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Article | Aug 19, 2009

Sponsoring a Foreign National for Immigration: The “Affidavit of Support”

Foreign nationals applying for permanent residence (a “green card”) in the United States must affirmatively establish that they are not likely to become a “public charge” in the U.S. In other words, they must show that they have sufficient financial resources committed to them, such that they will not require government financial assistance. [This is an interesting requirement because, in fact, permanent residents are not eligible for most forms of public assistance for the first 5 years of their residence in the U.S. (though they are required to pay taxes). Of course, individuals who are not legally present in the United States are not eligible for most forms of public assistance either.] If the foreign national cannot make this showing, the application for permanent residence will be denied. At present, virtually all family-based applicants for permanent residence must show that they have a sponsor willing to make a commitment to support them to at least 125% of the federal poverty guidelines. (In the employment context, the offer of employment in the U.S. shows that the foreign national applicant has sufficient financial resources.)

Prior to passage of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, this “public charge” determination was fairly subjective and could be met in a variety of ways. It was generally sufficient if the foreign national had an offer of employment, or a sponsor willing to make a non-enforceable affirmation that s/he would provide financial support. However, this changed effective December 19, 1997. This is the date that the Form I-864 Affidavit of Support came into effect. The I-864 is required of almost all family-based applicants for permanent residence or an immigrant visa; and it requires very specific documentation. (It is also required in employment-based cases, in certain limited circumstances where a family member of the foreign national applicant has a significant ownership interest in the petitioning employer.)

Most significantly, the I-864 Affidavit of Support is a legally enforceable contractual agreement between the petitioner/sponsor, the foreign national/beneficiary, and the federal, state and local governments to whom the foreign national might apply for public assistance. In support of the I-864, the sponsor must provide tax returns and proof of current income. The sponsor must also be a U.S. citizen or permanent resident, and must be domiciled in the U.S.

The petitioning relative must provide Form I-864, even if her income is not sufficient to meet the requisite level of income (125% of the federal poverty guidelines for her household size). In these cases, a co-sponsor, who must also take on the contractual responsibility of Form I-864 and must also provide the same documentation, will be required.

The I-864 is intended to keep foreign nationals off public assistance by allowing government agencies to “deem” the sponsor’s income to the foreign national for purposes of determining eligibility for the benefit. If the sponsor has sufficient income, the foreign national will be considered over-income for most benefits. However, if the foreign national is granted benefits, the government agency providing those benefits could seek reimbursement from the sponsor. To date, this has not been happening on a large scale, because it is not generally cost-effective. It is difficult to determine, therefore, how such enforcement efforts might actually play out.

The I-864 Affidavit of Support is enforceable for a substantial time period, potentially for the lifetime of the foreign national. The I-864 terminates upon the first to occur of the following: 1) the foreign national becomes a U.S. citizen; 2) the foreign national accrues 40 quarters under the U.S. Social Security system; 3) the foreign national permanently departs the U.S.; or 4) the foreign national dies. The liability does not necessarily die with the sponsor, however; any benefits that the foreign national received prior to the sponsor’s death can be recouped from the sponsor’s estate. Termination of the family relationship (for example, by divorce) does not terminate liability under the I-864.

It has also become clear in recent years that the I-864 Affidavit of Support may be enforceable by the foreign national against the sponsor. The instructions to the I-864 clearly state: “By signing this form, you, the sponsor, agree to support the intending immigrant and any spouse and/or children immigrating with him or her…” [Form I-864, p.1 (Sponsor’s Obligation)]. Part 7 of the I-864 further states: “I agree to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty guidelines. I understand that my obligation will continue until my death or the sponsored immigrant(s) have become U.S. citizens, can be credited with 40 quarters of work, depart the United States permanently, or die.”

Based upon this language, some courts (in New York, New Jersey, Indiana, Ohio and Florida) have found the document enforceable and ordered support payments to the foreign national spouse.

Because the I-864 Affidavit of Support requirement involves a complex network of financial calculations, obligations, and documentation, it is advisable for participants in the permanent residence process to obtain legal advice before moving forward.