FORM I-864: ALTERNATIVES TO MEETING FINANCIAL REQUIREMENTS FOR LEGAL RESIDENCE
PUBLIC CHARGE DETERMINATION
The Form I-864, Affidavit of Support, is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most family-based and some employment-based immigrant visa or adjustment cases. Failure to meet the I-864 requirements may cause the U.S. Consulate or USCIS to determine you will likely become a “public charge,” i.e. become primarily dependent on the U.S. government for subsistence. This ground of inadmissibility bars you from receiving an immigrant visa or green card.
The petitioner who filed the immigrant petition on your behalf must also be your sponsor who files a Form I-864 to support your immigrant visa or adjustment application. When the petitioner does not earn enough income to sponsor you, there are alternatives to meeting the financial requirement.
What income requirement must the sponsor meet?
To qualify as a sponsor, most petitioners must show their current annual household income is at least 125% of the federal poverty level for their household size.
Sponsors who are on active duty in the U.S. Armed Forces, including the Army, Marines, Navy, Air Force, or Coast Guard, and are sponsoring a spouse or minor child, only need to earn an income of 100% of the federal poverty level for their household size. (This exception does not apply to joint or substitute sponsors).
The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.
The household size includes:
the sponsor’s spouse (even if they are separated or live separately)
the sponsor’s unmarried children under 21 (regardless of where they live)
any person listed as a dependent on the sponsor’s last tax return
the intending (sponsored) immigrant
any derivative beneficiaries (i.e. those without a separate I-130 petition being filed on their behalf) who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant)
any immigrants previously sponsored with Form I-864 (or Form I-864 EZ), Affidavit of Support.
What are the alternatives if the sponsor does not earn enough income?
There are situations in which the petitioner does not earn enough income to sponsor the immigrant. Examples include retired U.S. citizen parents, U.S. citizen spouses who are still attending school and do not work full time, and petitioners with large household sizes.
When the petitioner does not qualify financially as a sponsor, there are other ways to meet the financial requirement for permanent residence and avoid a public charge determination.
1. The Sponsor May Get a Joint Sponsor to File a Separate Form I-864
A joint sponsor may submit a separate Form I-864, Affidavit of Support, when the sponsor does not earn sufficient income. A joint sponsor does not have to be related to the sponsor or the intending immigrant. But like the sponsor, the joint sponsor must:
Be a U.S. citizen or national or a permanent resident.
Be at least 18 years old.
Be domiciled (live) in the United States or a territory or possession. (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status).
Meet all of the financial requirements.
Joint sponsors must meet the income threshold for their household size, independently. They cannot combine their income with the sponsor’s or another joint sponsor’s income to satisfy the requirement.
Intending immigrants are allowed only one joint sponsor. In family-based preference category cases including a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.
2. The Sponsor May Use the Intending Immigrant’s Income to Overcome the Income Shortage (in Limited Cases)
The sponsor may include the income from the intending immigrant, if that income will continue from the same source after immigration. The intending immigrant must also currently reside with the sponsor, unless he or she is sponsor’s spouse.
The sponsored immigrant whose income is being used to meet the income requirement does not need to submit a Form I-864A, Contract Between Sponsor and Household Member, unless a spouse and/or children is immigrating with the sponsored immigrant. In this instance, the I-864A relates to support for the spouse and/or children.
3. The Sponsor May Include Income from Certain Relatives or Dependents
Sponsors may include income from U.S. citizen or permanent resident relatives (spouse, adult child, parent, or sibling) living in their household, or U.S. citizen or permanent resident dependents claimed in their most recent federal income tax return (regardless of where they live). The relative or dependent must also earn income that meets the federal poverty level for their household size.
The relative or dependent must submit a Form I-864A, Contract Between Sponsor and Household Member, agreeing to be jointly responsible for the sponsored immigrant. They must also be at least 18 years old when they sign the I-864A.
4. The Sponsor May Supplement Income With Assets
To supplement income, the sponsor may use the value of assets that can be converted into cash within one year and without considerable hardship or financial loss to the owner. Examples are money in a bank account, stocks or bonds, the net value of a second automobile, and the net value of a home or other real estate.
The assets used must be owned by (1) the sponsor, (2) the sponsor’s U.S. citizen or permanent resident relative (spouse, adult child, parent, or sibling) who resides with the sponsor and submits a Form I-864A , Contract Between Sponsor and Household Member, or (3) the intending immigrant (regardless of where he or she lives).
The value of the assets must be at least five times the difference between the sponsor’s total household income and the current federal poverty guideline for his or her household size. The exception is when a U.S. citizen is sponsoring a spouse or minor child. In that case, the assets must total at least three times the difference.
The sponsor must include evidence of the value of the assets used, such as a bank account record showing the money has been on deposit for the last 12 months, and real estate appraisals with evidence of the sum of all loans secured by a mortgage, trust deed, or any other lien on the property.
USCIS or the NVC May Issue a Request for Evidence on the I-864 Requirement
U.S. Citizenship & Immigration Services (USCIS), which adjudicates I-485, adjustment to permanent residence applications, may issue a Request for Evidence when it determines the I-864 is deficient. Currently, the National Benefits Center (NBC) — usually through contract employees – do the initial screening of the I-864 based on a checklist.
The National Visa Center (NVC), which processes immigrant visa applications before they are forwarded to the U.S. Consulate abroad, may also issue RFEs concerning the I-864.
When an RFE is issued, USCIS and the NVC stops processing the case. Interim benefits, such as employment authorization and advance parole for I-485 applicants, are also delayed until an RFE response is submitted.
If the NBC determines the response is inadequate, it will not forward the case to the USCIS Field Office for adjudication and will deny the I-485 due to failure to provide an adequate response. Similarly, the NVC may refuse to forward the immigrant visa case to the U.S. Consulate if it determines the RFE response is insufficient.
At the adjustment interview, USCIS may ask for current evidence that the financial requirement is met. The U.S. Consulate may also ask for additional financial evidence at the immigrant visa interview. Nevertheless, the proper submission of required forms and documents and timely, full responses to RFEs permit the case to move forward.
Can an RFE Be Issued in Error?
RFEs are issued for a variety of legitimate reasons, such as lack of evidence of the sponsor’s current income, missing federal tax return and W2s for the most recent tax year, and mistakes in filling out the I-864. But some RFEs are issued in error, such as when USCIS or the NVC overlooks evidence that the income requirement is met.
An RFE can be issued in error when the sponsor’s Current Individual Annual Income meets the income requirement, but the total income for the most recent tax year is less than the federal poverty level for the household size. Such RFEs ask for evidence of assets or a separate I-864 from a joint sponsor to overcome the perceived income shortage.
The regulations and USCIS policy, however, state that the sponsor’s current annual income – not income on the federal tax return for the most recent tax year – is what really counts. Current income refers to the total earnings the sponsor expects to earn from the start to the end of the calendar year. Income includes both taxable and nontaxable income, such as certain federal or state benefits (e.g. social security retirement or disability), as well as unemployment or workers compensation.
The sponsor should submit evidence of current income (e.g. pay statements for the last six months and current letter of employment), even though this is not required initial evidence.
Contact Us Today! We can help you meet the financial requirements for permanent residence and avoid a public charge determination. The best time to speak with an attorney is before you file for the immigrant visa or for adjustment, not after you receive an RFE.
Our experienced attorneys can evaluate whether the sponsor meets the income requirements and, if he or she does not, recommend alternatives to make up for the shortfall.