DOS Rule on Affidavits of Support: Guidance on Reading and Evaluating I-864
R 080705Z NOV 97
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
UNCLAS STATE 211673
VISAS INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS, CMGT
Subject: P.L. 104-208 Update No. 31 -- New Affidavit of Support: Nuts and
Ref: (a) State 116024, (b) State 1703
The new contractually binding Affidavit of Support (form I-864) and related
regulations were promulgated on Monday October 20 and will enter into
effect on Friday December 19. Beginning that date, beneficiaries of all
family-based immigrant visa petitions and certain employment-based IV
petitions (see Para 7 below) must submit form I-864, Affidavit of Support
under section 213a of the Act, in order to qualify for a visa under the
public charge provision of the INA, section 212(a)(4)(c). This telegram
provides guidance on reading and evaluating the new form. General
guidance on adjudication of public charge will follow SEPTEL. Due to the
high level of public interest in the I-864 and new public charge
provisions, all posts can expect to receive inquiries. VO will be sending
further guidance regarding the form and adjudication of public charge
issues (SEPTEL) to all posts.
Contractually Binding Affidavit of Support
Section 213a of the INA as amended (P.L. 104-208 IIRAIRA), requires a
contractually binding Affidavit of Support for most immigrant visa
applicants to qualify under the public charge provision of INA, section 212
(a)(4)(c). By executing form I-864, the sponsor agrees to provide
financial support necessary to maintain the sponsored immigrant at an
income that is at least 125 percent of the federal poverty guidelines for
the indicated family size, and agrees to reimburse any agencies which
provide means-tested public benefits to the sponsored immigrant. An
agency that provides means-tested benefits to a sponsored alien may, after
first making a written request for reimbursement, sue the sponsor in
federal or state court to recover the cost of the benefit.
New AOS Form - I-864
INS, in consultation with State Department and the Department of Health and
Human Services, drafted the new Affidavit of Support form I-864 and the
related regulations. INS describes the form as a combination of a form,
worksheet and contract which may be legally enforced against the sponsor by
federal, state, or local benefit granting agencies or by the sponsored
immigrant. There are several documents which comprise the Affidavit of
I-864 -- the Affidavit of Support;
Poverty Guidelines (attachment to I-864);
I-864a -- contract between sponsor and household member (see Paras 20 -
I-865 -- sponsor's notice of change of address.
All four documents should always be handed out together as a single packet.
Applicants will submit only the I-864 and, potentially, one or more I-864a
forms during a visa interview. Sponsors will require current poverty
guideline information to complete the Affidavit of Support correctly.
Posts should maintain updated poverty guidelines and include current
poverty guideline attachments with all Affidavit of Support forms.
CA/VO/L/R routinely provides updated poverty guidelines to posts. INS has
also asked that we include the I-865 sponsor's notice of change of address
in the packet to provide ample guidance to applicants and petitioners
regarding their legal obligation to keep INS informed of their place of
The I-864 varies significantly from the I-134 Affidavit of Support
currently in use. It is much longer and far more technical than the I-
134. As a legally binding document, it necessarily contains contractual
language and legal terminology and will be difficult for many petitioners
to complete without assistance. The I-864 is to be used only with the
immigrant visa categories listed in Para 7 below. Any other visa case,
immigrant or nonimmigrant, which may require an Affidavit of Support to
meet public charge provisions should use the I-134.
The I-864 and I-864A will have a six-month validity for visa interview
purposes. The sponsor(s) and contributing household member(s) must have
signed the forms within the 6 months prior to the initial visa interview.
As long as the form is submitted within that 6 month time frame, it will
remain valid indefinitely. If more than 12 months pass between the date
the form was signed and visa issuance, the interviewing officer should not
require a new form, but should request updated supporting documentation,
i.e. the most recent tax return, current employment or bank statements,
etc. It is also important to bear in mind that the applicable poverty
guidelines might change between the date of signature and the visa
interview. Although it will not/not be necessary to obtain a new
Affidavit of Support, the poverty guidelines in effect at the time of visa
issuance will govern. The poverty guidelines are issued annually by the
Department of Health and Human Services. New poverty guidelines enter into
effect the first day of the second month after publication in the Federal
Register. VO/L/R will continue to advise posts of changes in the poverty
guidelines and their effective dates.
Who Needs an I-864
The following categories of immigrant visa applicants must present an I-864
at the time of their visa Application:
All immediate relatives, including orphans, and family-based immigrant
visa applicants (self-petitioning widow/ers and battered spouses and
children are exempt from this requirement);
Employment-based immigrant visa applicants if the petitioning employer is a
Employment-based immigrant visa applicants if a relative of the principal
alien has a significant ownership interest in the entity that filed the
petition. (Significant ownership interest has been defined as 5 percent or
All other immigrant visa applicants, including diversity visa applicants,
who require an Affidavit of Support to qualify under section 212(a)(4)
should use the I-134 Affidavit of Support form. The I-864 cannot be used
in those cases.
