigrant.
(2) Accompanying Dependents:
(a) Accompanying dependents, if listed on the original Form I-864 affidavit of support submitted for the principal applicant and accompanying the principal applicant (traveling and entering the United States at the same time) may submit and travel together on one complete set of signed documents (not required to be notarized): Form I-864 and Form I-864A, Contract Between Sponsor and Household Member, if needed.
(b) Accompanying dependents, if travelling together with the principal applicant, may submit copies of the principal's Form I-864 and Form I-864A (photocopied signatures are acceptable.)
(c) Copies of supporting documents are not required for dependents applying for visas or adjustment of status together with the principal immigrant.
(3) Follow to join dependents (travelling separately from the principal applicant and entering after the principal or following to join a principal applicant who has adjusted status in the United States) must submit a signed affidavit of support from the sponsor, along with a complete set of supporting documents. A photocopy of the affidavit of support previously submitted by the principal applicant is acceptable.