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THE
ABC'S OF IMMIGRATION - AFFIDAVITS OF SUPPORT
This week, the House voted to approve
H.R. 1892, the Family Sponsor Immigration Act of 2001 by an
overwhelming margin of 404 to 3.
The bill, which passed the Senate by unanimous consent in
December, has been sent to President Bush, who is expected to sign it.
This bill amends the Immigration and Nationality Act to allow a
new sponsor for an affidavit of support when the original petitioner
has died. Until now, in
most cases, when this occurred, the application for immigration would
have to be abandoned because the petitioner in the I-130 would not be
able to complete an affidavit of support.
H.R. 1892 allows close family members, defined as (a spouse,
parent, mother-in-law, father-in-law, sibling, child (if at least 18
years of age), son, daughter, son-in-law, daughter-in-law,
sister-in-law, brother-in-law, grandparent, or grandchild) to file the
affidavit of support.
In light of this good news, we decided to revisit the issue of
affidavits of support.
For many applicants seeking entry to the United States, the government
will require proof that the alien will have adequate financial
resources to support themselves while in America.
This is the case for certain non-immigrant visas, particularly
those where the applicant is not permitted to work while in the US.
Form I-134 Affidavit of Support is often used in this
situation. People seeking
to immigrate to the US must demonstrate that they will 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 is much more extensive than the I-134, and creates a
legal obligation on behalf of the person who signs it.
This legal obligation means that the sponsored immigrants, 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 alien is related to the
owner of the petitioning company.
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 sponsors who are on military active duty, who 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.
In the event the primary sponsor does not earn enough, they can get a
co-sponsor. This is done
on Form I-864A. The
co-sponsor must be a family member, 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. It
must be possible to use the assets for the support of the immigrant,
and the assets must be convertible into cash within one year.
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.
See 2004 federal poverty guidelines
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