Form I-864 - Affidavit of Support

In almost all marriage-based green card applications, the foreign national spouse applying for a lawful permanent resident (LPR) status must show that he or she is not likely to need financial assistance from the government after receiving a green card. Generally, if the green card process takes place in the United States, the alien spouse does this by having his or her U.S. citizen spouse submit an Affidavit of Support (Form I-864) with the alien’s Adjustment of Status application. If the alien completes the green card process overseas, the Affidavit of Support is filed with the National Visa Center (NVC) or U.S. embassy or consulate with jurisdiction over the immigrant visa application.

The Affidavit of Support’s purpose is to demonstrate that the U.S. citizen spouse has the financial resources to support the alien spouse. For green card approval, the U.S. citizen spouse must earn at least 125% of the federal Poverty Guidelines income level for a family of his or her size, or, if the American spouse’s earnings are too low, assets valued at five times the difference between 125% of the federal Poverty Guidelines income level and his or her actual income.

A family for federal Poverty Guideline purposes will always have at least two people, since the petitioner U.S. citizen spouse and foreign national green card applicant count as members. As of December 2005, the poverty line annual income for a family of two living in the U.S. is $12,830 (except for Alaska and Hawaii, where it is slightly higher); 125% of this figure is $16,037. For each additional dependent, the federal Poverty Guidelines income level goes up about $4,000.

Thus, for a two person family, the petitioning U.S. citizen must earn at least $16,037. If he or she earns less, but has assets such as money, investments, or property, these assets can help meet the minimum level. For example, if the petitioning U.S. citizen earns $12,037, but has assets of $20,000 or more (five times the difference between 125% of the federal Poverty Guidelines and the sponsor’s income), he or she could serve as sole financial sponsor.

If the U.S. citizen husband or wife does not have enough income or assets, another U.S. citizen or permanent resident can add his or her income or assets to the petitioning relative’s (and thus become a joint financial sponsor for the Adjustment of Status/green card applicant) by submitting an additional Affidavit of Support. In order to qualify as a joint sponsor, a U.S. citizen or permanent resident must be at least 18 years old and reside in the United States.

Anyone who signs an Affidavit of Support must submit proof of income. Until recently, this meant submitting federal tax returns and related tax documents for the preceding three years, plus a letter from an employer or proof of self-employment. At present, only the preceding year’s federal tax return is required in most cases. If the financial sponsor is relying on assets in addition to or lieu of income, he or she must submit proof of ownership and value.

The Affidavit of Support is a contract between the person signing it, on the one hand, and both the beneficiary and the U.S. government, on the other hand, obligating the signer to repay the government if the alien receives financial assistance from the government after becoming a LPR. A recent case also held that a U.S. citizen that divorced his alien spouse had to pay her support because he had executed an Affidavit of Support, regardless of whether state divorce law required him to pay spousal support.

The sponsor’s financial obligation under the Affidavit of Support will last until the alien naturalizes or works for 40 quarters; thus the duty to support an alien spouse last ten years or more. As a result, financial sponsors must notify the U.S. government within 30 days of a change of address. Failure to do so can result in a substantial fine.

Completing Form I-864 properly and documenting sufficient income or assets can be complicated. Errors and omissions regarding the Affidavit of Support are a common reason for green card application denials. Therefore, common sense dictates that petitioning U.S. citizen relatives and green card applicants consult with a knowledgeable and experienced immigration attorney before starting the green card process.