Checklist – Guidelines for Preparing Affidavit of Support Forms –

[Michu]

Checklist – Guidelines for Preparing Affidavit of Support Forms –
I-864, I-864EZ, I-864A, and I-864W
Stand:October 2006


United States Department of State
Bureau of Consular Affairs

Important Notice For Sponsors:
Follow Instructions for Affidavit of Support Forms.

It is very important to follow the detailed instructions included with each form I-864W, I-864EZ, I-864 and I-864Ayou download. These are fillable forms on your computer, and it is preferred that you type the form using CAPITAL letters. After the form is completed on the computer, it must be printed and mailed as instructed. The forms cannot be submitted on your computer.


Some procedures have changed, as highlighted in the Department of Homeland Security, Fact Sheet: Affidavits of Support. Beitrag # 5

Also review the Frequently Asked Questions (FAQ’s). Beitrag # 3-4

Use these guidelines, with the corresponding checklist “boxes” below, when completing and assembling Affidavit of Support forms and documents, to ensure you are completing and submitting all required items.
Affidavit of Support forms that are incomplete or have not been assembled correctly will not be accepted.
(Note: This checklist and guidelines are for your personal reference. You do not need to return it with the completed Affidavit of Support forms and documents.)


Who Needs an Affidavit of Support?
This form is legally required for many family-based and some employment based immigrants to show they have adequate means of support, when planning to immigrate to the U.S. Generally, the following intending immigrants need an Affidavit of Support:

• Applicants for family-based immigrant visas, including certain orphans.
• Applicants for employment-based immigrant visas where a relative filed the immigrant visa
petition or has a 5 percent or greater ownership interest in the business that filed the petition
• Important Note: For detailed explanation regarding who needs an Affidavit of Support, and
who is exempt, see Page 1 of the Instructions for each form: I-864EZ, I-864, I-864A, and Form I-864W. Those who are exempt must complete I-864W.

How to Get Started - Step-by-Step

Step 1 Follow the instruction letter you received from the National Visa Center (NVC).

Step 2 Review this Checklist-Guidelines for Preparing the Affidavit of Support.

Step 3 Review the General Information and FAQ’s.
Step 4 Download the Affidavit of Support forms I-864W , I-864EZ, I-864, and I-864A. Review instructions.

Step 5 Then, first determine whether the new I-864W (exemption form) or I-864EZ (short form) applies to your immigrant situation. If these forms don’t apply then the I-864 is required, as well as I-864A, if applicable.

I. Intending Immigrant’s Affidavit of Support Exemption, Form I-864W

Certain classes of immigrants are exempt from the Affidavit of Support requirement. As a first step in the affidavit of support process, review the I-864W to determine whether the intending immigrant exemption applies. If yes, the I-864 is not required and, the intending immigrant (visa applicant) must file I-864W, Intending Immigrant’s Affidavit of Support Exemption. (See Form I-864W for details.) In making this change, the affidavit of support requirement is eliminated in certain cases—such as:

• Sponsored immigrants who have, or can be credited with, 40 quarters of covered employment.
��As proof, you must attach a signed statement from the person who earned the quarters.

��You must attach an earnings and benefits statement from the Social Security Administration (SSA) showing the number of qualifying quarters he/she has earned.

To make a request to SSA use Form SSA-7004-SM, or in the U.S. call SSA’s toll free number, 1 800-772-1213

• Self-petitioning widow/widowers;
• Battered spouses of U.S. citizens and children of battered spouses of U.S. citizens
• Intending immigrant is a child, who will become a U.S. citizen immediately upon entry under the Child Citizenship Act of 2000 (CCA), meeting certain requirements;

II. Petitioner’s (sponsor) documents: Affidavit of Support, Forms I-864 or I-864EZ

In family-based immigrant cases, the petitioner or the relative who filed the petition must complete the Form I-864 or I-864EZ. The I-864EZ Affidavit of Support is a short form Affidavit of Support to be used by certain petitioning sponsors who rely only upon their own employment to meet the affidavit of support requirements. For employment-based immigrant cases, the person who has ownership interest (5% or more) in the petitioning company should complete the Form I-864. This is true even if a joint sponsor gives an affidavit of support.

��Put all pages in correct order and staple them together
��Fill out each page completely.
��Sign the form. In employment-based cases, the relative must sign (not required to be notarized)

Family Members You are Sponsoring: If the immigrant you are sponsoring is bringing a spouse and/or children to the U.S., all listed on the same petition and you are sponsoring them, and they are either traveling with the immigrant, or within six months of the immigrant’s entry to the U.S., ensure you have listed them on the I-864 and I-864A, if needed. (See I-864 instructions, page 5, for more information.)

You cannot complete the I-864EZ if you are also sponsoring family members, who are listed on the same petition.

Federal Income Tax Return: Include a photocopy or Internal Revenue Service (IRS) transcript* even if you filed electronically, with all supporting schedules and/or W-2s for the most recent federal income tax return. *To request IRS-generated transcripts or copies of your tax return, visit the IRSwebsite.

http://www.irs.gov/

��The return must have all pages in the correct order and stapled together
��If you did not have to file a tax return, attach a written explanation and a copy of the instructions from the IRS publication that shows you were not obligated to file. For general information on income tax obligations, visit the IRSwebsite

http://www.irs.gov/

Income Requirement if you need assets to meet the minimum income requirement:

��Attach evidence of assets (*) with a cash value that equals at least five times the difference between your total household income and the poverty guideline for your household size Example for a household size of 4**:

*125 percent of poverty guideline: $25,000
Sponsor’s income: $18,000
Difference: $7,000
***Multiply by 5: x 5
Minimum required cash value of assets: $35,000

Important Notes:
(*) Sponsors using assets to prove they can support the sponsored immigrant must use Form I-864. They cannot use Form I-864EZ.

(**) The example uses the poverty guidelines for year 2006 where the sponsor is not living in Alaska or Hawaii. Please ensure you consult the governing poverty guideline year for your specific situation.

(***) Sponsors of immediate relative spouses and children of U.S. citizens: Amount of required assets is reduced from five times to three times the difference between the governing poverty guideline and actual household income. Sponsors of orphans who will acquire citizenship after admission to the U.S. need only prove assets in the amount of the difference between the poverty guidelines and actual household income.