Who Completes the I-864?
Family-Based Petitions: The petitioner must submit a contractual Affidavit
of Support, Form I-864, in all immediate relative and family-based
preference cases, including adoptions.
Employment--Based Petitions: If a relative is the petitioning employer,
s/he must submit an I-864 Affidavit of Support. If a relative has
significant (5 percent or more) ownership in the petitioning entity, s/he
must submit the I-864.
Requirements for Sponsorship:
A sponsor who completes form I-864 must be all of the following:
The petitioning relative or the relative who has a significant ownership
interest in the petitioning entity (except in cases of joint sponsors. See
A natural person (a sponsor cannot be a corporation, organization, or other
A citizen or national of the United States or an alien who is lawfully
admitted to the United States for permanent residence;
At least 18 years of age;
5) Domiciled in the United States or any territory or possession of the
united states; (note: domicile is a complex issue. Additional guidance
will follow SEPTEL.)
6) Able to demonstrate the means to maintain an income of at least 125
percent of the applicable federal poverty guidelines for the sponsor's
household size. Household size includes the sponsor; all persons related
to the sponsor by birth, marriage, or adoption, living in the sponsor's
residence; the sponsor's dependents; any immigrants previously sponsored
using form I-864 if the obligation has not terminated; and the intending
immigrants listed in Part 3 of the Affidavit of Support. A sponsor on
active duty in the U.S. Armed Forces, other than active duty for training,
who is petitioning for a spouse or child need only demonstrate the means to
maintain an income equal to at least 100 percent of the federal poverty
guidelines for the household size.
If a petitioner meets the requirements listed in Para 11, there cannot be a
joint sponsor unless a consular officer or INS officer specifically
requests it. If the petitioner is unable to meet the requirement of 125
percent of the poverty guideline for the claimed household size, s/he must
still submit an 1-864, but one or more joint sponsors may file separate
affidavits of support. Each joint sponsor must meet the full minimum
income requirement for the household size and all other requirements listed
in Para 11 (except the joint sponsor will not be the petitioner).
Although the joint sponsor(s) will share the financial liability of the
sponsored alien, s/he cannot combine income with the petitioner or another
joint sponsor in order to meet the income requirement.
It is important to differentiate between household members and joint
sponsors. To meet the 125 percent income requirement, a petitioner may
count his/her income and assets and/and the income and assets of household
members (as defined in Paras 20 and 25) in the same Affidavit of Support.
As long as the household members are included in the same Affidavit of
Support and have signed Form I-864a (see Para 21), they are not considered
joint sponsors. Anyone outside the household, as defined by the act, must
submit a separate Affidavit of Support and will be considered separately as
a joint sponsor. Joint sponsors may similarly include the income and
assets of their own qualified household members to meet the income
Duration of Financial Obligation Under the I-864
The obligation of the sponsor to a sponsored alien continues until the
has worked or can be credited with 40 qualifying quarters of work;
ceases to hold the status of an alien lawfully admitted for permanent
residence and departs the United States; or,
Reviewing the Form
Officers should check to make sure that each section of the form has been
completed properly and compare the information provided with the petition
packet and other documents provided at the time of interview.
Part 1 -- Information on Sponsor: Sponsors must provide their social
Part 2 -- Basis for Filing Affidavit of Support: Ensure that appropriate
box has been checked.
Part 3 -- Information on Sponsored Immigrant: Only the beneficiary and
accompanying dependents should be listed in this block.
Part 4 -- Eligibility to Sponsor: If the petitioner is the sponsor, proof
of citizenship or LPR status will be included in the petition. Joint
sponsors need to submit proof of citizenship (copy of birth certificate,
passport, etc.) or legal permanent resident status (LPR's must attach
copies of both sides of their alien registration card).
The sponsor may demonstrate the means to maintain the sponsored
immigrant(s) at the required income level by providing the following
The income of the sponsor or of any relative of the sponsor who has either
been living in the sponsor's household for the previous 6 months or is
listed as a dependent on the sponsor's most recent tax return;
the assets of the sponsor or of any relative of the sponsor who has either
been living in the sponsor's household for the previous 6 months or is
listed as a dependent on the sponsor's most recent tax return;
the assets of the sponsored immigrant; or,
the income or assets of a joint sponsor.
If the income or assets of a household member are to be used to meet the
125 percent minimum income requirement, that household member must/must
sign an I-864A, which is a contract between the sponsor and the household
member. By signing the I-864a the household member agrees to make his or
her income and/or assets available to the sponsor to help support the
immigrant(s) for whom the sponsor has filed an Affidavit of Support.
