Affidavit of Support
Form I-864, Affidavit of Support under Section 213A of the INA, is a contract an individual signs agreeing to use their financial resources to support the intending immigrant named on the affidavit. The individual who signs the affidavit of support becomes the sponsor once the intending immigrant becomes a lawful permanent resident. The sponsor is usually the petitioner who filed an immigrant petition on behalf of the intending immigrant.
An affidavit of support is a legally enforceable contract, and the sponsor’s responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or is credited with 40 quarters of work (usually 10 years).
The law concerning the affidavit of support is found in Sections 212(a)(4) and 213A of the Immigration and Nationality Act (INA). The provisions are codified in Title 8 of the Code of Federal Regulations (CFR) at 8 CFR 213a.
Submitting an Affidavit of Support
The following individuals are required by law to submit a Form I-864, Affidavit of Support completed by the petitioner to obtain an immigrant visa or adjustment of status:
All immediate relatives of U.S. citizens (which include parents, spouses, and unmarried children under the age of 21, including orphans) and relatives who qualify for immigration to the United States under one of the family based preferences:
- First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
- Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
- Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
- Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
- Employment based preference immigrants in cases only when a U.S. citizen or permanent resident relative filed the immigrant visa petition, or such relative has a significant ownership interest (5% or more) in the entity that filed the petition.
Note: An individual listed above does not need to submit an affidavit of support if they can show that they EITHER:
- Already worked 40 qualifying quarters as defined in Title II of the Social Security Act
- Can be credited with 40 qualifying quarters as defined in Title II of the Social Security Act
- Are the child of a U.S. citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under Section 320 of the Immigration and Nationality Act, as amended by the Child Citizenship Act of 2000
Responsibilities as a Sponsor
When you sign the affidavit of support, you accept legal responsibility for financially supporting the sponsored immigrant(s), generally until they become U.S. citizens or are credited with 40 quarters of work. Your obligation as a sponsor also ends if you or the individual sponsored dies or if the individual sponsored ceases to be a lawful permanent resident and departs the United States.
Note: Divorce does NOT end the sponsorship obligation.
If an immigrant you sponsored receives any means-tested public benefits, you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency or the immigrant can sue you in court to get the money owed. Any joint sponsors and household members who allowed the sponsor to combine their income with the sponsor’s income to meet the minimum income requirements are also legally responsible for financially supporting the sponsored immigrant. In fact, any joint sponsor and household member is jointly or severally liable with the petitioning sponsor, meaning that the joint sponsor and household member are independently liable for the full extent of the reimbursement obligation and can be sued in court or be asked to pay the money owed, even if the petitioning sponsor is not sued or asked for money.
Penalties for Falsiying an Affidavit
If you knowingly and willfully falsify or conceal a material fact or submit a false document with your Form I-864, we will deny your Form I-864 and may deny any other immigration benefit. In addition, you will face severe penalties provided by law and may be subject to criminal prosecution. The U.S. government may pursue verification of any information provided on or in support of this affidavit, including employment, income, or assets with the employer, financial or other institutions, the IRS, or the Social Security Administration.
If you include in this affidavit of support any information that you know to be false, you may be liable for criminal prosecution under the laws of the United States.
If you fail to provide notice of your change of address, as required by 8 U.S.C. 1183a(d) and 8 CFR 213a.3, you may be liable for the civil penalty established by 8 U.S.C. 1183a(d)(2). The amount of the civil penalty will depend on whether you failed to provide this notice because you were aware that the immigrants you sponsored had received Federal, state, or local means-tested public benefits. If the failure to report your change of address occurs with knowledge that the sponsored immigrant received means-tested public benefits (other than benefits described in section 401(b), 403(c)(2), or 4ll(b) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which are summarized in Part 8. Sponsor’s Contract, Statement, Contact Information, Declaration, Certification, and Signature of Form I-864) such failure may result in a fine of not less than $2,000 or more than $5,000. Otherwise, the failure to report your change of address may result in a fine not less than $250 or more than $2,000.
When NOT to Submit an Affidavit of Support
The following types of people do not need to file an affidavit of support:
- An individual who has earned or can be credited with 40 qualifying quarters (credits) of work in the United States
- An individual who has an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant as a self-petitioning widow or widower
- An individual who has an approved Form I-360 as a battered spouse or child
- Orphans adopted by U.S. citizens abroad if a full and formal adoption takes place before the orphan acquires permanent residence and both adoptive parents have seen the child before or during the adoption
Affidavit of Support For Fiancé(e), Spouse, or Child as a “K” Nonimmigrant
If your relative is either a K-1 fiancé(e), a K-3 spouse, or a K-2 or K-4 child of fiancé(e) or spouse, you do not need to submit an affidavit of support at the time you file your Form I-129F petition. Instead, you should submit an affidavit of support at the time that your fiancé(e), spouse, or child adjusts status to permanent resident after coming to the United States.