Ensure all of the following are included:
��Attach evidence of ownership, location and the value of each asset
��Attach evidence of liens, mortgages and liabilities (if any) for each asset
��Attach additional evidence, when annual income does not meet minimum income
requirements. Evidence of current employment or self-employment includes, a recent pay statement or a statement from your employer on business stationery. The letter from your employer should show the beginning date of employment, type of work you do and how much money you make.


III. Joint Sponsor’s documents (if required)

If a petitioner’s income does not meet the 125% income requirement, a joint sponsor must complete a Form I-864. Note: The petitioner must also submit a Form I-864 and cannot use Form I-864EZ if having a joint sponsor.

��The Joint Sponsor is required to meet the same qualifications as the petitioner and submit the same documentation noted in I. Petitioner’s documents (listed above) including federal income tax return and income requirements
��Proof of U.S. Citizenship or Permanent Resident status

IV Household Member’s documents
You need a separate Form I-864A Contract Between Sponsor and Household Member for each household member whose income and assets are to be considered.

��Each page must be filled out completely and stapled together
��All tax, employment and asset documentation must be assembled in the same manner as in the I. Petitioner’s documents (see above) and attach the Form I-864A
��The Sponsor must complete the appropriate sections (not required to be notarized)
��The household member must complete the appropriate sections (not required to be notarized)

IMPORTANT NOTE: The Affidavit of Support forms are no longer required to be notarized. You should know however, when the signing the Affidavit for Support forms, you certify that the information provided, transcript and/or photocopy of tax documentation is true and correct, under penalty of perjury.

http://travel.state.gov/pdf/I-864Checklist-Guidelines-Final.pdf

Gruss
Michael

[Michu]

Die notwendigen Forms fuer Affidavit of Support (I-864)
I-864P
Poverty Guidelines

http://www.uscis.gov/files/form/I-864p.pdf

I-864
Affidavit of Support

http://www.uscis.gov/files/form/I-864.pdf

I-864A
Affidavit of Support Contract Between Sponsor and Household Member

http://www.uscis.gov/files/form/I-864A.pdf


I-864EZ
Affidavit of Support –New-

http://www.uscis.gov/files/form/I-864EZ.pdf


I-864W
Intending Immigrant's Affidavit of Support Exemption – New -

http://www.uscis.gov/files/form/I-864w.pdf

I-865
Sponsor's Notice of Change of Address

http://www.uscis.gov/files/form/I-865.pdf

Gruss
Michael

[Michu]

General Information & Frequently Asked Questions –
Affidavit of Support Forms (I-864 series forms)

Stand: October 2006


United States Department of State Bureau of Consular Affairs

Overview – Who Needs an Affidavit of Support
The Affidavit of Support is legally required for the petitioning sponsor for many family-based and some employment based immigrants to show the intending immigrant will have adequate means of support, when planning to immigrate to the U.S. The purpose of the process is to prove that the intending immigrant has adequate means of financial support and is unlikely to become a public charge.

As “petitioning sponsor” this means you have filed an immigrant petition, which has been approved by USCIS. You have paid your Affidavit of Support processing fee and you have been contacted by the Department of State, National Visa Center (NVC) with instructions. You are ready for the next step in the immigration process, which is to download the necessary forms, complete them, and then submit them for the purpose of sponsoring the intending immigrant.

The I-864 Affidavit of Support is a contract between a sponsor and the U.S. Government. The legal basis for the I-864 Affidavit of Support is Section 213A of the Immigration and Nationality Act (INA).

Recent Changes to Affidavit of Support Procedures
Some Affidavit of Support procedures have changed, as highlighted in the Department of Homeland Security, Fact Sheet: Affidavits of Support. This website information has been updated to include these changes.

General Instructions for Completing Affidavit of Support Forms

Detailed Step-by-Step Instructions are Included on Each Form –
Each of the Affidavit of Support forms I-864W, I-864EZ, I-864 and I-864A have detailed step-by-step instructions for completion by the sponsor, or joint sponsor, if applicable. It is very important to carefully follow the detailed instructions included with each form you download. The instructions explain which form you will need and how to properly complete each form. Important Note: The information in the Checklist-Guidelines, and Frequently Asked Questions below, and other information on this website is to be used with and not instead of the detailed instructions on the applicable form(s).

Completing the Forms - Each of the above forms are able to be completed (are “fillable”) on the computer. It is preferred that you type the form using CAPITAL letters, completing the forms online and then printing them. After the form is completed on the computer, it must be printed and mailed as instructed. The form cannot be submitted on your computer.

Checklist-Guidelines - Use the Checklist-Guidelines for Preparing the I-864, when completing and assembling Affidavit of Support forms and documents. See the section ”How to Get Started - Step-by-Step”.

General Information and Frequently Asked Questions (FAQs) - Also review the Affidavit of Support General Information and FAQs. This section answers questions, explaining the affidavit of support process and aspects of some instructions on the forms.

Affidavit of Support Forms - National Visa Center (NVC) Role

How is the I-864 processing fee paid?
The National Visa Center (NVC) processes immigrant visa petitions after the U.S. Citizenship and Immigration Services in the Department of Homeland Security (USCIS) approves them. When the immigrant visa case is current or about to become current, the NVC will send a bill to the petitioner asking him/her to pay an I-864 processing fee. The NVC will send the bill with an envelope with a bank address and instructions on where and how to pay the bill.

When does the NVC send instructions about the I-864, I-864W, I-864EZ and I-864A?
After the bill has been paid, the NVC will send a letter with instructions to the petitioner.

How Does the Sponsor Get the Forms and Get Started?

You will need to download the appropriate Affidavit of Support forms for completion. NVC does not mail the forms. The forms you download are fillable on your computer, and it is preferred that you type the form using CAPITAL letters. Then you will need to print the completed form to submit it to NVC. Your form cannot be submitted online on the computer.
Detailed instructions are provided with each of the forms, when downloaded. It is important that the sponsor(s) carefully follow the instructions to determine which form you need to complete, and how to complete the forms. Some procedures have changed, as highlighted in the Department of Homeland Security, Fact Sheet: Affidavits of Support. Carefully review and follow the Checklist-Guidelines for the Preparing the Affidavit of Support Forms. To get started in reviewing the Affidavit of Support forms, we suggest that you start this way-
1 - Review the I-864W instructions and learn whether the exemption form should be used; if no,
2 - Review the I-864EZ instructions to find out if the Affidavit of Support short form applies; if no,
3 - If the above don’t apply, you probably will need to prepare the I-864, and possibly I-864A.

