[Michu]

........

(3) No Local Policy Permitted Regarding When Form I-864 Shall be Filed. In the past, USCIS permitted each local office to establish its own policy on whether to require submission of Form I-864 at the time of filing for adjustment or at the time of the adjustment interview. Local offices may no longer do so. Under a policy change that took effect November 23, 2005, USCIS requires all applicants to submit Form I-864 with their adjustment application. If the case was filed prior to November 23, 2005 at an office that required submission at the time of the adjustment interview, USCIS should allow the applicant to submit Form I-864 and the required supporting documentation at the interview.


(f) Sponsor Use of Benefits. Question 4B of the September 26, 2000 version of the Form I-864 asks if the sponsor or any member of his or her household has used means-tested benefits during the past 3 years. Do not disqualify a sponsor based on a positive response to this question. The reason for this question is to ensure that the value of any such means-tested public benefits is not considered as income on the Affidavit of Support. Federal means-tested benefits currently include SSI (Supplemental Security income), TANF (Temporary Assistance for Needy Families), food stamps, Medicaid, and State Child Health Insurance Programs (SCHIP). State and local means-tested benefits vary by jurisdiction. Earned benefits such as Social Security retirement, Unemployment Compensation, and Workman’s Compensation may be included as income.

(g) U.S. Citizen Children. Any U.S. citizen children of the intending immigrant should not be listed in part 3 of the Form I-864. The Affidavit of Support places no obligation on a sponsor or joint sponsor to support any U.S. citizen children of the sponsored immigrant. Such U.S. citizen children should only be included in household size if they are actually resident in the sponsor’s or joint sponsor’s household or listed as dependents on the sponsor’s most recent tax return.

(h) Withdrawal of an affidavit of support or Form I-864A. A person who has signed a Form I-864, I-864EZ or I-864A may withdraw the Form. If the person does so, USCIS will adjudicate the application for adjustment of status as if the withdrawn Form I-864, I-864A or I-864EZ had never been filed. In an adjustment of status case, a withdrawal of the Form I-864, I-864EZ or I-864A is not effective unless it is in writing and USCIS actually receives the withdrawal before the final decision on the adjustment application. In an immigrant visa case, once a consular officer has issued an immigrant visa, no Form I-864, I-864EZ or I-864A may be withdrawn unless the visa petitioner also withdraws the visa petition.

(i) Documentation.
(1) Federal Tax Returns. Each sponsor must submit either a transcript or a copy of his or her most recent US. Federal individual income tax return (Form 1040, 1040A or 1040EZ), including all Schedules filed with the IRS. If the sponsor submits a copy of the tax return, he or she must also include copies of any and all IRS Forms W-2 and 1099 that reflect income used to qualify. The second note under paragraph 20.5(e)(2) provides guidance regarding what to do if a W-2 or 1099 is missing. Note, however, that it is not necessary to submit the Forms W-2 or 1099 if a transcript, rather than a copy, of the tax return is submitted. State or foreign income tax returns are not acceptable; if submitted, they must be returned to the intending immigrant.


The sponsor must submit with the Form I-864 the sponsor’s U.S. Federal income tax return for the most recent tax year (that is, the completed tax year immediately preceding the date the sponsor signs the Form I-864). USCIS may generally expect a sponsor, after April 15 of any given year (or April 16 or 17, in a year in which April 15 is on a Saturday or Sunday), to have completed his or her tax return for the previous year. If the sponsor requested an extension, the sponsor should provide proof of filing for the extension. If the sponsor did not file a tax return, the sponsor must prove that he or she was not required to file. If a sponsor should have filed, the sponsor must file retroactively and provide proof of filing. Note that U.S. citizens generally have an obligation to file a tax return on non-U.S. earnings even if there was no tax liability.

EXAMPLE 1: Sponsor signs the Form I-864 on March 1, 2006. The US Federal income tax return for 2005 is not due until April 17, 2006. Therefore, the sponsor must submit his or her 2004 U.S. Federal income tax return.

