Affidavit of Support by Arizona Immigration
Lawyer John Messing
In General
Types of Welfare Benefits Covered
Nature of the Obligation
Sponsors
Income
Requirements and the Poverty Guidelines
Legal
Nature of the Obligation
Joint Sponsors
Substitute Sponsors
Asset Usage
Asset Types
Conversion of net asset values to Affidavit of Support income equivalents
In General
An Affidavit of Support is a contract that protects the US Government
by requiring a sponsor of an intending immigrant to show through information
submitted on an appropriate version of form
I-864 that the sponsor has enough income and/or assets to maintain
the intending immigrant(s) and the rest of the sponsor's household at
the applicable level set forth in the
Federal Poverty Guidelines. By signing the form I-864, a sponsor agrees
to support the intending immigrant(s) named in the form. Also, in the
event that an intending immigrant does receive one of the designated Federal,
State or local welfare benefits, the agency providing the benefit may
request a sponsor to repay the cost and can sue if the cost of the benefits
provided is not repaid.
Affidavits of support are used in adjustment
of status cases before USCIS and the Immigration courts, and in consular
processing of immigration petitions. They are a prerequisite to obtaining
permanent residency.
Types of Welfare Benefits Covered
The following welfare benefits are subject to reimbursement from a sponsor
if used by an intending immigrant and cannot be included in an Affidavit
of Support as income of a sponsor.
- Food stamps
- Supplemental Security Income (SSI)
- Medicaid
- Temporary Assistance for Needy Families (TANF)
- State Child Health Insurance Program (CHIP)
The following types of assistance are not considered means tested public
benefits and are not subject to reimbursement from a sponsor:
- Emergency Medicaid
- School lunches
- Immunizations and treatment for communicable diseases
- Student assistance to attend colleges and institutions of higher learning
- Some kinds of foster care or adoption assistance
- Job training programs
- Head start
- Short-term, non-cash emergency relief
Tucson Family Based Adjustment of Status Attorney: Messing
Law Offices
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Nature of the Obligation
In most family based petitions and certain
employment based petitions
where a spouse, parent, son, daughter, or sibling of the petitioned employee
has 5% or more of ownership interest in the petitioning employer, an Affidavit
of Support must also be filed which covers repayment of the specific welfare
entitlements until citizenship is attained or 40 quarters of social security
wages has been earned by the intending immigrant. In certain cases, the
work of a spouse or parent can be included as qualifying quarters. An
intending immigrant who has been working for 40 quarters or more lawfully
prior to filing the immigrant petition files a special form that is used
in place of the Affidavit of Support. (I-864W) An Affidavit of Support
obligation ends if the sponsor or the sponsored immigrant dies or if the
sponsored immigrant ceases to be a lawful permanent resident and departs
the United States. Significantly, however, divorce of a spouse who is
an intending immigrant does not end a sponsorship obligation previously
undertaken.
Filing an acceptable Affidavit of Support does not mean that the immigration
official or consular officer will not or cannot require other proof of
financial ability of an intending immigrant, but it is a necessary starting
place.
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Sponsors
Key to the Affidavit of Support is the notion of a sponsor. A sponsor is usually the same person who files the petition for alien relative (form I-130) or other
basis for permanent residency. For example, if a US citizen files on behalf of his or her spouse, the US citizen will also usually be the sponsor under the Affidavit
of Support as well. Sponsors must be US citizens or permanent residents over the age of 18 who maintain a domicile in the United States, including a territory or possession of the United States.
The forms for Affidavits of Support are very technical and can be hard
to understand in the particulars, including which version of the form
I-864 to use in a particular situation. If you want to discuss filing
a qualifying petition for or from a relative, company, employee or investor,
contact Messing Law Offices for a free seven minute
telephonic consultation or to schedule an initial consultation.
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Income Requirements and the Poverty Guidelines
The Government also requires proof that the promise to reimburse welfare
benefits of an immigrant is legally enforceable against the sponsor(s).
One way of showing credit worthiness is through the reporting of a sponsor's
current employment. To this end, a sponsor must provide a copy of the
tax return and W-2 or 1099 proof of income for the most recent taxable
year and provide adjusted gross income figures for the previous two years
before that. Optionally, the sponsor can attach the tax returns and W-2
or 1099 forms for all three previous years and/or provide a letter of
employment from a current employer or check stubs for the past 6 months
showing the level of pay.
In addition, the sponsor must consult the Poverty Guidelines, which are updated
periodically, and which display a table showing income levels per household
size that must be met in order to qualify as a sponsor based upon household
income. Click the link to view the
most current USCIS Poverty Guidelines.
Special Poverty Guidelines apply to both Alaska and Hawaii, but all other
areas are lumped together under a single Poverty Guideline. Sponsors
on active duty in the U.S. armed forces who are sponsoring a wife, husband,
or child must show 100% of the Poverty
Guidelines; all other sponsors must establish income at the rate of
125%. (Affidavit of Support requirements for fiance visas may be
different, in that only a 100% rate of income is required, and a different
form, the I-134, is required.) The Guidelines require an increasing level
of qualifying income as a household's size increases. Therefore it is
essential to correctly determine the number of dependents in the household
in accordance with the affidavit of support instructions in order properly
to apply the Poverty Guidelines to a particular sponsor and his or her
household. To obtain a quick idea of whether a sponsor's income may be
sufficient under the Poverty Guidelines, consult the Affidavit
of Support Calculator™, which is a free online service of Messing
Law Offices.
