Affidavits of Support
The affidavit of support is a promise to financially support the foreign national until the earliest of her (1) attainment of US citizenship, (2) uninterrupted full time work for ten years, or (3) death. All family-based applications for permanent residence require an affidavit of support. Employment-based applications do not, except rarely.
The law lists several requirements regarding affidavits of support:
- The family-based petitioner must file an affidavit of support
- Affidavits of support filed for the foreign national must cumulatively prove income equal to or exceeding 125% of the "poverty line" as published that year by the Department of Health and Human Services (active duty US military are allowed to show 100% of the poverty line)
- Even if the family-based petitioner's income is insufficient to qualify and a supplemental sponsor submits and affidavit, the law still requires the family-based petitioner to file an affidavit of support
- The beneficiary's assets and income may be used to meet the income requirement if the beneficiary is currently working in the United States
- All affidavit of support sponsors must be US residents, or citizens and at least 18 years old
- A sponsor may qualify using assets, but only if the asset can be converted to cash within one year and will not cause a financial loss or hardship to the sponsor during the conversion.
- If the assets are in another country, the sponsor must prove that the proceeds of sale can be removed from that country.
- To qualify on assets, the assets must be net presently valued at five times the difference between the sponsor's income and 125% of the poverty level, but for sponsors of spouses and children of US citizens, assets must only be valued at three times the difference.
- Free housing and other benefits in place of salary may be counted as income, for example per diems, company housing, and military allowances.
In the case where the family-based petitioner dies after the I-130 petition is approved, but before submitting an affidavit of support, the Family Sponsor Immigration Act allows a "substitute sponsor" for the I-864. A substitute sponsor is different than a supplemental sponsor. Substitute sponsors must be a relative, but may be an in-law or legal guardian, but may not be more distant in relation than a child-in-law. INA 213A(f)(5)(B). In such cases the I-130 petition is automatically revoked and the beneficiary will need to apply for humanitarian reinstatement. Please see our family immigration page for more information about humanitarian reinstatement.
The petitioner and supplemental affidavit of support sponsors must use form I-864. When an affidavit of support sponsor must use the income of a member of her household to qualify, that household member must sign a form I-864A.
Each affidavit of support sponsor, supplemental sponsor and household member must submit at a minimum:
- Most recent federal tax return
- Forms W-2 and 1099 for most recent tax year
- Proof of US residence, or citizenship
- A recently dated employment verification letter
The Public Charge Ground of Excludability
The first public charge law was enacted by Massachusetts when it was an English colony in 1645. Massachusetts passed a revised law in 1700 requiring those who were "lame, impotent, or infirm... [and] incapable of maintaining themselves" to post a bond. New York enacted a law in 1691 requiring immigrants to have a visible estate or a manual occupation, or to give some surety that they will not be a "burden or charge." Delaware passed a law in 1740 to exclude "any such infant, lunatick, aged, maimed, impotent or vagrant person."
The ratification of the US Constutition gave the federal government exclusive power over immigration starting in 1808. U.S. Const. Art. I, Sec. 9. The first federal law codifying the public charge ground of exclusion was the Immigration Act of 1882, which excluded any immigrant "unable to take care of himself or herself without becoming a public charge."
The Immigration and Nationality Act of 1952 continued an established public charge ground of excluding a foreign national from US residence. A "public charge" is a person who cannot financially support himself and depends on government paid benefits. The public charge exclusion is a highly operative accounting for just less than 90 percent of all State Department denials of immigrant visas. The rule at INA section 212(a)(4) notes that whether a foreign national is likely to become a public charge turns on the "totality of the circumstances" considering especially:
- Family status
- Financial status
- Education and skills
When Past Receipt of Public Benefits May Cause Problems
The US Supreme Court has held that Congressional restrictions on immigrants' receipt of welfare benefits is Constitutional. Mathews v. Diaz, 426 U.S. 67 (1976). Because it is lawful for Congress to restrict welfare benefits from non-citizens including healthcare, Congress may lawfully decide whether the receipt of certain benefits renders an alien ineligible for residence, excludable under as a public charge.
Generally, past acceptance of public benefits should not completely disqualify an alien from applying for permanent residence, but it will be necessary to show that the aid was taken for a short period of time a long time ago. The government will consider past acceptance of cash welfare and benefits in ascertaining the likelihood that you will use cash welfare or other public benefits in the future.
The sorts of benefits that are likely to be viewed by the government as creating a public charge problem include:
- Cash assistance for income maintenance and institutionalization for long term care at government expense
- Public benefits received by one or more members of the family who are not the applicant, but that assistance amounts to the family's sole support
- Temporary Assistance for Needy Families (TANF) (successor to the Aid to Families with Dependent Children Program, AFDC) except for non-cash benefits like child care and transit subsidies, or crisis situation support
- State and local cash assistance programs for income maintenance (usually called "General Assistance")
- Medical programs including Medicaid that support a person in long term care, for example a nursing home or mental institution
The sorts of benefits unlikely to be considered for public charge benefits include:
- Non-cash benefits are usually not considered
- Medicaid health services other than long-term care
- Childrens' Health Insurance Program (CHIP)
- Nutrition programs including Food Stamps, Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and Breakfast Program and other food assistance
- Housing benefits
- Child care services
- Energy assistance such as the Low Income Home Energy Assistance Program (LIHEAP)
- Disaster relief
- Foster care and adoption services
- Educational assistance including head start
- Job training
- In-kind community-based programs such as soup kitchens, crisis counseling intervention
Who Does Not Require an Affidavit of Support?
First, any alien who has already worked for forty creditable quarters in the United States (as defined under title II of the Social Security Act) does not need an affidavit of support to adjust status. See USCIS Memo of Michael D. Cronin, May 17, 2001.
Subject to some exceptions, the following groups of applicants generally do not require affidavits of support:
- Refugees and Asylees applying for residence
- Applicants to adjust under the Cuban Adjustment Act
- Applicants to adjust under the Nicaraguan and Central American Relief Act
- Applicants to adjust under the Hatian Refugee Immigratoin Fairness Act
- Applicants for Temporary Protected Status
- Certain applicants under the LIFE Act
- Applicants for a T visa
- Applicants for a U visa