Understanding Form I-864, the Affidavit of Support

Securing a foothold in the land of opportunities requires a careful and knowledgeable approach, particularly when dealing with documents like an Affidavit of Support, and the New York immigration law firm of Oltarsh & Associates, P.C., stands as a beacon of guidance for those navigating the intricacies of immigration law.

One pivotal aspect of this journey is understanding and properly executing the Affidavit of Support, Form I-864, a crucial component in many New York Green Card applications. The Affidavit of Support is used to demonstrate that the visa applicant will have adequate means and financial resources in the United States, ensuring they will not become a public charge.

The sponsor is required to financially support the visa applicant by showing sufficient income or assets to meet the legal requirements. All family-based petitioners must submit an affidavit of support unless the foreign nationals have a qualifying 40 quarters of social security work history.

What is an Affidavit of Support (Form I-864)?

The Affidavit of Support, completed on Form I-864, is the US government’s attempt to be a legally binding contract required for most family-based immigrant visas.

Immigrant visa applicants are required to provide the Affidavit of Support as part of their application process. It is envisioned as a contract between a sponsor, a U.S. citizen or lawful permanent resident, and the U.S. government, to ensure that the intending immigrant will not become a public charge until certain conditions are met.  The U.S. government seeks to stop the intending immigrant from using designated federal means-tested public benefits. The purpose is to claw back public benefits received by the immigrant, whereby the agency providing those benefits may seek reimbursement from the sponsor.

The sponsor must complete the affidavit of support for each intending family member applying for a green card, highlighting the importance of the prohibition of becoming a public charge within the Immigration & Nationality Act.

The Affidavit of Support must be a properly signed form to be valid. The sponsor’s responsibility is allegedly enforceable, although the contract-specific terms are somewhat illusory.  The US government’s Immigration laws provide that its obligations remain effective until specific conditions are met, such as the immigrant becoming a U.S. citizen, working 40 qualifying quarters, or leaving the U.S. permanently.  

The Affidavit of Support must be submitted with Form DS-260 or Form I-485 in conjunction with permanent resident applications when required, and the sponsor must meet the support income requirements to demonstrate financial eligibility.

Understanding the Minimum Income Requirements

The affidavit of support rules require the sponsor to have sufficient income or assets to support the intending immigrant and potentially family members at or above the HHS poverty guidelines, as specified in Form I-864. Generally, for non-service member families, the sponsor must earn 125% of the poverty guidelines.  If the income is not sufficient, it can be supplemented through easily liquidated assets.  The US government is now asking for evidence of those assets for a one-year period.

What if the Petitioner does not have sufficient income or assets?  A Co-Sponsor can also submit an I-864

All petitioners of family-based immigrant petitions must file an affidavit of support. If the petitioner does not earn sufficient income, a co-sponsor can file an affidavit of support as well.  Co-sponsors must meet specific eligibility requirements. The amount of income also relates to the poverty guidelines, but the poverty guidelines can be met by the additional income of someone living in the household of the sponsor.  A co-sponsor who lives outside the household must meet the income requirements on their own. The petitioner must file the affidavit even if he or she does not meet the financial requirements.

Joint Sponsors and Their Responsibilities

If the sponsor does not earn or have sufficient financial assets, in those instances, a joint sponsor is necessary. The joint sponsor must be at least 18 years old and either a U.S. citizen or a lawful permanent resident. Additionally, they must possess a valid Social Security number and must also have a domicile in the United States.

Each joint sponsor must submit a separate Form I-864, and each is responsible only for the intending immigrant listed on their form. Meeting the minimum income requirements is crucial, but if the sponsor’s income falls short, a joint sponsor can also meet the requirements.

Legal Obligations of Financial Sponsors

Being a financial sponsor is a significant commitment. Most States view the responsibility to encompass only repayment if certain public benefits are sought.

However, some States have extended their interpretation of the law and have found that the sponsor must be willing and able to provide financial support to the intending immigrant and their family members, including basic needs such as food, shelter, and clothing, ensuring that the immigrant does not become a public charge. If a sponsor fails to provide adequate support, depending on where they live, they may be held legally responsible for reimbursing the government for means-tested public benefits provided to the immigrant.

Eligibility to be a Sponsor

To serve as a sponsor for an affidavit of support (Form I-864), individuals must meet specific eligibility criteria established by the Immigration and Nationality Act.

Basic Eligibility Criteria

The primary sponsor, often referred to as the petitioning sponsor, must be either a lawful permanent resident or a U.S. citizen, at least 18 years old, and must maintain a domicile in the United States. Domicile can be demonstrated by physically residing in the U.S. or by showing a clear intent to reestablish U.S. domicile before the intending immigrant obtains permanent residence.

Meeting the Minimum Income Requirement

The sponsor has a minimum income requirement, which is determined by the Federal Poverty Guidelines of 125% of the federal poverty line for their household size.  If the sponsor does not meet the income requirements, they can also include a household member’s income to reach the guidelines or request a co-sponsor to also fill out an affidavit of support.  The sponsor’s household income includes not only their own earnings but may also include the income of certain household members, provided those members are willing to submit support forms and supporting documents.

If the sponsor is on active duty in the Armed Forces and is sponsoring a spouse or unmarried child, the minimum income requirement is reduced to 100% of the poverty guidelines. 

Joint sponsors

If the petitioning sponsor’s income does not meet the minimum income requirement, a joint sponsor may be used. A joint sponsor must independently meet all eligibility requirements, including being a U.S. citizen or lawful permanent resident, having a U.S. domicile, and meeting the minimum income threshold.

