This guide provides a summary of how receiving public benefits in the United States may or may not affect an alien under the "public charge" provisions of the immigration laws.
• INS may consider an alien’s use of the following in deciding whether to issue a "green card:"
Note: INS will not consider CASH WELFARE or NON-CASH PROGRAMS received by an alien’s children or other family members for public charge purposes, unless the cash welfare is the family’s only means of support.
Notes:
• REFUGEES AND PEOPLE GRANTED ASYLUM can use any public benefits, including cash welfare, health care, food programs, and other non-cash programs without hurting their chances of getting a "green card." • SPONSORING RELATIVES – Using benefits, including cash welfare, health care, food programs, and other non-cash benefits, does not prevent citizens and LPRs from sponsoring relatives. However, sponsors must submit an Affidavit of Support showing that they have enough money (alone or with a co-sponsor) to support their relatives at 125 percent of the poverty level. • BECOMING A NATURALIZED U.S. CITIZEN – LPRs (who already have a "green card") cannot be turned down for U.S. citizenship for lawfully receiving any public benefits for which they are eligible. Need More Information?
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Additional FAQs From the State Department
Affidavit
of Support - Form I-864
Frequently Asked Questions
Who
needs an I-864 and Who doesn't?
Q: Who needs an I-864?
A: * Applicants for family-based immigrant visas, including
orphans. (Self-petitioning widow/ers and battered spouses and children are
exempt from this requirement; and
* Applicants for employment-based immigrant
visas where a relative filed the immigrant visa petition or has a 5 percent or
greater ownership interest in in the business that filed the petition.
Q: Can an applicant who needs an affidavit
of support but is applying for a nonimmigrant or immigrant visa in other than
one of the categories specified in the new provisions (Section 213A of the
Immigration and Nationality Act (INA) of 1952, as amended) use the I-864?
A: No. Section 213A limits use of the I-864 to the specified immigrant visa
cases. All other applicants that might require an affidavit of support should
use Form I-134.
Q: Do persons who are in immigrant visa
categories that do not require the I-864 affidavit of support need to conform
with the income and documentary requirements of the new public charge
provisions?
A: No. Those applicants whose visa categories do not require the I-864 will
continue to be adjudicated under previously existing public charge guidelines.
Q: Should K-1 Fiance visa applicants use
the I-864 or the I-134?
A: Since fiances are technically nonimmigrant visa applicants, they should
use the I-134. They will have to submit an I-864 to INS at the time of
adjustment of status in the United States, however.
Q: Should Diversity Visa (DV) or Returning
Resident (SB) applicants use the I-864 or the I-134?
A. They should use the I-134. The I-864 can only be used in the specified
categories (most family-based and certain employment-based cases). All other
cases must use the I-134 if an affidavit of support is needed.
Q: Do the new income requirements apply to
all immigrant visa applicants even if they use the I-134?
A: No. The 125 percent minimum income requirement, the need for the last
three years income tax returns, etc. only apply to those cases in which an I-864
is required. All other cases will be adjudicated on the basis of previously
existing guidance and procedures.
Household
Size
Q: How is household size
determined for the purposes of the I-864?
A: Household size is defined in the Regulation as:
The sponsor;
All relatives by blood, marriage or adoption
residing in the sponsor's household;
All dependents listed on the most recent tax
return, whether or not they reside in the sponsor's household;
Any individuals for whom the sponsor has
signed an I-864 and for whom the contractual obligation still exists;
The beneficiary (principal applicant);
The beneficiary's accompanying dependents.
Q: Can a petitioner with limited financial
resources sponsor only the principal alien and not his/her spouse and eligible
children?
A: Yes. The petitioner can limit the number of sponsored immigrants listed
on affidavit of support to the number of people who actually intend to immigrate
at that time. The principal applicant must be one of the sponsored
immigrants, however. By limiting the number of sponsored individuals, the
petitioner would reduce the household size and thereby face a lower minimum
income requirement. The petitioner would still be able to file another affidavit
of support on behalf of the principal applicant's eligible dependents at a later
date when the petitioner and the principal applicant have improved their
financial situation. When the petitioner files a new affidavit of support for
the remaining eligible family members, the principal applicant, and any of
his/her family members who may have already immigrated, would be included in the
household for that I-864.
