Understanding the Affidavit of Support

The Affidavit of Support is an import part of all family-based immigration cases. In order to be admissible as an immigrant to the Unites States the prospective immigrant must establish that he or she will not become a "public charge." In plain terms this means they have to establish that they won't rely on the government for public assistance. The primary method for establishing this requirement is through the use of an Affidavit of Support. In fact, the affidavit of support is required in most all family-based immigration cases. The Affidavit of Support is a legally binding document wherein a U.S. Citizen or lawful permanent resident agrees to provide financial support for the immigrant if he or she is unable to support himself or herself.

When do you have to file an Affidavit of Support?

The Affidavit of Support must be filed at the time the prospective immigrant is applying for an immigrant visa.

Who can be a sponsor?

In order to be the sponsor in the Affidavit of Support you must meet the following requirements:

  • Must be a U.S. Citizen or Lawful Permanent Resident (LPR);
  • Must be at least 18:
  • Must live in the U.S. or U.S. territory (this means no family members that live abroad.)

What are the obligations of the sponsor?

The Affidavit of Support is a legally enforceable agreement. The document can be enforced against the sponsor by the beneficiary immigrant or by any government agency that provides means-tested support to the immigrant. The sponsor is obligated to provide support for the immigrant at an annual income level that is not less than 125% of the federal poverty guidelines. This support can be provided either in-kind (housing, food, clothes, etc.) or in cash. In most cases, the sponsor is the spouse or parent so enforceability is not often an issue. However, the sponsor needs to be fully informed about his or her obligations as the Affidavit could be enforced if the relationship ends and the immigrant requires support.

What does the sponsor have to show to establish that he can support the immigrant?

The law requires that the sponsor show that she has the financial means maintain an annual income of at least 125% of the federal poverty level. (Petitioner/sponsors who are on active duty in the U.S. Armed Forces only need to show income at 100% of the federal poverty guidelines.) The federal poverty guidelines are updated each year and published on the Department of Health and Human Services website.

In order to determine what income amount applies to the sponsor, the sponsor must determine his family size. (The poverty guidelines vary depending on family size.) The family size includes the following persons:

  • The sponsor
  • The sponsor's spouse
  • The sponsor's unmarried children under 21
  • Persons the sponsor has claimed as a dependent on her most recent tax return
  • The prospective immigrant and any family members who will accompany the immigrant
  • Any other immigrants for which the sponsor has also filed an Affidavit of Support and the obligation has not terminated.

How is the sponsor's household income determined?

The household income is determined by counting the sponsor's income. If the sponsor's income is not sufficient the sponsor may also include the income of the sponsor's spouse and the income of any other party used to determine the household size as discussed above. Any household member whose income is considered my also submit a related affidavit; however, the household members do not have to be U.S. Citizens or LPRs.

Whether or not the income of the sponsor and any household members is sufficient to meet the requirements of the Affidavit of Support is largely based on current income rather than past income. Thus, prospective sponsors who were employed but have been laid off, terminated, or otherwise suffered a decrease in income may face difficulty.

What if the sponsor can't show income in excess of the 125% level?

If the sponsor and household members cannot show income to meet the required 125% income level, the sponsor may attempt to use his assets, if any, to meet this obligation. The law allows for the sponsor to meet the obligation by showing the she has "significant" assets that can be or could be used to support the immigrant. To qualify, the assets must be able to be easily converted to cash within one year The assets can be owned by the sponsor or a household member. In the case of a spouse or child of a U.S. Citizen the value of the assets must be at least three times the deficiency between the sponsor's income and 125% of the federal poverty guidelines. In other cases, the assets must be 5 times the difference.

Alternatively, the sponsor may also find a joint sponsor to satisfy the requirements of the Affidavit of Support. Even if the principle sponsor uses a Joint Sponsor he or she must still execute and Affidavit of Support and both will be fully responsible for supporting the immigrant if necessary.

What is the duration of the sponsor's obligation?

The sponsor's liability for supporting the immigrant terminates under the following conditions:

  • The immigrant becomes a U.S. Citizen
  • The immigrant is credit with 40 quarters of earnings as defined by Social Security law
  • The immigrant dies
  • The immigrant loses or abandons LPR status and leaves the U.S.
  • The immigrant is ordered removed but readjusts status in immigration proceedings and submits a new Affidavit of Support

The Affidavit of Support is an essential part of most all family-based immigrant visa petitions and it is important that the sponsor and the immigrant clearly understand the responsibilities and obligations of the parties that come along with it.

If you have questions about your family-based immigration case of the Affidavit of Support please contact us for a fre consultation.

Phil

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