Signing and Submitting the Forms
The petitioner/sponsor will complete and sign the I-864, I-864W, I-864EZ or I-864A, as appropriate. Make sure you carefully review and follow the Checklist-Guidelines for the Preparing the Affidavit of Support Forms to make sure you have completed everything. Affidavit of Support forms that are incomplete or have not been assembled correctly will not be accepted. After the appropriate form with documentation is complete, the petitioner should send it to the National Visa Center.

What does the NVC do with the I-864?
The NVC will review the I-864, I-864EZ, I-864W or I-864A for technical completeness and correctness. If the form(s) is not technically correct or complete, the NVC will ask the petitioner/sponsor to correct and complete the applicable form a second time. It will explain what is lacking in the previously submitted form. When a corrected I-864, I-864EZ, I-864W or I-864A is returned to the NVC, it will be sent to the embassy or consulate where the applicant will apply for a visa. The NVC will send it with the immigrant visa petition.

Does the NVC review Affidavits of Support forms for petitions filed at a post (embassy or consulate) abroad?
No. The NVC only reviews I-864, I-864EZ, I-864W or I-864A for immigrant visa petitions filed at United States Citizenship and Immigration Services (USCIS) office in the United States. If the petition was filed at a post abroad or the petition was already at post when the NVC began to review Affidavits of Support forms, it will not review the form. Unless the NVC communicates with you about the I-864, it is not a part of the I-864 review process.

If the consular officer says the applicant needs a joint sponsor, does the joint sponsor send the I-864 to the NVC for review?
No. If the post asks for a joint sponsor, the joint sponsor should send the completed I-864 directly to the applicant. The applicant will submit the I-864 to the consular officer for review.

Can a petitioner (sponsor) with limited financial resources sponsor only the principal applicant and not his/her spouse and eligible children?
Yes. The petitioner (sponsor) can limit the number of sponsored immigrants listed on the Affidavit of Support to the number of people who actually intend to immigrate at that time. The principal applicant must be one of the sponsored immigrants. The petitioner can reduce his/her household size by limiting the number of applicants that he/she will sponsor. This gives him/her a lower minimum income requirement. The petitioner would be able to file another Affidavit of Support for the principal applicant's dependents at a later time when the petitioner and the principal applicant make more money. When the petitioner files a new Affidavit of Support for the remaining eligible family members, the principal applicant and any of his/her family members who may have already immigrated would be included in the household size for that I-864.

When Can There Be a Joint Sponsor?
When the primary sponsor cannot meet the income requirements, a joint sponsor who can meet the income requirements may submit an I-864 form to sponsor all or some of the family members. A maximum of two joint sponsors can be used per family unit intending to immigrate based upon the same petition. If two joint sponsors are used, each joint sponsor is responsible only for the intending
immigrant(s) listed on the joint sponsor’s Form I-864. Important note: If a joint sponsor is used, the petitioning sponsor must use Form I-864; he/she cannot use Form I-864EZ.

How do you count children of a divorced couple who reside with one parent part of the time and with the other parent the other part?
A divorced parent's dependent children are members of his or her household, even if they live part of the time with the former spouse. A parent almost always has a legal obligation to support his or her children. Although only one of the parents may be legally entitled to claim the child as a dependent on tax returns (1040), the child must be considered as part of both parents' households for purposes of the Affidavit of Support, unless a parent can show that he or she no longer has a legal obligation to support the child.

Requirements for the Sponsor

What are the requirements for being a sponsor?
A sponsor must be at least 18 years old and either an American citizen or a lawful permanent resident (LPR). The sponsor must also have a domicile (residence) in the United States.

Domicile

Can a U.S. citizen or lawful permanent resident (LPR) petitioner who is not domiciled (living) in the United States be a sponsor?
No. The law requires that sponsors be domiciled (live) in any of the States of the United States, the District of Columbia, or any territory or possession of the United States.

If the petitioner does not have a domicile in the United States, can a joint sponsor file an I-864?
No. Under the law, a joint sponsor cannot sponsor an immigrant when the petitioner does not have a domicile in the United States. The petitioner must first meet all the requirements for being a sponsor (age, domicile and citizenship) except those related to income before there can be a joint sponsor.

How is domicile determined?
Domicile is a complex issue and must be determined on a case by case basis. To qualify as a sponsor, a petitioner who is residing abroad must have a principal residence in the U.S. and intend to maintain that residence for the foreseeable future. Lawful permanent resident (LPR) sponsors must show they are maintaining their LPR status.
Many U.S. citizens and lawful permanent residents reside outside the United States on a temporary basis, usually for work or family considerations. "Temporary" may cover an extended period of residence abroad. The sponsor living abroad must establish the following in order to be considered domiciled in the United States:

• He/she left the United States for a limited and not indefinite period of time,

• He/she intended to maintain a domicile in the United States, and

• He/she has evidence of continued ties to the United States.

An American citizen or LPR spouse or dependent who has maintained a residence in the U.S. and/or whose spouse/parent works in one of the categories listed below would also qualify as a sponsor.

What kinds of employment abroad can be counted as U.S. domicile?

• Employment by the U.S. government

• Employment by an American institution of research recognized by the Attorney General

• Employment by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce with the United States, or a subsidiary of such a firm

• Employment with a public international organization in which the United States participates by treaty or statute

• Employment by a religious denomination/group having a genuine organization within the United States and is stationed abroad with that religious denomination

• Employment as a missionary by a religious denomination/group or by an interdenominational mission organization within the United States and is stationed abroad with that religious denomination

There may be other circumstances in which a sponsor can show that his or her presence abroad is of a temporary nature, and the sponsor has a domicile in the United States. The sponsor must satisfy to the consular officer that he/she has not given up his/her domicile in the United States and established his/her domicile abroad.