Q: How do you count children of a divorced
couple who reside with one parent part of the time and with the other parent the
other part?
A: A divorced parent's dependent children are members of his or her
household, even if they live part of the time with the other former spouse. A
parent always has a legal obligation to support his or her children. Although
only one of the parents may be legally entitled to claim the child as a
dependent on the tax return, the child must be considered as part of both
parents' households for purposes of the affidavit of support unless a parent can
show that he or she has been relieved of any legal obligation to support the
child.
Signatures
on I-864 and I-864A must be notarized.
Q: Who can notarize the
signatures?
A: Signatures on I-864 and I-864A can only be notarized by a U.S.
Immigration and Naturalization Service Officer, a U.S. consular officer or a
U.S. notary public. Forms that have been notarized by a foreign notary public
cannot be accepted by the consular officer.
Tax
Returns
Q: Will the State
Department ever excuse the lack of filing of tax returns for the previous three
years, other than when the sponsor was not obligated to file during a given
year?
A: No. There is a statutory requirement that the sponsor must submit tax
returns for each of the three years immediately prior to the visa interview in
which he or she was obligated to file. Note that Americans and legal permanent
residents who are working abroad are required by IRS to file a return even if
most or all of their overseas income is excluded from U.S. taxes.
Q: How can a sponsor who was obligated to
file tax returns, but failed to do so, qualify as a sponsor?
A: A sponsor may file a late or amended tax return to IRS. He or she can
then submit copies of the late or amended return(s) for the year(s) in which he
or she was obligated to file. Until such time as the late or amended return has
been filed, the I-864 will be considered incomplete.
Q: If the sponsor owns a business, should
he/she submit individual or business tax returns?
A: Individual returns. Consular officers can only accept individual tax
returns, since it is the individual and not the business who is sponsoring the
applicant(s).
Q: If the sponsor does not have copies of
his/her tax returns, can s/he submit a summary of the returns provided by the
Internal Revenue Service (IRS)?
A: Yes.
Domicile
Q: Can a U.S. citizen or
legal permanent resident petitioner who is not domiciled in the United States be
a sponsor?
A. No. The law requires that sponsors be domiciled in any of the states of
the United States, the District of Columbia, or any territory or possession of
the United States.
Q: If the petitioner does not have a
domicile in the United States, can a joint sponsor file an I-864?
A: No. The INS Office of General Counsel has determined that under the act
and regulations, a joint sponsor cannot be authorized in cases where the
petitioner cannot be a sponsor by virtue of domicile. The petitioner must first
meet all requirements for being a sponsor (age, domicile, and citizenship)
except those relating to income before there can be a joint sponsor.
Q: How is domicile determined?
A: Domicile is a complex issue and must be determined on a case by case
basis. To qualify as a sponsor, a petitioner who is residing temporarily abroad
must have a principal residence in the U.S. with the intent to maintain that
residence for the foreseeable future. Legal permanent resident sponsors must
further demonstrate that they have maintained their legal permanent resident (LPR)
status. A U.S. citizen or legal permanent resident spouse or dependent who has
maintained a residence in the U.S. and/or whose spouse/parent works in one of
the categories listed below would also qualify as a sponsor.
Many U.S. citizens and legal permanent
residents reside outside the United States on a temporary basis, usually for
work or family considerations. Temporary is a relative term and may cover an
extended period residing abroad. Provided the sponsor can establish to the
consular officer's satisfaction that the sponsor left the U.S. for a limited and
not indefinite period of time, intended to maintain a U.S. domicile and has
evidence of continued ties to the U.S., he or she can be considered to be
domiciled in the U.S.
