Navigating the Affidavit of Support: Form I-864 Explained

For families in Chicago, across Illinois, and throughout the Midwest,  pursuing a green card, that is, lawful permanent resident status through the immigration process involves many required forms. Few documents carry the weight and the long-term commitment of the Affidavit of Support, formally known as Form I-864. This document is more than just paperwork; it is a legally binding contract that establishes a sponsor’s financial responsibility for the intending immigrant.  Nevertheless, it is often misunderstood.

What is Form I-864, and Why is it Necessary?

The U.S. government requires the Affidavit of Support to ensure that sponsored immigrants will not become a “public charge,” meaning they will not become primarily dependent on government assistance (Source: USCIS).  Yet, most who come and stay to the U.S., rather than depart with their loved ones, do so because they find it easier to get a job or start a career due to what seems like an incredibly stable economy.

By signing Form I-864, the sponsor (usually the petitioning relative) agrees to use their own financial resources to support the sponsored immigrant. This commitment ensures, to some politicians, that the immigrant has financial backing to live above the poverty line. The sponsorship creates the potential for a long-term obligation that divorce, job loss, or a change of heart generally will not end. The agreement constitutes a binding contract between the sponsor and the U.S. government.  Nevertheless, often, the applicant earns more than the sponsor.  The challenge is, when does that matter to the sponsor and for the purpose of the forms!

Who Must File the Affidavit of Support?

The requirement to file Form I-864 applies primarily to most family-based green card petitions.

The following individuals typically need an I-864 filed on their behalf:

• All immediate relatives of a U.S. citizen (spouses, unmarried children under 21, and parents).
• All family-preference immigrants (unmarried adult children, married children, and siblings of U.S. citizens, and spouses and children of permanent residents).
• Certain employment-based immigrants, if a relative filed the petition or owns a significant interest (5  or more) in the petitioning business.

The person who files the immigrant petition (Form I-130) must always be the primary sponsor, even if they do not meet the financial requirements for sponsorship. If the primary sponsor does not meet the income threshold, they must still file the I-864. However, a joint sponsor must also complete a separate Form I-864.

Who is a Suitable Joint Sponsor

This varies depending upon the couple and their relationships.  In addition, the beneficiary’s income can also be considered, but the beneficiary is considered a household member for the purposes of the form I-864.  That is, their supplemental form much be attached and included as part of the Petitioner’s I-864.  That is, where the beneficiary’s earnings were earned based upon lawful status to work.  This may be due to income earned while possessing a valid unexpired employment authorization card or a valid work visa.

Meeting the Income Requirements

The most common hurdle for a sponsor is meeting the minimum income requirement. The law requires a sponsor to demonstrate an income of at least 125% of the Federal Poverty Guidelines (FPG) for their household size.

The only exception to the 125% rule is for active-duty U.S. military members petitioning for their spouse or minor child, who must only meet 100% of the FPG.

Calculating Your Household Size and Income

To figure out the income you need, you first determine your household size, which must include:

• You, the sponsor.
• All people you claimed as dependents on your most recent federal income tax return.
• The intending immigrant(s).
• Any other immigrant you have previously sponsored on a separate I-864 and whose obligation has not yet terminated.

Once you calculate the total household size, you compare your current annual household income (generally from your most recent federal tax return) against the FPG chart. Since these guidelines are updated annually by the Department of Health and Human Services, it is essential to rely on the most current figures for an accurate assessment.

When a Sponsor’s Income is Insufficient

What happens if your income doesn’t meet the threshold? We approach these situations with planning and persistence, helping you explore valid alternatives:

1. Using Assets: You may use the cash value of your assets to make up the difference. Countable assets include savings accounts, stocks, bonds, and the equity in real estate. The required cash value of assets is generally five times the difference between your income and the 125% FPG level. If you are sponsoring a spouse or child of a U.S. citizen, the asset requirement drops to three times the difference between the sponsor’s and the sponsored individual’s annual incomes.
2. Using Household Member Income: You can include the income of other household members by having them complete Form I-864A, Contract Between Sponsor and Household Member. They must be related to you by birth, marriage, or adoption, or have been claimed as a dependent on your most recent tax return.
3. Finding a Joint Sponsor: If you still do not meet the requirement, you must secure a joint sponsor. A joint sponsor is an individual who meets all the requirements on their own, including the 125% income threshold for their own household plus the sponsored immigrant’s household. You cannot combine your income with that of a joint sponsor to qualify for a loan.

The Sponsor’s Enforceable Legal Obligation in Illinois

A sponsor’s obligation does not end with divorce or separation. The support obligation may last for a long time, typically until the sponsored immigrant completes one of four terminating events:

• Becomes a U.S. citizen.
• Works for 40 qualifying quarters (about 10 years) under the Social Security Act.
• Leaves the United States permanently and is no longer a permanent resident.
• Dies.

As long as the beneficiary is gainfully employed and earning enough to meet the 125% standard, they usually are disqualified from additional funds.  However, it is not the affidavit of support, but alimony determinations that tend to be more enforceable.  Therefore, too often, but not always, there is unreasonable fear of becoming a joint sponsor due to misinformation and prejudice.

Seek Experienced and Discreet Counsel

Navigating the financial requirements and legal liabilities associated with Form I-864 requires experience and careful planning. At The Law Office of Kevin Dixler, we provide personable service, taking the time to explain your long-term responsibilities in plain English. We are committed to providing an honest and discreet assessment of your financial position to ensure your application is successful.

Contact us today to schedule a consultation at 312-728-4610.