RAFER IMMIGRATION, LLC

I petitioned my spouse and child, and USCIS approved my I-130 petition. Now the National Visa Center (NVC) wants me to complete an Affidavit of Support. Why do I have to complete one?

The U.S. government requires most family-based and some employment-based immigrants to show they have adequate means of support before they immigrate to the U.S. Therefore, most petitioners who file I-130 petitions for their family members (spouses, children, parents, and siblings) must show they have an income and/or assets that are 125% above the federal poverty line. By completing and signing Form I-864, you are agreeing to use your resources if it is necessary to support the immigrant(s) you sponsored.

Which petitioners are exempt from filing an Affidavit of Support?

If you are a U.S. citizen, and you petitioned your child who will be immediately eligible to become a U.S. citizen when they immigrate to the U.S., you are not required to file an Affidavit of Support. Likewise, self-petitioners who filed an I-360 because they are either widow/widowers or spouses/children and were subjected to battery or extreme cruelty are exempt.

What are the documents required in filing an Affidavit of Support?

In addition to completing the Affidavit of Support, a sponsor should include a copy of his/her U.S. birth certificate, passport, or naturalization certificate or green card and a complete copy of his or her most recent federal income tax return with all the W-2 forms and schedules. Although the sponsor is no longer required to submit their three most recent income tax returns and a letter from an employer confirming employment and salary, you should submit them anyway to avoid unnecessary delays, especially if the immigrant is applying for a visa at the embassy.

Can I use my assets besides my income?

Yes. You can use assets that are readily available to combine with your annual income. Evidence of assets may include bank statements covering the last 12 months or a letter from your bank; real property; stocks, bonds, CDs and other personal property.

Can I combine my spouse or parent’s income to meet the 125% income requirement?

Yes. You can combine your income with a household member’s income as long as the household member is related to the sponsor by birth, marriage, or adoption. The household member submits Form I-864A, which is a contract between the sponsor and household member, and must include proof of citizenship/permanent residency, income tax returns, letter of employment, relationship with the sponsor (birth certificate or wedding certificate); and same residence with the sponsor (bills or government documents showing same address).

What if I am currently unemployed, retired, or just don’t make enough money and have no assets to meet the poverty guidelines?

You must still complete an Affidavit of Support and find a joint sponsor who meets all the requirements, including the full 125% income. However, joint sponsors cannot combine their assets to reach the 125%, and they will have to submit separate Affidavits of Support.

A joint sponsor does not have to be related to the sponsor or the sponsored family member. However, they must be 18, a U.S. citizen or permanent resident, and meet the 125% income. If you are combining assets with your income or combining your household member’s income/assets, you must submit Form I-864. A joint sponsor must also submit Form I-864. If your annual income alone meets the 125% requirement, you can submit Form I-864EZ.

What if I did not file my tax returns the last three years or I do not have copies of my tax returns?

If you did not file your tax return, you will have to include an explanation why and a copy of the instructions from the IRS publication that shows you were not required to file. If you failed to file and you were required to, you should file an original tax return so that the Affidavit of Support will be considered sufficient. If you do not have your tax returns but you filed, you can obtain a transcript of your returns from the IRS.

What if I do not currently live in the U.S.? I retired and moved back to the Philippines but I petitioned my children to come to the U.S.

The sponsor must be “domiciled” (principal residence) in the U.S. Therefore, U.S. citizens who are domiciled abroad are precluded from complying with the Affidavit of Support requirements. A sponsor in this situation must resume residency in the U.S. and take the necessary steps to make the U.S. his or her immediate principal place of residency.

What kind of steps should I take to re-establish U.S. residency?

Sponsors may consider finding a job in the U.S., locating a place to live, registering their children in U.S. schools, and/or making arrangements to relinquish their residence abroad. You will have to submit proof of the steps you have taken with the Affidavit of Support.

Do I have to move back to the U.S. before my family immigrates to the U.S.?

No. If the sponsor establishes U.S. domicile, it is unnecessary for the sponsor to go to the U.S. before the sponsored family members. However, the sponsored family member cannot enter the U.S. before the sponsor returns to the U.S. to live. The sponsored family member must travel with the sponsor or after the sponsor has entered the U.S. However, I recommend for the sponsor to return to the U.S. first and take the necessary steps to show he or she has re-established residency to avoid the "domicile" issue.

Affidavits of Support are an inevitable and vital part of family-based immigration. It is important that every sponsor complete an affidavit fully and accurately. If you need to complete an Affidavit of Support, you should hire an attorney to assist you; an attempt to save yourself $300 could result in months or even years of delay in processing.

Atty. Rafer has specialized in Immigration Law in Seattle for over ten years. She can be reached at (206) 957-4000 and Romina@RaferImmigration.com. Please note the foregoing material is provided for information purposes only. The material is not offered as legal advice and should not be substituted for seeing professional legal advice. Nothing in this column or communication is intended to create, and will not create, an attorney-client relationship with you.