Evidence of income and assets must be provided. The I-864 does not request
sponsors to submit evidence of assets if income alone is sufficient to meet
the 125 percent requirement. However, officers are free to request
evidence of assets and liabilities if that information is necessary to
reach a determination regarding 212(a)(4).
Part 4a -- Sponsor's Employment: The sponsor must provide evidence of
current or self-employment such as a letter from the employer on
appropriate letterhead listing dates of employment, work performed and
salary or wages paid; current payroll receipts; or other such credible
evidence. If unemployed, the sponsor will need to demonstrate evidence of
ongoing income through other means, such as retirement benefits, other
household member's income, and/or significant assets. If income of other
household members is submitted, the same types of evidence of employment
and income must be provided.
Part 4b -- Use of Benefits: If the sponsor answers yes to his/her or any
household member's receipt of public means-tested benefits within the past
three years, a thorough evaluation of the sponsor's ability to provide the
requisite level of support to the sponsored alien(s) will be necessary.
There is no provision in the law under which the receipt of means-tested
benefits by a sponsor or a sponsor's household member in and of itself
would result in a finding of 212(a)(4). However, the reliance on such
benefits by a sponsor or by a member of the sponsor's household would
clearly be an important factor for consideration in making a public charge
determination. The adjudicating officer will need to review the
attachment provided by the sponsor listing the public assistance programs
and dates received as well as all evidence of the sponsor's current
Part 4c, Sponsor's Household Size: household, for purposes of Form I-864
includes the total of the following individuals:
number of persons related by birth, marriage or adoption living in the
sponsor's household, including the sponsor;
number of persons being sponsored in the Form I-864, i.e., the principal
intending immigrant and any accompanying spouse and children;
number of persons not living in the sponsor's household for whom the
sponsor has previously submitted form I-864, if the obligation has not
number of persons otherwise dependent on the sponsor notwithstanding where
they reside, including any dependents listed on the sponsor's income tax
Part 4d — Sponsor's Annual Household Income: The sponsor must submit
copies of the three most recent federal income tax returns for the sponsor
and anyone else in the household whose income is being considered with the
I-864. The income of anyone listed in Part 4c may be counted as long as the
individual has signed an I-864a and has been physically residing in the
sponsor's house for the previous 6 months or is listed as a dependent on
the sponsor's most recent federal income tax return.
Federal Income Tax Returns
Federal tax returns must include all supplements and attachments sent to
the IRS. For purposes of demonstrating means to maintain income, total
unadjusted income, before deductions, on an income tax return will be the
determining income amount. If necessary to meet the income requirement for
the household size, income from other sources (dividends, rents, etc.)
listed on the tax return may be used.
If the sponsor is unable to provide three years of federal income tax
returns, s/he must provide a valid explanation. Failure to file does not
excuse the sponsor from the requirement. If tax returns should have been
filed, the Affidavit will not be considered sufficient until the sponsor
has done so and supplied the appropriate copies for consideration with the
I-864. If the declared income does not meet the 125 percent income
requirement but the sponsor claims to have underreported his/her income, an
amended return will be necessary for the Affidavit to be considered
sufficient. (note: Consular Officers do not have the authority to
request/require an individual to pay taxes or correctly report income to
the IRS. Conoffs may advise applicants or sponsors that an original or
amended tax return will be required in order to process an immigrant visa
petition to conclusion, however.)
Self-Certified Documents: The sponsor certifies to the authenticity of his
or her tax returns in Part 7 of the I-864. If the income tax returns are
submitted as evidence of income from another household member, the
household member makes that certification on the I-864a.
Part 4e — Determination of Eligibility Based on Income: Line 1
establishes whether the sponsor is subject to the 125 percent income
requirement or the 100 percent requirement for members of the armed forces.
Line 2 should be the same as Part 4c line 5. Line 3 establishes the Income
level needed to meet the income requirement and should be checked against
the most recent federal poverty guideline for accuracy.
Part 4f — Sponsor's Assets and Liabilities: If the sponsor's income does
not meet the poverty guideline requirement for the household size based on
income from wages or other sources, he or she may show evidence of assets
owned by the sponsor, the sponsored immigrant(s) or members of the
sponsor's household that are available for the support of the sponsored
immigrant(s) and can readily be converted into cash within 1 year.
Evidence of assets should be attached to the 1-864 establishing location,
ownership and value of each asset listed, including all liens and
liabilities for each asset listed. The value of all assets listed must
equal at least five times the difference between the minimum income
requirement and the sponsor's total household income.