How can a petitioner establish a domicile?
When a sponsor has clearly not maintained a domicile in the United States, he/she will need to re-establish a U.S. domicile in order for him/her to be a sponsor. The sponsor may make a number of steps to show that he/she considers the United States his/her principal place of residence. Examples of things he/she can do are given below:

• Find a job in the United States

• Locate a place to live in the United States

• Register children in U.S. schools

• Make arrangements to give up (relinquish) residence abroad

• Other evidence of a U.S. residence

If the sponsor establishes U.S. domicile, it is not necessary for the sponsor to go to the United States before the sponsored family members. However, the sponsored immigrant may not enter the United States before the sponsor returns to the United States to live. The sponsored immigrant must travel with the sponsor or after the sponsor has entered the United States.

Part II...

Gruss
Michael

[Michu]

Part II..

Means Tested Public Benefits
Can the applicant use government assistance or public benefits?
If the sponsored immigrant uses federal means tested public benefits, the sponsor is responsible for repaying the cost of the benefits.

What are federal means tested public benefits?
Federal means tested public benefits are the following:

• Food stamps

• Supplemental Security Income (SSI)

• Medicaid

• Temporary Assistance for Needy Families (TANF)

• State Child Health Insurance Program (CHIP)

What assistance programs are not considered means tested public benefit programs?
The following types of assistance are not considered means tested public benefits and do not have to be repaid.

• 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

Income Requirements and Poverty Guidelines

Since the Poverty Guidelines Change Each Year, Which Ones Apply?
The Poverty Guidelines in effect on the date when the sponsor files the Affidavit of Support with National Visa Center or with the U.S. Embassy or Consulate, will be used whether the income requirement is met. The 2006 Poverty Guidelines, I-864P footnote states the effective date was March 1, 2006. So, if the sponsor filed the I-864 with NVC on February 1, 2006, then the 2005 Poverty Guidelines would be used.

Assets

Who generally does not need to count assets to meet the income requirement?
When the sponsor’s income alone meets the minimum Federal poverty guideline income requirement, the sponsor generally will not need to count assets. The consular officer may request evidence of assets and liabilities, as necessary to determine eligibility.

May the petitioner/sponsor count assets to meet the 125 percent minimum income requirement?
Yes. If a sponsor uses assets to prove the ability to support the sponsored immigrant, he or she may not use the I-864EZ. The sponsor counts his/her income first. Next he/she counts the personal assets and/or the income and assets of household members who have signed an I-864A. In most cases, the sponsor must present evidence establishing location, ownership and value of each asset listed, including liens and liabilities for each asset listed. The consular officer will need to determine that the monetary value of the asset could reasonably be made available to support the sponsored immigrant and readily converted to cash within one year, without undue harm to the sponsor or his or her family member.

What Cash Value of Assets is Needed?
To be counted, the cash value of assets must equal five times the difference between the sponsor's income and 125 percent of the poverty line for the household size.
For example, a petitioner/sponsor with a household size of four and an income of $18,000 would need assets equal to five times the difference between his/her income and the income required for a family of four at the current federal poverty guidelines level. He/she would also need to show evidence of mortgages, liens, and liabilities against the assets.
The cash value of assets required is different for these sponsors:
Sponsors of immediate relative spouses and children of U.S. citizens must only show assets in the amount of three times the difference between the poverty guideline and actual household income.
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.

What can be used as assets?
Assets can be savings, stocks, bonds and property. They must be easily converted to cash.

Can the immigrant visa applicant count assets that he or she owns that are outside the United States, such as real estate or personal property?
Yes, under these conditions:

• The assets 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 regulations which limit the amount of cash or liquid assets that can be taken out of the country

• The assets equal at least five times the difference between the sponsor's income and 125 percent of the poverty line for the household size.

Can free housing be counted as income?
Yes. Sponsors who receive housing and other benefits in place of salary may count those benefits as income. The sponsor may count income that is not subject to taxation (such as housing allowance), as well as taxable income. The sponsor would have to prove the nature and amount of any income that is not included as wages or salary or other taxable income. Evidence of such income can be shown through notations on the W-2 Form (such as Box 13 for military allowances), Form 1099 or other documents that show the claimed income.

Can a credible offer of employment for the visa applicant replace or supplement an insufficient Affidavit of Support?
No. The law does not allow for consideration of offers of employment in place of the I-864. A job offer may not be counted in reaching the 125 percent minimum income.
A job offer can be taken into consideration in determining the ability of the applicant to overcome ineligibility on public charge grounds, but it does not meet any requirement for presenting an I-864.

Is a "sufficient" I-864 the only consideration for meeting any public charge issues at the time of the visa interview?
No. Even though the I-864 is a contract and the U.S. government prohibits giving immigrants most federal means-tested public benefits for at least the first five years after their arrival in the U.S., consular officers look at other public charge issues. They will look at the complete financial situation of the sponsor and the applicant. This means looking at the age, health, education, skills, financial resources and family status of the applicant and the sponsor. They will confirm to the extent possible that the applicant will have adequate financial support and is not likely to become a public charge.

If the poverty guidelines change between the time the petitioner signed the I-864 and the issuance of an immigrant visa, must the petitioner/sponsor and joint sponsor, if required, submit a new I-864?
No. The I-864 will remain valid indefinitely absent other evidence of failure to meet the public charge provisions and should be evaluated based on the poverty guidelines in effect on the date of filing of the I-
864 with the National Visa Center, (check on this cable says date of signature by sponsor.) the U.S. embassy or consulate in support of an immigrant visa application. The consular officer will determine whether the income stated by the sponsor and documented in the tax return and any other evidence meets the poverty guidelines in effect as of the time of the I-864 was filed. If the income stated by the sponsor does not meet the poverty guidelines then the consular officer may request the sponsor may submit current year income information.

Completing the Affidavit of Support forms
Are the Affidavit of Support forms required to be notarized?
No. The sponsor just has to sign the form. You should know however, when the sponsor signs an Affidavit of Support form, he/she certifies that the information provided, transcript and/or photocopy of tax documentation is true and correct, under penalty of perjury.