Up to two joint sponsors can be used for a single immigrant visa petition, with each joint sponsor responsible only for the intending immigrant(s) listed on their own Form I-864. This flexibility ensures that intending immigrants have adequate financial support, even if the original sponsor’s income is insufficient.

Notification Requirements

Sponsors are required to notify USCIS of any change of address within 30 days by filing Form I-865; failure to do so can result in fines and other penalties.

Income Requirements for the 48 Contiguous States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands

The sponsor and/or co-sponsor must earn or have liquid assets equal to 125% of the poverty guideline to meet the support income requirements for the Affidavit of Support, which is required to support the immigrant’s application for permanent residence. Sponsors on active duty in the U.S. armed forces have special income requirements when petitioning for their spouse or child, and are only required to earn and or have assets of 100% of the poverty guideline.

Federal Poverty Guidelines

The Federal Poverty Guidelines vary depending on the household size. For the 48 contiguous states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands, the income thresholds for non-military active members recently changed substantially and are as follows for fiscal 2025:

• For a household size of 2: $26,437
• For a household size of 3: $31,312
• For a household size of 4: $40,187
• For a household size of 5: $47,062
• For a household size of 6: $53,937
• For a household size of 7: $60,812
• For a household size of 8: $67,687

These figures are subject to change annually, reflecting adjustments in the Federal Poverty Guidelines. The financial sponsor must meet these income requirements to demonstrate their ability to support the intending immigrant. If the sponsor’s income is insufficient, the cash value of assets such as savings, stocks, bonds, or property can be used to meet the support income requirements, provided these assets can be converted into cash within one year without significant hardship. Alternatively, a joint sponsor who meets the income requirements can submit documentation as well.

Household Size and Affidavit of Support

The household size is necessary to calculate the minimum income requirement for the Affidavit of Support. The household size includes the financial sponsor, their spouse, and any unmarried children under the age of 21 who appear on their taxes or are financially supported. Additionally, any other individuals who are claimed as dependents on the financial sponsor’s federal income tax return count as household members.

The household size impacts the minimum income requirement, which is based on the Federal Poverty Guidelines. The financial sponsor must meet this minimum income requirement  in order for the permanent residence to be approved. If the sponsor’s income does not meet the threshold, a joint sponsor who meets the requirements can assist in fulfilling this obligation.

Using Assets to Meet Income Requirements

In the event that there is a deficit of income, the difference can be made up through liquid assets. For a sponsor, the total net value of assets must equal three times the difference between the sponsor’s income and the poverty guideline.  For a co-sponsor, assets must be five times the difference.

The current administration is requesting substantial documents, including evidence of those assets for a year, and requiring twelve bank account statements, for example. The average monthly balance will then be calculated. The sponsor’s obligation continues until the immigrant leaves the United States permanently or acquires citizenship.

Exemptions from Submitting an Affidavit of Support

Certain individuals are exempt from submitting an Affidavit of Support. These exemptions include:

• Refugees
• Asylees
• Certain immigrants who are exempt under the Child Citizenship Act
• Widows and widowers of U.S. citizens who self-petition for permanent residency
• Abused or battered spouses or children who self-petition for green cards under the Violence Against Women Act (VAWA)
• Individuals who have worked with a valid Social Security number for forty quarters

Exemptions are different than categories of intending immigrants who are not subject to affidavit of support rules, such as DV lottery winners and foreign nationals petitioned through labor certifications and business categories.

Special Exemptions: Self-Petitioning Widows, the Child Citizenship Act, and Substitute Sponsors

Self-petitioning widows or widowers with approved I-360 petitions are exempt under the affidavit of support requirements.  Minor children of US citizens who will automatically become derivative citizens upon entry into the US as permanent residents are also outside the affidavit of support rules. While these individuals are not required to submit a sponsor’s Affidavit of Support, they may still need to provide a self-affidavit of support form in support of their immigration application. These exemptions recognize the unique circumstances of these groups and provide alternative pathways to secure their immigration status.

Special rules also apply to immigrants whose sponsors have died after the petition is approved.  They may request a substitute sponsor.  Special rules apply, and the substitute sponsors are strictly defined by statute.

The Duration of the Affidavit of Support Requirements and Special Considerations

The affidavit of support responsibility continues until the immigrant acquires citizenship, can be credited with 40 quarters of work, departs the U.S. permanently, or passes away. The affidavit remains active even if, for example, a petitioner filed for a spouse but later divorces the spouse before that sponsored individual worked for forty quarters or became a U.S. citizen.

If the sponsored immigrant receives public benefits, the government may request repayment from the sponsor.

Navigating the Process with Expertise in Citizenship and Immigration Services

Filing an Affidavit of Support requires careful attention to detail and submission of accurate supporting documents such as tax returns, W-2 or 1099 statements, and possibly evidence of assets. Given the complexities involved, consulting with experienced immigration professionals can provide valuable guidance to ensure compliance and a smoother application process.

If you are preparing to file an Affidavit of Support or have questions about the process, seeking expert legal advice can be instrumental in navigating the requirements effectively and avoiding common pitfalls.

How Oltarsh & Associates, P.C. Can Assist You

With over 50 years of experience in immigration law, Oltarsh & Associates, P.C. offers comprehensive legal services tailored to your unique situation. Their knowledgeable attorneys can guide you through the complexities of the Affidavit of Support process, ensuring all forms and supporting documents are accurately completed and submitted.

Whether you are applying for a family-based green card, employment-based visa, or need assistance with naturalization and citizenship, Oltarsh & Associates, P.C. provides personalized support every step of the way. Contact us today for a free case evaluation and take the first step towards securing your future in the United States.