INS Provides Clarification for Affidavit of Support Confusion
April 21, 2000
It doesn’t take too long to start cringing once you have taken a look at the relatively new I-864 Affidavit of Support form now required of all family based immigrant visa applicants. As many readers have already experienced, individuals who apply for immigrant status based on a petition filed by a family member are being required to present the I-864 in support of their immigrant visa application at a U.S. embassy abroad, or before a U.S. Immigration & Naturalization Service officer if they are being interviewed in the U.S. as applicants for “adjustment of status”. The I-864 must be executed by the petitioning family member, even if he/she has no current income. And if it is the case that the petitioning family member (including the contributions of their household members) does not earn a sufficient income, then a “joint sponsor” who independently meets the income guidelines must execute a separate I-864. Clearly, there is no shortage of fine print, and after one reading of the accompanying instructions, there is no shortage of questions. However, in a recent intra-agency memo (March 7, 2000), the U.S. Immigration & Naturalization Service provides guidance to its officers on common I-864 related questions facing individuals already in the U.S. and undergoing immigrant processing (adjustment of status) at a local INS office.
The following is summary of some of the more important issues addressed:
At what point must the income guidelines be met: at the time the adjustment of status application is filed OR at time of the interview?
Income guidelines must be met at the time of the individual’s adjustment of status interview, not at the time the application is filed. In fact, at INS – Chicago, there currently is a 1-year waiting period between the time of filing and interview.
Does an I-864 Affidavit of Support (and as a consequence the applicant’s case) automatically become deficient should the petitioning relative be receiving public benefits?
No. The reason the question is placed on the I-864 (Part 4 -B) is to ensure that the amount of any “means-tested” benefits not be considered as income in assessing qualifications under the poverty guidelines.
Can the income of the adjustment of status applicant be considered in meeting the applicable poverty guidelines?
Yes, but only if the applicant has lived with their sponsoring relative for the previous 6 months (presumably measured at the time of the interview). For example, when the petitioning U.S. citizen spouse is a “stay at home” Dad who does not earn an income, and the intending immigrant/spouse makes a nice income as a medical technologist and has been living with her U.S. citizen spouse for at least 6 months, then her income can be used in meeting the applicable requirements. In such a case, neither an I-864A supplement, nor an additional separate “joint” Affidavit of Support is required. In this example, however, an I-864A supplement will be required if the intending immigrant has children who are also applying for adjustment of status.
In what other circumstances is the I-864A supplement required?
Generally, if the petitioning U.S. relative does not independently meet the poverty guidelines and the sponsored immigrant is not earning a sufficient income, the income of other household members who are U.S. citizens or lawful permanent residents may also be taken into account. In such situations, that household member will execute the I-864A supplement and no separate “joint sponsor” I-864 is required from that household member.
If a U.S. petitioning relative/sponsor independently meets the poverty guidelines, must their household members also execute I-864A?
No. As long as the income requirements are met by the petitioner’s income alone, no I-864A is required of that petitioner’s spouse or household member – regardless of whether the sponsors income is included as part of a joint tax return filing.
What supporting documentation should be attached to the I-864?
Copies of the sponsoring relative’s federal tax returns and W-2 forms for the previous 3 years along with evidence of current income – such as a recent pay stub, or a letter from an employer confirming their salary and position. If the sponsor did not maintain records of previous tax filings, they may appear at a local Internal Revenue Service office to obtain a letter certifying their income and taxes for the year(s) in question. Importantly, the fact that all supporting documentation is not available and attached to the I-864 at the time of the adjustment of status filing is not determinative – as long as the required documents are presented at the time of the adjustment of status interview.
INCOME GUIDELINES FOR 2000 FOR ALL STATES EXCLUDING HAWAII AND ALASKA – EFFECTIVE APRIL 1, 2000
Size of Family Unit Required Income (125% of Poverty Line)
For family units with more than 8 members, add $3,625 for each additional member in arriving at income requirement.
IMMIGRANT VISA CUT-OFF DATES FOR THE PHILIPPINES:
Family First Preference (unmarried sons and daughters – over 21 years old – of U.S. Citizens): April 8, 1988. No progress.
Family Second Preference
2A (spouses and children of permanent residents):
February 1, 1996. A progression of 1 month.
2B (unmarried sons and daughters, age 21 or older, of permanent residents): February 1, 1993. A progression of 10 days.
Family Third Preference (married sons and daughters of U.S. Citizens): November 15, 1987. No progression for fifth straight month.
Family Fourth Preference (brothers and sisters of adult U.S. citizens): August August 1, 1979. No progression.
Employment Based Visas:
First, Second AND THIRD Preference! (extraordinary and exceptional ability, members of professions holding advanced degrees, and skilled workers and professionals (such as R.N.’s and P.T.’s): CURRENT (no line)
Other workers (unskilled workers): August 1,1994. A progression of 2 months
Fourth Preference (“Special Immigrants” including Religious Workers and certain foreign members of the U.S. Armed Forces): CURRENT. PLEASE NOTE THAT THE SPECIAL IMMIGRANT RELIGIOU.S. WORKER CATEGORY HAS BEEN EXTENDED FOR AN ADDITIONAL 3 YEARS, THROUGH SEPTEMBER, 2000.
PUBLISHED April 21, 2000 – “IMMIGRATION LAW FORUM”
Copyright © 2000-2008, By Law Offices of Richard Hanus, Chicago, Illinois