Death, Taxes and the Form I-864, Affidavit of Support

A recent decision out of the U.S. District Court for Northern California highlights the serious financial obligations that attach when one financially sponsors another in the immigration process.

To avoid confusion, it should be noted up front that this discussion focuses only on the Form I-864, Affidavit of Support. This is different than the Form I-134, Affidavit of Support which is often used in connection with nonimmigrant petitions.

Of the two, only the I-864 creates a legally binding contract between the sponsor and the U.S. Government. This allows the immigrant-beneficiary to sue the sponsor for support. Although only once the sponsored immigrant obtains his or her green card is the sponsor subject to the duties set forth in the Form I-864.

As the U.S. District Court for Northern California observed the I-864 specifically warns that “divorce does not terminate” obligations under the Form I-864. But for the women’s adult son, who consistently provided for her needs, it is likely her ex-husband would have been responsible for her financial support. See, Erler v. Erler, U.S. Dist. Ct. for N. CA., available at AILA InfoNet Doc. No. 14032544 (Posted 3/25/14). That is he would have been responsible for keeping her income at 125% of the federal poverty level. As this case illustrates the sponsor’s duties in the Form I-864 can trump a previously executed pre-nuptial agreement and survive even final judgment of divorce absolving both parties of any financial responsibility towards one another.

The need for the Form I-864 arises out of section 212(a)(4) of the Immigration and Nationality Act (“INA”) which makes any individual who “in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” INA § 212(a)(4). To overcome the “public charge” inadmissibility ground an I-864 is required when seeking adjustment or an immigrant visa as the:

• Immediate relative of U.S. citizens (including orphans); and in

• All family based preference categories:

  •  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.

An I-864 is also necessary in certain employment based immigration cases. The failure to file a qualifying Affidavit of Support showing sufficient income levels, when required, makes one inadmissible and thereby prevents an otherwise eligible individual from becoming a lawful permanent resident (LPR).

In signing the Form I-864, Affidavit of Support, the sponsor, typically spouse or other relative, of the individual promises to maintain the sponsored immigrant at no less than 125% of the Federal Poverty Guidelines for the immigrants household size. The sponsor must be a U.S. citizen, or lawful permanent resident, over 18 years old, reside in the U.S. and be able to support both his or her own family, and the noncitizen immigrant, and his or her family members, to at least 125% of the federal poverty guidelines. The sponsor should expect to provide his or her federal tax returns for the preceding three years as proof they satisfy the income requirement.

In the event the petitioning relative/sponsor does not earn enough to support the immigrant, and his or her family members, at 125% of the federal poverty, the petitioner can use a joint sponsor who will share liability. A joint sponsor is subject to the same age, residency and status requirements as a single sponsor, except that he or she is not required to have filed for the immigrants visa application.

As the instructions that accompany the Form I-864 explain the sponsor’s burden ends only once the sponsored immigrant:

  1. Becomes a United States citizen;
  2. Works 40 quarters (as defined in the Social Security Act);
  3. Is no longer a lawful permanent resident (LPR) and has permanently departed the United States;
  4. Receives a new grant of adjustment of status, which included a new affidavit of support; or
  5. Dies.

8 C.F.R. § 213a.2(e)(2).

Of course, it must be remembered that sponsoring a family member in the immigration process is not only a requirement, but it is almost always a rewarding experience. Nonetheless, it does carry substantial risks for the sponsor that should not be overlooked.

Additional instructions on financially sponsoring someone who wants to immigrate are available from USCIS online here.

Leave a Reply