Affidavit of Support
There has been much confusion regarding the affidavit of support and in what instances it is required of the applicant. There are two different affidavits of support: (1) Form I-864, which is a required affidavit of support for certain applicants; and (2) Form I-134, which is an optional affidavit of support.
Form I-864 – Required in Certain Cases
Form I-864 is required by applicants in the following visa categories under Section 213A of the Immigration and Nationality Act (INA):
(1) Immediate relatives, including spouse of a U.S. citizen, parent of a U.S. citizen, child of a U.S. citizen, and K (fiancé ) nonimmigrants adjusting to lawful permanent resident (LPR) status;
(2) Family-based preference applicants, including unmarried sons and daughters of U.S. citizens (F1); spouses, children, and unmarried sons and daughters of LPRs (F2A/F2B); married sons and daughters of U.S. citizens (F3); and brothers and sisters of U.S. citizens (F4);
(3) Certain employment-based preference applicants, including beneficiaries of a petition filed by a U.S. citizen or LPR relative who is the sole proprietor of the business filing the petition; beneficiaries of an entity in which a U.S. citizen or LPR relative of the foreign national has a 5% or greater ownership interest; and an accompanying or following-to-join family member of such immigrants, but only if the principal applicant, at the time of his or her entry, was required to submit Form I-134.
For Form I-864, the sponsor must meet the following requirements:
(1) A U.S. citizen or national or a lawful permanent resident;
(2) At least 18 years of age; and
(3) Domiciled in the U.S. or its territories and possessions.
A properly filed, non-fraudulent Form I-864 is a legally binding affidavit and should normally be considered sufficient to overcome the public charge requirements. In determining whether the INA 213A requirements creating a legally binding affidavit have been met, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor. The affidavit is enforceable regardless of a sponsor’s actual intent and should not be considered by the adjudicator, unless there are significant public charge concerns relating to the specific case, such as if the applicant is of advanced age or has a serious medical condition.
If the sponsor is unable to meet the income requirements, a joint sponsor who can meet the requirements may submit a Form I-864 to sponsor some or all of the family members of the intending immigrant, in addition to the original sponsor’s Form I-864. The joint sponsor must meet the same requirements as the petitioning sponsor except that the joint sponsor does not have to be related to the petitioning sponsor or the intending immigrant. In addition, each joint sponsor must individually meet the income requirements for his or her household size according to the federal poverty guidelines, without combining resources with the petitioning sponsor or a second joint sponsor.
Form I-134 – Cases Where Form I-864 is Not Required
If an applicant is exempt from submitting a Form I-864, he or she must still meet the public charge requirement by presenting evidence that he or she will not need to rely on government assistance in the U.S. Even though an affidavit of support is not required in certain cases, there are still circumstances when it will be beneficial and when the adjudicator may actually request it, despite the fact that it is not required. In these cases, the applicant would need to submit Form I-134. This affidavit is not legally binding on the sponsor and is not generally accorded the same weight as Form I-864. Form I-134 should be given consideration as one form of evidence, however, in conjunction with the other forms of evidence enumerated in Part 1 of this article.
If any of the following applicants need an affidavit of support to meet the public charge requirement, they must use Form I-134, as they are not authorized to use Form I-864:
(1) The self-petitioning spouse of a deceased U.S. citizen, and any children of the self-petitioner;
(2) The self-petitioning spouse of a U.S. citizen who has been battered by or subjected to extreme cruelty perpetrated by the spouse, and any children of the self-petitioner;
(3) Returning resident aliens;
(4) Diversity visa applicants; and
(5) Fiancé(e)s. Note that Form I-134 is not a requirement for the K visa, even though it is often used by many Consulates.
The mere submission of Form I-134, however, is not sufficient to establish that the beneficiary is not likely to become a public charge. Unlike with Form I-864, the adjudicator makes a thorough evaluation of other factors, such as the sponsor’s motives in submitting the affidavit; the sponsor’s relationship to the applicant (i.e., relative by blood or marriage, former employer or employee, schoolmates, or business associates); the length of time the sponsor and applicant have known each other; the sponsor’s financial resources; and whether the sponsor has any other responsibilities or obligations.
For example, where there are compelling or forceful ties between the applicant and the sponsor, such as a close family relationship or friendship of long standing, the adjudicator generally will favorable consider the affidavit. On the other hand, an affidavit submitted by a casual friend or distant relative who has little or no personal knowledge of the applicant has more limited value. In addition, there is no provision for a joint sponsor with the Form I-134, as with the Form I-864.
The public charge requirement, while seemingly straightforward, has been the cause of much confusion and anxiety for foreign nationals who are otherwise admissible to the United States. The reason for denial of a visa application as a result of not meeting the public charge requirement could be as simple as not providing the adjudicator with the correct documentation.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