Problems arise when the sponsor's income alone is not sufficient to meet
the requirements of the Poverty Guidelines. The good news is that there
are legally recognized alternatives for meeting Affidavit of Support requirements,
but they can be very difficult to understand and apply correctly (and
they do not necessarily apply to fiance visas). It is important to understand
the process fully, select the proper form(s), follow the instructions
correctly in applying income figures or asset allocations, and appropriately
determine the number of household members to include in the different
possible alternative strategies. For assistance in beginning to understand
the process and constraints, consult Messing Law Offices' free Affidavit
of Support Calculator™.
If a sponsor's income alone is insufficient, it is possible in certain
situations to add the additional income of the adjusting applicant and
other household members, in order to increase the available income amount.
Consult Messing Law Offices' free Affidavit of Support Calculator™.
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Legal Nature of the Obligation
An Affidavit of Support is a contract between the U.S. Government and
any sponsor, with an included, intending immigrant as a further included
beneficiary with rights to enforce the contract. A sponsor specifically
promises to provide the intending immigrant and family any support necessary
to maintain an income that is the
appropriate percentage level specified in the Poverty Guidelines , which
an included person can expressly sue to enforce.
A government agency can sue a sponsor to obtain any covered benefits
paid to the intending immigrant who is a beneficiary of an Affidavit of
Support.
A sponsor expressly agrees to submit to the personal jurisdiction of
any Federal or State court that has subject matter jurisdiction of a lawsuit
against the sponsor to enforce my obligations of the Affidavit of Support.
The Affidavit of Support enables use of any permitted procedures for
enforcing or collecting a judgment of a court of law based on the Affidavit
of Support obligation, which may require payment of collection costs,
including attorney fees.
Affidavit of Support obligations have been enforced in the federal courts.
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Joint Sponsors
Another technique is to include a joint sponsor, whose income is also calculated
according to the Poverty
Guidelines, but in that case, one should count the household members
of the joint sponsor's household to the number of persons being sponsored
to arrive at the requisite level of income needed for the joint sponsor
under the Guidelines. The principal sponsor and joint sponsor must each
meet the age, domicile and citizenship or permanent resident status requirements
before a joint sponsor's participation is acceptable. A joint sponsor need
not also be a relative of either the principal sponsor or the adjusting
individual. Income of a sponsor and of a joint sponsor cannot be pooled
in order to arrive at an income figure that meets the requirements of the
Guidelines. For assistance,
consult Messing Law Offices' free Affidavit of Support Calculator™.
If there are multiple adjusting individuals under a single petition, then it is possible to divide up the number of sponsored individuals between joint sponsors
and have certain ones sponsored by
one joint sponsor and others by a different joint sponsor, up to a maximum of two joint sponsors for each petition for alien relative or family-related employee.
The strategies to employ for filing Affidavits of Support can be complicated
and hard to follow, including which version of the form I-864 applies.
If you want to discuss filing a qualifying petition for or from a relative,
company, employee or investor, contact Messing Law
Offices for a free seven minute telephonic consultation or to schedule
an initial consultation.
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Substitute Sponsors
If a petitioner who filed an I-130 petition for an alien relative dies, another
sponsor can file a substitute Affidavit of Support. Such a substitute
sponsor must in addition to the other requirements of a sponsor also be
related to the intending immigrant as a spouse, parent,mother-in-law,
father-in-law, sibling, child (at least 18 years of age), son, daughter,
son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent,
grandchild or legal guardian. In addition to filing with a substitute
sponsor, the intending immigrant must seek humanitarian reinstatement
of the I-130 petition, which ordinarily terminates on the death of the
I-130 sponsor prior to the grant of permanent residency. Consult Messing Law Offices' free Affidavit of Support Calculator™.
Asset Usage
Another technique to arrive at an acceptable level of income under the Poverty Guidelines is to use assets in addition to or in place of actual household
income earned. This requires highly technical calculations.
Asset Types
Assets of the sponsor or members of the sponsor's houshold can be used
and pooled to meet Affidavit or Support requirements. These can include
savings, stocks, bonds and property. They must be easily convertible into
cash within one year and without considerable hardship or financial loss
to the owner. The net value of a home (value established by a recent licensed
appraisal less liens) can be used. The net value of an automobile cannot
be used unless there is another one that is not being used as a qualifying
asset.
Assets that a sponsor owns abroad, such as real and personal property, can also qualify, under certain conditions, including:
- They must be readily convertible to cash within 12 months
- The applicant must show that he/she can take the money or assets out
of the country where they are located. Many countries have strict controls
over movements of cash or liquid assets across their borders.
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Conversion of net asset values to Affidavit of Support income equivalents
To use the assets with income shortfalls under the Poverty Guidelines, first determine the amount of shortfall (the amount by which the actual income falls below
the required income requirement under the Guidelines).
Next convert the net value of assets to income equivalents.
- If foreign assets are used, the total value of qualifying assets must
equal at least five times the difference.
- Otherwise, for a U.S. citizen who is sponsoring a spouse or minor
child, the total value of qualifying assets must equal at least three
times the difference.
- The affidavit of sponsors of foreign orphans who will acquire citizenship
after admission to the United States need only prove assets in the amount
of the difference between the Poverty Guideline and actual household
income, without a multiple for a conversion factor.
- For all others, the total value of qualifying assets must equal at
least five times the difference.
Finally, add the value of the converted assets to the income figures to determine if the household income requirement under the Poverty Guidelines is met.
The calculations to convert assets to qualifying income levels for Affidavits of Support can be confusing, including which formula applies.
If you want to discuss filing a qualifying petition for or from a relative, company, employee or investor, contact
Messing Law Offices
for a free seven minute telephonic consultation or to schedule an initial consultation.
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Tucson Immigration Lawyer AZ Attorney
At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices for professional Arizona immigration attorney assistance.
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