CIS Eases Affidavit of Support Requirements for Adjustment of Status Applicants
December 22, 2005

For applicants undergoing permanent residence processing within the U.S. (aka adjustment of status), the Affidavit of Support component just got easier.

With the exception of employment based filings, all adjustment of status applicants are required to submit an I-864, Affidavit of Support executed by the their petitioning family member. If the petitioning family member’s income does not meet the minimum income guidelines, then a “joint sponsor” whose income is sufficient is eligible to present a supplementary I-864 in support of the applicant’s adjustment of status filing.

The plain language (although some might say plain, complex language) of the instructions accompanying the I-864 sets forth a requirement that the affiant, in most cases, attach copies of their 3 most recent federal tax returns (1040), including W-2’s, and evidence of their current salary – such as a copy of a recent paystub or letter from their employer indicating their salary and position.

If the sponsor did not file taxes for 1 or 2 of those years, or did not earn a sufficient income 2 or 3 years prior to the filing, the I-864 would not necessarily be deemed inadequate, that is, as long as the sponsor’s current income met the applicable income guideline. Nevertheless, copies of any tax returns filed within the 3 year period prior to the adjustment of status submission were required to be attached to the I-864.

Additionally, at the time of the adjustment of status interview (generally scheduled some 12 months following application filing), the applicant’s sponsor is usually asked to produce their most up to date tax return – assuming another tax year passed since the time the adjustment of status package was originally filed.

As of November 23, 2005, however, along with evidence of current income, all that will be required of an applicant’s sponsor and/or joint sponsor is a copy of the tax return they filed in the year just prior to the adjustment of status submission, and not for the previous three years. And the only circumstances under which an applicant’s sponsor might be required to present an up to date tax return and/or paystub at the time of the adjustment of status interview is if the adjudicating officer questions the authenticity of the documentation, determines that the income reflected on the previous tax return was insufficient, or it appears that the sponsor’s earning capacity may have changed due to a change of job.

The recent CIS policy directive also confirms that the presentation of an Internal Revenue Service transcript of tax filing (requested by filing For 4506T with the IRS) , in lieu of copies of the sponsor’s 1040 tax return and W-2 form, will be sufficient for proving the sponsor’s income.

Additionally, all adjustment of status applicants are reminded to include Form I-864, with supporting documentation, when initially submitting their adjustment of status package, and that such applicants should no longer count on having the opportunity to present the I-864 for the first time at the adjustment of status interview – as was previously allowed.

Lastly, it is important to note that the new policy described above only applies to adjustment of status applicants undergoing processing before Citizenship and Immigration Services (CIS) in the U.S., and does not impact immigrant visa applicants who are being consular processed by U.S. Department of State officers abroad. In such cases, an applicant’s sponsor will still be expected to produce a full 3 years of tax documentation from the start, along with evidence of current income.

For more information on this new policy see: http://uscis.gov/graphics/lawsregs/handbook/AffSupprt112305.pdf.

For more information on I-864 income guidelines see: http://uscis.gov/graphics/formsfee/forms/files/I-864p.pdf.