THE ABC'S OF IMMIGRATION - INADMISSIBILITY - PUBLIC  CHARGE - AFFIDAVITS OF SUPPORT

For many immigrants seeking entry to the United States , the government will require proof that they will have adequate financial resources to support themselves so that they not become a “public charge” after entering the US .  A provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created a new Affidavit of Support, Form I-864, which creates a legal obligation on behalf of the person who signs it.  This legal obligation means that the sponsored immigrant, the federal government or any state government can sue the sponsor if the sponsor fails to support the immigrant.  The Affidavit is enforceable either until the immigrant naturalizes or has worked for ten years.

Affidavits of Support are required in all family based immigration cases and in employment-based cases where the immigrant is related to the owner of the petitioning company.  To sign an Affidavit of Support, the person must be a US citizen or permanent resident, at least 18 years old, domiciled in the US , and meet certain income requirements.  Because the Affidavit of Support is signed by the person who filed the immigrant petition, the first two requirements are seldom an issue. 

The key to the Affidavit of Support is the annual poverty level, determined by the Department of Health and Human Services. Sponsors must earn at least 125% of the poverty level, except for someone on military active duty who is petitioning for a spouse or child.  They must be able to show income equal only to the poverty level.  The poverty level varies with the number of members of a household.  The sponsor’s income must be above the poverty level for the size of the household plus all sponsored immigrants.  Along with the Affidavit of Support, the sponsor must include tax returns for the last three years.  If the income shown on the tax returns is not sufficient, evidence of other assets can be used.  If assets, such as savings accounts, stocks, bonds and real estate are used, the cash value of these assets must equal five times the difference between the sponsor’s income and the level required for the Affidavit of Support. 

In the event the primary sponsor does not earn enough, a co-sponsor can be used.  This is done on Form I-864A.  The co-sponsor must be a family member of the primary sponsor by birth, marriage, or adoption.  The co-sponsor becomes legally obligated to provide the same support as the primary sponsor and the obligation does not end until the immigrant’s naturalization or until the immigrant has worked for ten years.

In meeting the poverty guideline, sponsors can rely on all sources of income.  In the event that income is not sufficient to meet the income level required, the sponsor can rely on assets.  The sponsor must be actually able to get cash out of the assets for the support of the immigrant and the assets must be convertible into cash within one year.

Another important issue in filing the Affidavit of Support is the domicile of the sponsor.  The sponsor must be domiciled in the US .  “Domicile” is where a person has his or her primary residence and where he or she plans to remain for the foreseeable future.  In some cases, a person who is overseas will be able to establish a US domicile.  To do so, the sponsor will have to show that their time out of the US will be temporary and show continuing ties to the US such as, for example, bank accounts, voting in US elections, paying taxes, or maintaining property.  In many cases, especially involving marriage, the US citizen may have been residing abroad with their spouse.  If the US citizen has not maintained a US domicile, there are steps they can take to reestablish domicile in the US .  These include securing a US residence, preparing to enroll children in US schools and relinquishing residency in any other country.  The US citizen does not have to enter the US before the foreign spouse, but does have to establish to the consular officer that they plan to make the US their domicile. 

In addition to all of the other obligations, sponsors and co-sponsors must keep the INS informed of all changes of addresses. Fines can be imposed for failing to do so.