- EB-1 Immigrant Visas
- EB-2 Visas
- EB-3 Immigrant Visas
- EB-4 Immigrant Visas
- EB-5 Immigrant Investor Visas
- Conditional Residence
- Affidavits of Support
WHAT ARE MY FINANCIAL OBLIGATIONS AS THE SPONSOR OR CO-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 in the law 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 primarily financially dependent on support from the state. The support requirement remains in full force until or unless the sponsored immigrant leaves the United States permanently, becomes a naturalized U.S. citizen, or has worked legally for 40 qualifying quarters – i.e., 10 years of full-time US employment – making contributions to Social Security. Regulations implementing the Public Charge rule were updated most recently in a Final Rule published on September 9, 2022.
The Form I-864, Affidavit of Support, 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 becomes a naturalized U.S. citizen, abandons or loses Lawful Permanent Resident status by remaining outside the U.S., or dies. This only becomes an issue where the sponsored immigrant cannot support themselves financially, but the obligation may be prolonged by a sponsored immigrant who is unable to work, or chooses not to work, and who does not or cannot apply for naturalization.
Conversely, if the sponsored immigrant has held a temporary work visa or other form of legal work authorization, and can prove with a Social Security earnings statement that he or she has already worked 40 qualifying quarters in lawful status at the time of applying for adjustment of status or an immigrant visa, then that documentation may be submitted with Form I-864W, in lieu of an I-864 Affidavit of Support, in order to show compliance with the law at INA 213A.
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 the 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 2023, the poverty limit for a family of 2 people in the lower 48 states and the District of Columbia is $19,720, so at present most sponsors of a spouse – with no children – must show annual income of at least $24,650 (125% of the poverty limit) in order to qualify without support from a joint sponsor. To determine the poverty limit for your household size, add $5,140 for each additional person, up to 8 people. 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 income added to the total household income, to supplement the sponsor’s income, if that household member signs a contract, Form I-864A. The sponsored immigrant may also have their legal income included in the household total in order to meet the required income level, but unlike other contributing household members, the sponsored immigrant is not required to execute Form I-864A.
Assets can be substituted for income at a ratio of 5:1, if the assets are readily convertible to cash within a year [this ratio is 3:1 for spouse of a US citizen]. 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 residence of the US 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 in some cases use as assets the value of a home abroad that would be sold in order to move back to the United States, but this is at the discretion of the US Embassy in question. Use of the primary residence for assets is a bad idea, because even in scenarios where it might be accepted, this is at the government’s discretion.
The family member who petitions for an intending immigrant must be the primary sponsor and must complete & sign Form I-864, whether or not the sponsor meets the income/assets requirement, even if they have no income at all. Other persons can act as joint sponsors IF the primary sponsor does not meet the income requirements and IF the joint sponsors are US citizens or permanent residents, are over age 18 and are living full-time in the US. Any I-864 sponsor or joint sponsor must be domiciled in the United States. Joint sponsors assume all of the same obligations as the sponsor who files the petition. There is no limit on the number of joint sponsors, but each one must meet the income threshold of 125% of the poverty limit for the relevant household size, including their own household plus all sponsored immigrants. To show income, each sponsor must 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 in the form of an IRS income tax return transcript. For employed sponsors who meet the income requirements, a W-2 and IRS tax return transcript for the most recent tax year is sufficient proof of income. Where the sponsor is self-employed or works for multiple entities as an independent contractor, and does not have a W-2 as a salaried employee, then the most recent three (3) years of IRS income tax return transcripts 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 may use the 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 lawful 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 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. This can be done in under 2 minutes, via Form AR-11, Change of Address, on USCIS.gov.