Note that the INS regulation provides that
sponsors who can show that they had a domicile in the United States, but who are
now living temporarily abroad because of certain types of employment, shall be
considered to have retained their domicile in the United States. The following
are the qualifying types of employment. A sponsor retains his or her domicile if
the sponsor is:
- employed by the government of the United
States; an American institution of research recognized as such by the Attorney
General; an American firm or corporation engaged in whole or in part in the
development of foreign trade and commerce with the United States or a subsidiary
thereof; a public international organization in which the United States
participates by treaty or statute;
Or -- authorized to perform the ministerial
or priestly functions of a religious denomination having a bona fide
organization within the United States and is stationed abroad pursuant to that
calling;
Or -- engaged solely as a missionary by a
religious denomination or by an interdenominational mission organization having
a bona fide organization within the United States and is stationed abroad
pursuant to that calling.
There may be other circumstances in which a
sponsor can show that his or her sojourn abroad is clearly of a temporary
nature, so that the sponsor can be found still to have a domicile in the United
States. For example, persons who are abroad temporarily to study,
or teach, or engage in other activities that
do not meet the requirements of Section 316(b), 317, or 319(b) of the
Immigration and Nationality Act (listed in the preceding paragraph) may
nevertheless have a domicile in the United States if they can satisfy the
consular officer that they did not, in fact, give up their domicile in the
United States and establish a domicile abroad.
Q: How can the petitioner establish a
domicile?
A: In cases where the sponsor has clearly not maintained a domicile in the
U.S., the question becomes when the sponsor can be deemed to have re-established
U.S. residence. To do this, the sponsor must have taken a credible combination
of steps to make the U.S. his immediate principal place of abode. Such steps
might include finding U.S. employment, locating a place to live, registering
children in U.S. schools and other indices of residence. The sponsor should also
have made other arrangements to relinquish residence in the third country. It is
not necessary for the sponsor to precede the sponsored family members to the
U.S. to re-establish residence and domicile provided that the sponsor has
taken the type of concrete steps outlined above. It is important to note in such
cases that a sponsored immigrant may not enter the United States prior to the
sponsor's return to take up residence. He or she must either travel to the
United States with the sponsor or at some date after the sponsor's entry into
the U.S.
Documents
for accompanying family members
Q: Does each
accompanying family member need separate documents if they are traveling with
the principal applicant?
A: Each accompanying dependent must have either a signed and notarized
original or a photocopy of the principal applicant's signed and notarized I-864
and I-864A (if needed). Copies may only be used for dependents whose names
appear on the principal's original forms. Copies of supporting documents are not
required for dependents applying for visas or adjustment of status together with
the principal immigrant.
Family members who may apply for visas and
travel together, but for whom separate visa petitions have been filed, must each
submit a complete set of supporting documentation along with a signed and
notarized I-864, any joint I-864 that may be required and form I-864A if needed.
Joint
sponsors
Q: Can there be separate
joint sponsors for separate members of the beneficiary's family?
A: No. Each joint sponsor must meet the minimum 125 percent income
requirement for the indicated household size which includes: the sponsor; all
household members related by blood, marriage or adoption residing in his or her
household; all dependents, including those not residing in the same household,
claimed on the sponsor's most recent income tax return; any individual(s) for
whom the sponsor has filed a separate I-864 which is still in effect; the
principal applicant; and the applicant's accompanying dependents.
Death
of sponsor
Q: If the sponsor dies
after the principal applicant has immigrated to the United States but before all
qualified family members who are following to join have immigrated, can they
obtain another sponsor?
A: Yes. Any qualified person may serve as the sponsor in such
circumstances.
Q: Does the death of a sponsor terminate
any obligation to the sponsored immigrant(s)?
A: Yes. However, the sponsor's estate remains liable for any requests for
repayment of benefits that arose prior to the sponsor's death.
Does
the I-864 ever expire?
Q: Does the I-864 have
an expiration date after which a new form must be completed?
A: In general, the I-864 must be submitted to the consular officer within
six months of the sponsor's signature. Otherwise a new form will be required.
Once the form has been submitted and accepted by a consular officer, however, it
will not expire. If the form was submitted within six months of the sponsor's
signature, but more than 12 months pass before the visa is issued, new
supporting documents will be required (the most recent tax return(s), a current
employment letter, etc.)
Change
in poverty guidelines
Q: If the poverty
guidelines change between the time the petitioner signed the I-864 and approval
of an immigrant visa, must the petitioner/sponsor submit a new I-864?