What income documentation is required?
With their Form I-864, the sponsor is required to submit an IRS transcript or photocopy of only the most recent Federal income tax return. However, the sponsor may, at his or her option, submit Federal income tax returns for the three most recent years if the sponsor believes these additional tax returns may help establish the sponsor's ability to maintain his or her household income at the applicable threshold set forth in the poverty guidelines. The consular officer will determine whether the income stated by the sponsor and documented in the tax return and any other evidence meets the poverty guidelines in effect as of the time of the I-864 was filed with the National Visa Center, the U.S. embassy or consulate. If the income stated by the sponsor does not meet the poverty guidelines then the consular officer may request the sponsor may submit current year income information for additional evidence to reach a determination. If the sponsor is relying on income from any household member or dependents to reach the minimum income requirement, an IRS-issued transcript or a copy of each individual's most recent tax return is also required, and each person must complete a Form I-864A, Contract Between Sponsor and Household member. The consular officer may ask for additional income documentation, such as employment letter.

What does the sponsor do when he/she was not required by law to file an income tax return during a given year?
If you did not have to file a tax return, attach a written explanation and a copy of the instructions from the IRS publication that shows you were not obligated to file. For general information on income tax obligations, visit the IRS website.

I failed to file required tax returns, what do I do, since I want to be a sponsor?
Failure to file a required income tax return does not excuse the sponsor from the requirement for tax returns as supporting documents. If a tax return should have been filed, the Affidavit of Support will not be considered sufficient until the sponsor has done so and supplied the appropriate copies for with the Form I-864, Affidavit of Support. If the income requirement cannot be met, but the sponsor claims to have under-reported his or her income, an original or amended tax return will be necessary to process the immigrant visa application to conclusion.

If the sponsor owns a business, should he/she submit individual or business tax returns?
Individual tax returns. Consular officers can only accept individual tax returns, since the individual is sponsoring the applicant, not the business.

If the sponsor does not have copies of his/her tax returns, can he/she submit a summary of the returns from the Internal Revenue Service (IRS)?
Yes.

Accompanying Family Members
Does each accompanying family member need separate documents if they are traveling with the principal applicant?
Accompanying dependents who immigrate with the principal applicant must have a signed original or a photocopy of the principal applicant's signed (not required to be notorized) Form I-864 and I-864A (if needed). Copies may only be used for dependents whose names appear on the principal's original forms.

Do following-to-join family members need separate I-864 Affidavits of Support and supporting documents?
Family members who travel later (follow-to-join) will require one complete set of the documents prepared in support of the principal applicant's I-864. Each individual applicant must present an I-864 Affidavit of Support with original signatures.

What do family members need if they have separate visa petitions?
If family members have separate visa petitions, each family member must submit a signed I-864 from the petitioner/sponsor, the joint sponsor (if required) and I-864As as required. Each family member must also submit a complete set of any required supporting documents.

Can different joint sponsors submit Affidavits of Support for separate family members, listed on the same petition?
Yes, under certain circumstances. Each joint sponsor must meet the minimum income requirement citizenship, residence and age requirements. If a petitioner or sponsor meets the minimum income requirements, a Form I-864 cannot be submitted for joint sponsorship, unless the consular officer or the DHS immigration officer specifically requires it. Two joint sponsors can be used per family unit intending to immigrate based upon the same petition. If two joint sponsors are used, each joint sponsor is responsible only for the intending immigrant(s) listed on the joint sponsor’s Form I-864.

Death of the Sponsor
If the sponsor dies after the principal applicant has immigrated to the United States but before all qualified family members who are traveling later (following to join) have immigrated, can they obtain another sponsor?
In the event a sponsor has died before all family members have followed to join the principal, a joint sponsor is permitted to execute a Form I-864. In such a case, there is no requirement that you must request a joint sponsor. The new sponsor may submit a Form I-864, regardless of the status of the deceased petitioner's estate.

Expiration of the I-864
Does the I-864, I-864EZ, or I-864A ever expire?
No, the validity of the I-864, I-864 EZ, or I-864A is considered indefinite; beginning from the date the sponsor files it with either the National Visa Center, the U.S. embassy or consulate.

Other Immigrant Categories - When an I-134 May be Needed
Do applicants who are applying for an immigrant visa in a visa category that does not require the I-864 Affidavit of Support, such as the diversity immigrant visa, need to meet the public charge provisions of Section 213A of the INA?
Consular officers will review immigrant visa applicants whose visa categories do not require the I-864 under the public charge guidelines in Section 212(a)(4) of the Immigration and Nationality Act. The applicants must show that they will not become a public charge. A consular officer may ask for an Affidavit of Support, Form I-134 and supporting documents. The sponsor will need to show income at 100 percent of the federal poverty guidelines for household size, not the 125 percent required under Section 213A of the INA.

Should K-1 fiancé(e) visa applicants use the I-864 or the I-134?
Since fiancé(e)s are nonimmigrant visa applicants, they should use the I-134. They will need to submit an I-864 to U.S. Citizenship and Immigration Services (USCIS) when they adjust status to conditional immigrant in the United States after they are married.

Should diversity (DV) or returning resident (SB) applicants use the I-864 or the I-134?
They should use the I-134. The I-864 can only be used in the specified categories (most family-based and certain employment-based cases). All other applicants must use the I-134 if an affidavit of support is needed.

Do the same income requirements apply to all immigrant visa applicants even if they use the I-134?
No. The 125 percent minimum income requirement, the most recent year's tax return and other requirements only apply when an I-864 is needed. Applicants using the I-134 will need to show that their sponsor's income is 100 percent of federal poverty guidelines as required under Section 212(a)(4) of the INA.