Sponsor for Affidavit of Support
If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a permanent resident. You must have a domicile in the United States or a territory or possession of the United States. Usually, this requirement means you must actually live in the United States, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, and that you still have your domicile in the United States.
Section 213A of the INA permits both a "joint sponsor" and a "substitute sponsor" in certain cases.
A joint sponsor is someone who is willing to accept legal responsibility for supporting your family member with you. A joint sponsor must meet all the same requirements as you, except the joint sponsor does not need to be related to the immigrant. The joint sponsor (or the joint sponsor and his or her household) must reach the 125% income requirement alone. You cannot combine your income with that of a joint sponsor to meet the income requirement.
If the visa petitioner has died after approval of the visa petition but U.S. Citizenship and Immigration Services (USCIS) decides to let the petition continue, a substitute sponsor must file a Form I-864 in place of the deceased visa petitioner. In order to be a “substitute sponsor,” you must be related to the intending immigrant in one of the following ways:
- Child (if at least 18 years of age)
- Legal guardian of the beneficiary
You must also:
- Be U.S. citizen or national or a permanent resident
- Be at least 18 years of age
- Be domiciled (live) in the United States
- Meet all of the financial requirements of a sponsor pursuant to INA 213A
The substitute sponsor assumes all of the obligations of an I-864 sponsor.
How to File an Affidavit of Support
You, the sponsor, should complete Form I-864 when your relative has been scheduled for an immigrant visa interview with a consular officer overseas or when your relative is about to submit an application for adjustment to permanent resident status with USCIS or with an Immigration Court in the United States. If you have a joint sponsor, they must also complete Form I-864. If you are using the income of other household members to qualify, then each household member who is accepting legal responsibility for supporting your relative must complete a separate Form I-864A, Contract Between Sponsor and Household Member.
You are required to provide your U.S. federal income tax return for the most recent tax year as well as proof of current employment. If you were not required to file a tax return in any of these years you must provide an explanation. Failure to provide the tax return or evidence establishing that you were not required to file will delay action on your relative's application for permanent residence. If this information is not provided, this will result in denial of an immigrant visa or adjustment of status.
When you have completed the affidavit of support, compiled the necessary documentation, and had the affidavit notarized in the United States or before a U.S. consular or immigration officer, you should provide this packet of information to your relative to submit with his or her application for permanent resident status. If you are given specific instructions to file your affidavit of support directly with the National Visa Center, you should follow those instructions.
You also must meet certain income requirements (whether you are a sponsor, a joint sponsor, or a substitute sponsor). You must show that your household income is equal to or higher than 125% of the U.S. poverty level for your household size. (Your household size includes you, your dependents, any relatives living with you, and the immigrants you are sponsoring.)
If you, the sponsor, are on active duty in the Armed Forces of the United States, and the immigrant you are sponsoring is your spouse or child, your income only needs to equal 100% of the U.S. poverty level for your household size.
To see if you are above the poverty level, see Form I-864P, HHS Poverty Guidelines for Affidavit of Support.
If You Can’t Meet the Minimum Income Requirements
If you cannot meet the minimum income requirements using your earned income, you have various options:
You may add the cash value of your assets. This includes money in savings accounts, stocks, bonds, and property. To determine the amount of assets required to qualify, subtract your household income from the minimum income requirement (125% of the poverty level for your family size). You must prove the cash value of your assets is worth five times this difference (the amount left over).
- If the person being sponsored is a spouse, or son/daughter (who is 18 years or older) of a U.S. citizen: The minimum cash value of assets must be three times the difference between the sponsor’s household income and 125% of the federal poverty guide line for the household.
- If the person being sponsored is an orphan coming to the United States for adoption: The adoptive parents’ assets need to equal or exceed the difference between the household income and 125% of the federal poverty line for the household size.
- You may count the income and assets of members of your household who are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract Between Sponsor and Household Member. If the relative you are sponsoring meets these criteria you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.
- You may count the assets of the relatives you are sponsoring.
Change of Address
If you change your address after you become a sponsor, you are required by law to notify USCIS within 30 days by filing Form I-865, Sponsor's Notice of Change of Address. If you fail to notify USCIS of your change of address, you may be fined.