A: No. As long as the I-864 was submitted to a consular officer within six
months of the date it was signed and notarized, a new I-864 is not required.
However, the petitioner/sponsor must meet the minimum income requirement based
on the poverty guidelines in effect on the date of visa issuance, not those in
effect at the time the form was signed.
How
to count assets
Q: May the
petitioner/sponsor count assets to meet the 125 percent minimum income
requirement?
A: Yes. The sponsor would count his/her income first. If not sufficient
s/he may count personal assets and/or the income and assets of qualifying
household members who have signed an I-864A. If, using all of those sources, the
minimum income requirement is met, the affidavit would be
"sufficient." To be counted, the cash value of assets must equal five
times the difference between the sponsor's income and 125 percent of the poverty
line for the indicated household size. Thus for a petitioner/sponsor whose
household size is four and who has an income of $18,000, his/her assets would
need to equal at least $10,310 ($20,562 -- poverty level for a family of four --
minus $18,000 = $2,562, times five). S/he would also need to present evidence of
all mortgages, liens, and liabilities against the claimed assets.
Assets
outside the United States
Q: Will the intending
immigrant be able to count significant assets that he or she owns that are
currently outside the United States, such as real estate or personal property?
A: Yes, but only under the following conditions:
The assets must be readily convertible to
cash within 12 months;
The applicant must clearly demonstrate the
ability to take the money or assets out of the country where they are located.
Many countries have strict regulations which severely limit the amount of cash
or liquid assets an individual may take or send abroad;
The assets equal at least five times the
difference between the sponsor's income and 125 percent of the poverty line for
the indicated household size.
Can
free housing be counted as income?
Q: Can
petitioners/sponsors who receive housing and other tangible benefits in lieu of
salary count those benefits as income?
A: Yes. The sponsor may rely on income that is not subject to taxation
(such as a housing allowance for clergy or military personnel), as well as
taxable income. In a given case, however, the sponsor would bear the burden of
proving the nature and the amount of any income on which he or she relies, but
that is not included as wages/salary or other taxable income. Evidence of such
income can be shown through notations on the W-2 Form (such as box 13, for
military allowances), Form 1099, or other documents that substantiate the
claimed income.
Can
a beneficiary's ongoing income be counted?
Q: Can a visa
applicant's steady income, which will continue after his/her obtaining lawful
permanent resident status, be counted with the sponsor's income?
A: Under certain circumstances, yes. In order for the income to be counted,
the applicant must have resided in the sponsor's household for six months prior
to the completion of the Affidavit of Support. The applicant will be required to
clearly demonstrate that the income will continue after his/her taking up
residence in the United States.
Offers
of employment
Q: Can a credible offer
of employment for the visa applicant replace or supplement an insufficient
affidavit of support?
A: No. The new law does not make any provision for the consideration of
offers of employment in lieu of the I-864. Similarly, an offer of employment may
not be counted in reaching the 125 percent minimum income. Such an offer can be
taken into account in assessing the applicant's ability to overcome any public
charge grounds of inadmissibility.
Define
"armed forces"
Q: Are the Coast Guard
and Merchant Marine considered to be members of the armed forces of the United
States and entitled to the computational standard of 100 percent?
A: For purposes of 212(a)(4), the Coast Guard is considered to be a part of
the armed forces. Active duty members of the Coast Guard therefore need only
meet the 100 percent of the poverty guideline minimum income requirement.
Members of the Merchant Marine must meet the full 125 percent income
requirement.
Is
a "sufficient" I-864 the only consideration?
Q: Given the contractual
nature of the I-864, affidavit of support, and the prohibition of most federal
means-tested public benefits to most aliens for at least the first five years
after their arrival in the U.S., will consular officers need to look beyond a
"sufficient" affidavit of support for other public charge issues?
A: Yes. Section 212(a)(4)(B) lists the factors a consular officer should
take into consideration when making public charge determinations. A Section 213A
affidavit of support, I-864, is only one of the factors to be considered.
Consular officers will continue to consider the totality of the sponsor's and
applicant's financial situations to confirm to the extent possible that the
applicant will have adequate financial support and is not likely to become a
public charge.
