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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
AMEMBASSY BUJUMBURA 
AMEMBASSY SARAJEVO 
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 
Bolts

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 
Support packet:


I-864 -- the Affidavit of Support;

Poverty Guidelines (attachment to I-864);

I-864a -- contract between sponsor and household member (see Paras 20 - 
23); and, 

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 
residence.

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.

Validity

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 
relative;

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 
greater).

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 
Para 12);

A natural person (a sponsor cannot be a corporation, organization, or other 
entity);

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.

Joint Sponsors

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 
requirement.

Duration of Financial Obligation Under the I-864

The obligation of the sponsor to a sponsored alien continues until the 
sponsored immigrant:

naturalizes;

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,

dies.

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 
security number.

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 
evidence:

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 
financial circumstances.

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 
terminated; and,

number of persons otherwise dependent on the sponsor notwithstanding where 
they reside,  including any dependents listed on the sponsor's income tax 
returns.

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 
current balance;

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 
acquired;

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, 
notarized signature.

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.

Definitions:

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.  

Officer Certification

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.

Minimize considered.

Madeleine Albright


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