More Information on the I-864
For more information on the I-864 Affidavit of Support see 9 FAM 42.63 Procedural Notes, 9 FAM 40.41 Procedural Notes and Sections 212(a)(4) and 213A of the Immigration and Nationality Act (INA). The complete FAM and INA are available by visiting FOIA on the Department of State website.
Also see How Do I File an Affidavit of Support for a Relative? at

http://www.uscis.gov

http://travel.state.gov/pdf/I-864GenInfo-FAQ-Final.pdf

Gruss
Michael

[Michu]

FINAL RULE REGARDING AFFIDAVITS OF SUPPORT

Washington, D.C. – U.S. Citizenship and Immigration Services (USCIS) published today in the Federal Register (71 FR 35732) a final rule regarding Affidavits of Support (Form I-864). Affidavits of Support are submitted by sponsors on behalf of most family-based and some employment-based immigrants. The final rule responds to public comments to an interim rule published by the former Immigration and Naturalization Service on October 20, 1997 in the Federal Register at 62 FR 54346. The final rule makes the Affidavit of Support process less burdensome for sponsors while continuing to ensure that each intending immigrant has a sponsor who has sufficient income and/or assets to support the immigrant(s). The Affidavit of Support also allows the sponsored intending immigrant to establish that he or she is not likely to become a public charge (e.g., receive certain federal or state means-tested benefits).

This final rule takes effect July 21, 2006. It will apply to any application for an immigrant visa or adjustment of status that is decided on or after July 21, 2006 even if the case was filed before July 21, 2006.

Highlights From the Final Rule

�� Reduces required initial documentation: Each sponsor is now required to submit as initial evidence only his or her single most recent tax return rather than tax returns from the three most recent federal tax returns, pay stub(s) covering the most recent six months, and an employer letter.


�� Introduces new EZ Affidavit of Support (Form I-864EZ): The EZ Affidavit of Support is a short form Affidavit of Support to be used by certain petitioning sponsors who rely only upon their own employment to meet the affidavit of support requirements.


�� Establishes new Intending Immigrant’s I-864 Exemption (Form I-864W): This new form is specifically designed to standardize and make more efficient the process certain immigrants must follow to establish that they are not required to have an affidavit of support filed on their behalf.


�� Eliminates the affidavit of support requirement in certain cases—for example:


�� Sponsored immigrants who have, or can be credited with, 40 quarters of covered employment; and


�� Adopted children who will qualify for citizenship immediately upon entry under the Child Citizenship Act of 2000.

NOTE: The new Form I-864W should be filed in these situations and two other situations noted on
the form.

�� Allows two joint sponsors per family unit intending to immigrate based upon the same petition: If two joint sponsors are used, each joint sponsor is responsible only for the intending immigrant(s) listed on that joint sponsor’s Form I-864, Affidavit of Support.


�� Provides more flexible definition of “household size.”


�� Allows, but does not require, sponsors to include as part of household size any relatives in the household who are not dependents if they complete a Contract Between Sponsor and Household Member (Form I-864A) promising to make their income and/or assets available to the sponsor and intending immigrants.


�� Eliminates the requirement that household members must have lived in the sponsor’s household for at least six months in order to sign a Form I-864A.


�� Reduces the amount of assets that certain sponsors must show in order to cover any shortfall in their household income.


�� Sponsors of immediate relative spouses and children of U.S. citizens: Amount of required assets is reduced from five times to three times the difference between the governing poverty guideline and actual household income.


�� Sponsors of alien orphan intending immigrants where the orphan will acquire citizenship after admission because of adoption in the U.S. or formal recognition of the foreign adoption: Amount of required assets is reduced to the difference between the governing poverty guideline and actual household income.

As noted above, USCIS is releasing two new public use forms with the final rule: the EZ Affidavit of Support (Form I-864EZ) and the Intending Immigrant’s I-864 Exemption (Form I-864W). These forms will be available on the USCIS website at www.uscis.gov , at local USCIS offices, and via the USCIS Forms line, 1-800-870-3676.

For further information, please see the USCIS website, www.uscis.gov , or contact the USCIS National Customer Service Center at 1-800-375-5283.

– USCIS –

http://www.uscis.gov/files/pressrelease/AffSupp_062106FS.pdf

Gruss
Michael

[Michu]

Consolidation of Policy Regarding Form I-864, Affidavit of Support(AFM Update AD 06-20)


To: REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
DISTRICT DIRECTORS
NATIONAL BENEFITS CENTER DIRECTOR
From: Michael Aytes /s/
Acting Director for Domestic Operations
Date: June 27, 2006
RE: Consolidation of Policy Regarding USCIS Form I-864, Affidavit of Support
(AFM Update AD06-20)

1. Purpose
This memorandum revises Chapter 20.5 of the Adjudicator’s Field Manual (AFM) to conform this chapter to the final rule relating to the use of Affidavits of Support (Forms I-864) under section 213A of the Immigration and Nationality Act (INA), 8 U.S.C. 1183a, as amended. The final rule was published on June 21, 2006 in the Federal Register at 71 FR 35732.
This memorandum also (1) clarifies that an Affidavit of Support must be sufficient both at the time the adjustment of status application is filed and at the time the adjustment application is adjudicated, and (2) reiterates that, subject to limited exceptions, an Affidavit of Support is sufficient at the time of the adjudication if it was sufficient at the time it was filed with the Form I-485, Application to Register Permanent Residence or to Adjust Status.
Both the final rule and this memorandum are effective July 21, 2006.

2. Background
On October 19, 1997, USCIS published an interim rule implementing section 213A of the Immigration and Nationality Act. Since that date, the former Immigration and Naturalization Service (INS) and USCIS have issued a May 18, 1998 Federal Register notice (at 63 FR 27193) and several policy memoranda regarding section 213A of the Act, including
• Clarification of Service policy concerning I-864 affidavit of support (March 7, 2000);


HQRPM 70/21.1.13

20 Massachusetts Avenue, N.W.
Washington, D.C. 20536


Clarification of Policy Regarding USCIS Form I-864, Affidavit of Support HQRPM 70/21.1 Page 2
• Effect of enactment of the Child Citizenship act of 2000 on the affidavit of support requirement under INA 212(a)(4) and 213A (May 17, 2001);
• Whether an affidavit of support is required if the alien already has, or can be credited with, 40 qualifying quarters of coverage (May 17, 2001);
• Policy Change - Public Law 107-150, the Family Sponsor Immigration Act of 2002: Use of Substitute Sponsor if Visa Petitioner Has Died” (June 15, 2002);
• Affidavit of support, employment letters, and ability to pay determinations (May 14, 2004); and
• USCIS policy regarding Form I-864, Affidavit of Support (November 23, 2005).