Evidence of assets includes, but is not limited to:
Bank statements covering the last 12 months, or a statement from an officer
of the bank or other financial institution in which the sponsor has
deposits, including deposit/withdrawal history for the last 12 months, and
Evidence of ownership and value of stocks, bonds and certificates of
deposit, and dates acquired;
Evidence of ownership and value of other personal property and dates
Evidence of ownership and value of any real estate and dates acquired.
Part 5 — Immigrant's Assets and Offsetting Liabilities: If an immigrant's
assets are to be considered in meeting the minimum income requirement, they
must be available in the United States for the support of the sponsored
immigrant(s) and must be readily convertible to cash within one year. The
immigrant is not required to complete an I-864A for assets. Evidence
establishing location, ownership and value of each asset listed, including
all liens and liabilities for each asset listed must be attached to the I-
864. The types of evidence which can be submitted are the same as for the
sponsor's assets listed in part 4f.
Part 6 — Joint Sponsors: A joint sponsor may only be used when the
petitioner (or relative with a 5 percent ownership interest in the
petitioning entity) cannot meet the income requirement or if a consular or
INS office requests it. The use of a joint sponsor does not relieve the
petitioner of his/her full financial responsibility for the sponsored
immigrant(s). There may be more than one joint sponsor, but each sponsor
must individually meet the full 125 percent income requirement and must
fully qualify as a sponsor. The assets of the sponsored immigrant(s) may
be used to meet the income requirement, but they may be used only by one
sponsor. All other sponsors must meet the income requirement without
including the sponsored immigrant's assets.
35. Part 7 — Use of the Affidavit of Support to Overcome Public Charge
Grounds: This portion of the form constitutes the bulk of the contractual
provisions, and outlines the purpose of the 1-864, which is to overcome
public charge grounds of ineligibility. It includes the notice of change
of address requirements, means-tested benefit prohibitions and exceptions,
consideration of the sponsor's income in determining eligibility for
benefits and the civil action to enforce the affidavit. It also provides a
certification under penalty of perjury that the sponsor is aware of the
legal ramifications of being a sponsor under section 213a of the act.
For the Affidavit to be considered, the sponsor must have signed the
section Part 7 entitled “Concluding Provisions” before a notary public,
an INS officer or a Consular Officer. The Concluding Provisions include the
sponsor's sworn statement that the tax returns are true and correct copies
of the returns filed with the Internal Revenue Service and that all other
evidence (of income or assets) is true and correct. Only the sponsor may
sign the I-864 and his/her signature must be an original. Photocopies may
be submitted for accompanying dependents, but each must bear an original,
Part 8 — Preparer Information: This is standard language if someone other
than the sponsor prepared the form. Given its complexity, it is likely
that most sponsors will seek assistance in completing this form.
Poverty Guidelines: The I-864 package includes a list of the poverty
guidelines. Whenever new guidelines are released, officers should check to
ensure that the petitioner/sponsor has used the most recent guidelines in
computing the minimum income requirement.
Means-Tested Public Benefits: The 1-864 includes a definition of federal
and state means-tested benefits. Federal means-tested benefits are only
those which have been identified by the administering agencies. To date,
those agencies have named: Food Stamps, Medicaid, Supplemental Security
Income (SSI), and Temporary Assistance for Needy Families (TANF). (Note:
TANF has replaced Aid for Families with Dependent Children (AFDC).) There
may be others designated in the future. State means-tested public
benefits will be determined by each state.
Under the provision of the Welfare Reform Act, the following federal and
state programs are not/not included as means-tested benefits: emergency
medicaid; short-term, non-cash emergency relief; services provided under
the National School Lunch and Child Nutrition Acts; Immunizations and
Testing and Treatment for Diseases; Student Assistance under the Higher
Education Act and the Public Health Service Act; certain forms of foster-
care or adoption assistance under the Social Security Act; Head Start
Programs; means-tested programs under the Elementary and Secondary
Education Act; and Job Training Partnership Act programs.
SEPTEL will follow with guidance on the adjudication of public charge under
the new provisions.
After review of the document, the interviewing officer should determine
whether the Affidavit meets the requirements of section 213a and check the
appropriate box ("meets" or "does not meet" requirements of 213a) on the
first page of the I-864. The officer should then sign and date the form in
the same block. Every issued visa in the target categories must/must be
accompanied by at least one sufficient Affidavit of Support.
Due to the length and complexity of the I-864 and greater number of
accompanying documents, VO anticipates that officers will spend some
additional time adjudicating 212(a)(4) than is currently the case. Posts
are encouraged to advise CA/VO/F/P as to the effect the new form has on
officer time per case. Guidance on public charge issues will follow SEPTEL.
Please address any questions or comments regarding the 1-864 to CA/VO/F/P.