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What Are My Financial Obligations as the Sponsor of a Family-Based Immigrant?

Since 1997, all sponsors of family-based immigrants, and all employment-based sponsors where the immigrant is related to the owners of the petitioning company, must execute a sworn, notarized Affidavit of Support, on Form I-864. This requirement is set forth at Section 213A of the Immigration & Nationality Act, adding specificity to the older, more general requirement at Section 212(a)(4) that a person is ineligible to immigrate if that person is deemed likely to become a “public charge” – someone who will be financially dependent on the state.

Form I-864 is a legally enforceable contract, binding the sponsor to support the immigrant financially until the sponsored immigrant completes 40 quarters of U.S. employment per Social Security Administration records (10 years of documented work), or else the sponsored immigrant becomes a naturalized U.S. citizen, abandons or loses Lawful Permanent Resident status, dies, or departs the U.S. permanently within that time. This only an issue if the immigrant cannot support him- or herself financially, but the obligation can be prolonged by a sponsored immigrant who chooses not to work and not to apply for naturalization.

If the sponsor fails to support the immigrant, and the immigrant fails to support him- or herself, the sponsor can be sued by the immigrant, or by any government agency or private entity that provides “means-tested” benefits* to the immigrant, to enforce the financial support requirement. This obligation remains enforceable even if the sponsor divorces the immigrant or dies - the sponsor’s estate can be held liable for supporting the immigrant, unless the obligation is assumed by a surviving family member. If the sponsor and immigrant divorce, then amounts paid as alimony by the sponsor count toward this financial support obligation under INA 213A, but amounts paid as child support do not count toward this obligation. A sponsor must show that his or her annual income meets at least 125% of the current federal poverty limit for the household size, determined annually by the U.S. Department of Health and Human Services. Family size includes the sponsor, the sponsor's dependents, the immigrant(s) currently being sponsored, and any immigrants previously sponsored on Form I-864. For FY 2011, the poverty limit for a family of 2 people in the lower 48 states and the District of Columbia is $14,710, so at present most sponsors of a spouse will need to show annual income of at least $18,388 in order to qualify without support from a joint sponsor. Sponsors who are active members of the US Armed Forces only need to meet 100% of the poverty limit.

Members of the sponsor's household may have their incomes added in to the total household income, to supplement the sponsor's income, if that household member signs a contract, Form I-864A. This includes the sponsored immigrant him- or herself, who may act a joint sponsor and contribute his or her own income to that of the household in order to meet the required income level.

Assets can be substituted for income at a ratio of 5:1, if the assets are readily convertible to cash within a year. The amount of liquid or readily convertible assets must be at least 5 times the difference between the sponsor's income and 125% of the poverty limit for the household size. Liquid assets like bank deposits, money market accounts, mutual funds, stocks and bonds are best for this purpose, and evidence of ownership will be required if assets are to be used. Real property can be used to meet the asset requirements if it can be sold within a year, but only if it is not the primary U.S. residence of the sponsor. In the Adjustment of Status context for an applicant already present in the United States, USCIS will not accept the value of a primary residence to meet the amount threshold for assets, because a sponsor cannot be expected to sell the family home in order to support the sponsored immigrant. Where the US sponsor has been living abroad, and will move back to the United States, the sponsor may use as assets the value of a home abroad that would be sold in order to move back to the United States.

A family member who petitions for an intending immigrant must act as the primary sponsor and must complete Form I-864, whether or not the sponsor meets the income/assets requirement. 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. Any sponsor or joint sponsor must be domiciled in the United States. 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 limit for the relevant family size. 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 Federal income tax return, preferably with an IRS transcript of that tax return. For employed sponsors who meet the income requirements, a W-2 and income tax return for the most recent tax year is sufficient proof of income. Where the sponsor does not have a W-2 as a salaried employee, the most recent three (3) years of income tax returns must be provided with Form I-864.

Prospective immigrants who are eligible to apply as a battered spouse or child, or as a winner of the Diversity Visa Lottery, do not need to meet the I-864 affidavit of support requirements. To meet the public charge test, lottery winners and VAWA special immigrants should use the old Form I-134 Affidavit of Support, or submit other financial documentation to meet the public charge requirement.

*A note about means-tested public benefits: All immigrants are barred from receiving any federal means-tested public benefit for a period of five years after becoming a permanent resident. Such benefits include Supplemental Security Income, Medicaid, Food Stamps, Temporary Assistance to Needy Families, Aid to Families with Dependent Children, or the federal Children’s Health Insurance Program. As noted above, the sponsor’s support obligation terminates by law once the immigrant has worked for 40 qualifying quarters, but no quarter qualifies during which the immigrant receives any of

the six federal means-tested benefits. The definition of a “federal means-tested public benefit” in this context does NOT include WIC or Nutrition Program for the Elderly.

**If you move: Similar to the requirements for a sponsored immigrant, all U.S. sponsors who execute an I-864 Affidavit of Support are required to notify USCIS of any address change within 30 days of a move.

Karin Wolman is admitted to the bar in the State of New York.
Her practice is limited to U.S. Immigration & Nationality law.

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