On June 21, 2006, USCIS published a final rule in the Federal Register adopting the October 19, 1997 interim rule, with appropriate changes, as a final rule. Effective July 21, 2006, this rule incorporated many of the policies stated in the memos listed above and, in addition, made changes not covered in the memos, such as:
• Eliminating the requirement that sponsors submit as initial evidence pay stub(s) covering the most recent six months and an employer letter.
• Introducing the new EZ Affidavit of Support (Form I-864EZ), a short form Affidavit of Support for certain petitioning sponsors who rely only upon their own employment to meet the affidavit of support requirements.
• Establishing the new Intending Immigrant’s I-864 Exemption (Form I-864W), a form specifically designed to standardize the process for determining that a particular immigrant is not required to have an affidavit of support filed on his or her behalf.
• Allowing two joint sponsors per family unit intending to immigrate based upon the same petition. If two joint sponsors are used, each joint sponsor is responsible only for the intending immigrant(s) listed on that joint sponsor’s Form I-864, Affidavit of Support.
• Providing a more flexible definition of “household size.”
�� Allows, but does not require, sponsors to include as part of household size any relatives in the household who are not dependents if they complete a Contract Between Sponsor and Household Member (Form I-864A) promising to make their income and/or assets available to the sponsor and intending immigrants.
�� Eliminates the requirement that household members must have lived in the sponsor’s household for at least six months in order to sign a Form I-864A.
• Reducing the net value of assets that must be shown in order to cover any shortfall in the sponsor’s household income when the intending immigrant is seeking to immigrate as:
�� The spouse or child of a U.S. citizen; or
�� An alien orphan who will be admitted as an IR-4 immigrant.
• Clarifying that all income and assets used to meet the Affidavit of Support requirement must come from a lawful source.

For a complete listing and discussion of the changes, see the attached final rule.

3. Field Guidance
USCIS shall follow 8 CFR 213a and Chapter 20.5 of the AFM. Any prior policy memorandum provision that is not consistent with the regulations or Chapter 20.5, as amended by this memorandum, is rescinded.

4. Contact Information
Questions regarding this memorandum and USCIS policy regarding Form I-864, Affidavit of Support, may be directed by email through appropriate supervisory channels to Jonathan Mills, USCIS Office of Regulations and Product Management (RPM).

5. AFM Update
1. Chapter 20.5 of the AFM is revised to read:
....

Gruss
Michael

[Michu]

......

20.5 Enforceable Affidavits of Support.
(a) Background. Section 213A of the Act and 8 CFR 213a require most family-based and certain employment-based intending immigrants who, on or after December 19, 1997, seek to enter the United States as immigrants or who apply for adjustment of status to establish that they are not inadmissible under section 212(a)(4) of the Act by having a sponsor sign a legally enforceable Affidavit of Support on behalf of the affected intending immigrant(s).

The Affidavit is submitted on Form I-864, or, for those sponsors who are eligible to use it, on Form I-864EZ. The new Form I-864, Form I-864A, and Form I-864EZ, and I-864W are all dated January 15, 2006. The Forms are available at www.uscis.gov. To help ensure an orderly transition from the old Form I-864 and I-864A to the new forms, USCIS should continue to accept old versions of Form I-864 and Form I-864A until October 19, 2006, a grace period of 90 days from the effective date of the final rule.
Unless otherwise noted, references to Form I-864, Affidavit of Support, include Form I-864EZ, a short form Affidavit of Support to be used by certain petitioning sponsors who rely only upon their own employment to meet the affidavit of support requirements. Regulations governing the use of Form I-864 are located in 8 CFR 213a.

(b) Persons Required to Have Sponsorship. The following intending immigrants are required to have Form I-864 filed on their behalf:
• Immediate relatives, including K nonimmigrants adjusting to LPR status and orphans (unless the orphan would become a citizen upon adjustment of status pursuant to section 320 of the Act);
• Family based immigrants;
• Employment based immigrants if the petitioning employer is a relative of the alien, and is a U.S. citizen or Lawful Permanent Resident; and
• Employment based immigrants if a relative of the alien has a significant ownership interest (5% or more) in the for-profit petitioning entity, and is a U.S. citizen or a Lawful Permanent Resident.

Note: For employment based cases, an Affidavit of Support is required only if the intending immigrant will work for a relative who is eligible to file a Form I-130 on behalf of the intending. Therefore, for purposes of the Affidavit of Support, a relative is defined as (1) a U.S. citizen or LPR who is the intending immigrant’s spouse, parent, child, adult son or daughter, or (2) a U.S. citizen who is the intending immigrant’s brother or sister.

Note: An applicant for adjustment of status who filed his or her Form I-485 prior to December 19, 1997, is exempt from the Affidavit of Support requirement even if the interview is conducted and/or the application is adjudicated after that date. [See Section 531(b) of Pub. L. 104-208 and 8 CFR 213a.2(a)(2)(i) (adjustment applicants) and 213a.2(a)(2)(ii)(B) (applicants for admission).]

Some editions of the Form I-864 and Form I-864A include a jurat to be completed by a notary or by a consular or immigration officer to show that the person signed or acknowledged the signing of the Form I-864 or I-864A under oath. The Form I-864 and Form I-864A, however, provide that they are signed “under penalty of perjury.” Thus, 28 U.S.C. 1746 (which deals with the legal effect of unsworn statements) makes it unnecessary for Form I-864 and Form I-864A to be signed in the presence of or certified by a notary public or an Immigration or Consular Officer. Note that the jurat has been removed from the January 15, 2006 edition of the Forms I-864 and I-864A. Form I-86EZ is a newer form, and therefore never had the jurat.

Accompanying spouses and children also need to submit Form I-864s. Each spouse or child must submit a photocopy of the principal’s I-864, but they do not need to submit a photocopy of the supporting documentation. A spouse or child is considered to be “accompanying” a principal immigrant if they apply for an immigrant visa or adjustment of status either at the same time as the principal immigrant or within 6 months after the date the principal immigrant acquires LPR status.

Following-to-join spouses and children (those who apply for an immigrant visa or adjustment of status 6 months or more after the principal immigrant) require a new Form I-864 at the time they immigrate or adjust status.
(c) Applicants Exempt from Sponsorship. The following intending immigrants do not need to file Form I-864 when applying for adjustment of status:

• Any intending immigrant who falls within an immigrant classification listed in section 20.5(b) above but
�� Has already earned, or can be credited with 40 quarters of coverage pursuant to the Social Security Administration’s regulations; or
�� Is classified as the child of a U.S. citizen, if the child’s adjustment of status application is approved before the child’s 18th birthday, and if the approval will make the child a citizen under section 320 of the Act (i.e., the Child Citizenship Act of 2000).
• Diversity immigrants.
• Special immigrants.
• Employment based immigrants (other than those for whom a relative either filed the Form I-140 or owns 5% or more of the firm that filed the Form I-140).
• Self-petitioning immigrants (including self-petitioning widow(ers) and battered spouses and children).
• Refugees and asylees adjusting status.
• Registrants under section 249 of the INA.
• Any other intending immigrant not falling within a class of admission listed in section 20.5(b) above.

(d) Sponsor Requirements.
(1) General. A sponsor who completes Form I-864 must be all of the following:

• The petitioning relative or the relative who has a significant ownership interest in the petitioning entity;
• An individual (a sponsor cannot be a corporation, organization, or other entity);
• A citizen of the United States or a permanent resident (including conditional residents);
• At least 18 years of age;
• Domiciled in the United States, the District of Columbia, or any territory or possession of the United States (see section (d)(2) below).
• Able to demonstrate the means to maintain an income of at least 125% of the Federal Poverty Guidelines for the sponsor’s household size, including the immigrants being sponsored or previously sponsored. A sponsor on active duty in the U.S. Armed Forces, other than active duty for training, who is petitioning for a spouse or child must only demonstrate the means to maintain an income equal to at least 100% of the Federal Poverty Guidelines. Assets of the sponsor, the intending immigrant, or both may be used to demonstrate this requirement.

Note: A non-citizen U.S. national may sign a Form I-864 only as a joint sponsor.

(2) Domicile. Domicile means the place where a sponsor has his or her principal residence, as defined in section 101(a)(33) of the Act, with the intention to maintain that residence for the foreseeable future. A United States citizen living abroad whose employment meets the requirements of section 319(b)(1) of the Act is considered to be domiciled in the United States. For purposes of the ability to sign a Form I-864, an LPR living abroad is considered to have a domicile in the United States during a temporary period of residence abroad if he/she has obtained preservation of residence benefits under 316(b) or 317 of the INA. There may be other situations in which a U.S. citizen or LPR can establish that his or her domicile is still in the United States, despite the fact that the citizen or LPR is currently living outside the United States. Critical issue: proof that the residence abroad is intended to be only temporary and that sponsor, during the temporary absence, has maintained an intent to keep his or her domicile in the United States, despite the temporary sojourn abroad.

If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant’s admission or adjustment of status. The intending immigrant will be inadmissible under section 212(a)(4) of the Act, and the intending immigrant’s application for admission or adjustment of status must be denied, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision on the principal application for admission at a U.S. port of entry on an immigrant visa or adjustment of status.

In the case of a sponsor who comes to the United States intending to establish his or her principal residence in the United States at the same time as the principal intending immigrant’s arrival and application for admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United States for purposes of this paragraph. If, however, the sponsor is an LPR, and the sponsor’s own application for admission is denied, so that the sponsor leaves the United States either under a removal order or as a result of the sponsor’s withdrawal of the sponsor’s application for admission, the sponsor will not be deemed to have established a domicile in the United States. Thus, the Form I-864 will not be valid and the sponsored immigrant will be inadmissible on public charge grounds.

(3) Use of Spouse’s Income. A sponsor’s spouse who qualifies as a household member and wishes to have his or her income included as a household member generally needs to complete a Form I-864A. However, if the spouse is not willing to let the sponsor rely on the spouse’s income, that is acceptable. In this situation, the sponsor needs to show his or her own income and which portion of any assets used to qualify can be attributed to him or her.


In some situations, the sponsor’s spouse qualifies as a household member and is also the intending immigrant being sponsored. Since a sponsored immigrant cannot agree to support himself or herself, he or she should not complete a Form I-864A. If children are also listed on the Affidavit of Support, and the sponsor intends to rely on the spouse’s income to show the ability to support these accompanying family members, then the spouse must complete Form I-864A in order for the sponsor to be able to rely on the spouse’s income.

(4) Use of Intending Immigrant’s Income. If the sponsor does not meet the income requirement on the basis of his or her own income and/or assets, the sponsor may also count the intending immigrant’s income if (1)(a) the intending immigrant is either the sponsor’s spouse or (b) has the same principal residence as the sponsor, and (2) the preponderance of the evidence shows that the intending immigrant’s income results from the intending immigrant’s lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status. The prospect of employment in the United States that has not yet actually begun does not count toward meeting this requirement.

Note: The revised definition of “household income” retains the requirement that, unless the intending immigrant is the sponsor’s spouse, the intending immigrant must have the same principal residence as the sponsor in order for the sponsor to rely on the sponsored immigrant’s income. It is no longer required, however, that the intending immigrant must have had the same principal residence as the sponsor for at least 6 months.

Note: The interim rule did not directly address the ability of a sponsor to rely on an intending immigrant’s income from unauthorized employment in meeting the Poverty Guidelines threshold for the sponsor’s household income. In response to a specific comment relating to the issue of the sponsor’s reliance on an intending immigrant’s income, the revised definition of “household income” now makes it clear that income from an intending immigrant’s unauthorized employment may not be considered in determining whether the sponsor’s anticipated household income meets the applicable Poverty Guidelines threshold. The basis for this clarification is the clear public policy, as stated in INA §§ 245(c)(2) and 274A, 8 U.S.C. §§ 1255(c)(2) and 1324a, against unauthorized employment. Unauthorized employment, admittedly, is not always a bar to adjustment of status. Nevertheless, sections 212(a)(4)(C) and 213A clearly assume that it is primarily the sponsor himself or herself who must meet the income threshold for the Form I-864. This principle is gravely undermined by permitting the sponsor to rely on the intending immigrant’s income, if it is derived from unlawful employment.

If there is an accompanying spouse and/or child listed on the Affidavit of Support, then the sponsored intending immigrant must also complete a Form I-864A. If, however, the sponsored intending i