EXAMPLE 2: Sponsor signs the Form I-864 on May 5, 2006. The sponsor must submit his or her 2005 U.S. Federal income tax return.

EXAMPLE 3: Sponsor signs the Form I-864 on May 5, 2006. However, the sponsor also filed with IRS a Form 4868, obtaining an extension of the 2005 income tax filing deadline. The sponsor must submit his or her 2004 U.S. Federal income tax return.

Note: Typical proof that a sponsor was not required to file a tax return for a particular year would consist of a written statement from the sponsor, signed under penalty of perjury, attesting to the amount of his or her income for the relevant year and to the fact that a tax return was not required by law. USCIS adjudicators handling Form I-864 issues should be aware of the income threshold for the requirement of filing a tax return for the last several years, so that an RFE for evidence of the law is not necessary. In particular, the Instruction booklets for each year’s Forms 1040, 1040A, and 1040EZ specify the income threshold below which a person is not required to file a return.

Note: IRS permits and encourages electronic filing of Forms 1040, 1040A and 1040EZ. An electronically filed tax return may also be signed electronically. When a person signs and files the tax return electronically, a “hard copy” of the original tax return will not exist. In this situation, it is acceptable for the person to submit a plain copy printout, showing the tax return as it would have looked, had it been filed on paper, together with the IRS-issued “declaration control number.” By signing the Form I-864 or I-864A “under penalty of perjury,” the person certifies that the copy is a copy of what was submitted to IRS. As with paper-filed returns, it is also acceptable for the person to submit an IRS transcript of the electronically filed return.


A sponsor may submit an IRS-issued transcript instead of a photocopy of the sponsor’s tax return. A sponsor may obtain a transcript by filing IRS Form 4506-T with the IRS. Currently, the IRS does not charge a fee for transcripts. Tax transcripts provide proof that the returns were filed with IRS, are easier to read, take up less room in the file, and are easily obtained. If a sponsor submits a transcript rather than a photocopy of the tax return, it is not necessary for the sponsor to include copies of any Forms W-2 or 1099.

(2) Job Letters and Proof of Income. Pay stub(s) showing income for the most recent 6 months and letters from all current employers are no longer required as initial evidence. The applicant, however, may submit either or both of these items (1) in response to a request for additional evidence (RFE), or (2) with a Form I-864 if the applicant believes doing so would help establish that the sponsor meets the governing income/assets threshold. If submitted, letters from current employers should show dates of employment, the nature of the job, wages or salary earned, number of hours/weeks worked, and prospects for future employment and advancement. It should be sufficient for the employer to say that the employment is of indefinite duration or words of similar effect. Promises of future employment are not required.

(3) Household Members. The sponsor may use the income of any member of his or her own household who is at least 18 years old to help meet the household income requirement. The sponsor and household member must complete Form I-864A, which must include a copy or transcript of the household member’s most recent tax return and sufficient documentation of all income and assets he or she lists on the Form I-864A. USCIS shall use the same standards for documentary evidence of income and assets listed on a Form I-864A as are used for documentary evidence of income and assets listed on Form I-864.

(j) Use of Poverty Guidelines. HHS publishes new Poverty Guidelines in the Federal Register each year. These guidelines become effective for USCIS purposes on the first day of the second full month following their release. For example, in 2006, new Poverty Guidelines were published in the Federal Register on January 22 and therefore became effective for USCIS purposes on March 1, 2006. To assist sponsors and intending immigrants, USCIS publishes the governing guideline for the location and size of each household on Form I-864P, Poverty Guidelines. The Poverty Guidelines for each year remain in effect during the next year until the effective date of the new guidelines.

Note: The correct Form I-864P should already be included in the record, since 8 CFR 213a.2(a)(1)(ii) requires the Form I-485 or immigrant applicant to include the current Form I-864P when the applicant submits the application. If the Form I-864P is missing, that fact alone would not warrant a request for evidence, since the USCIS office should maintain past versions of the Form I-864P. When copying a Form I-864P for addition tothe record, please be sure to copy the Form I-864P that was in effect when the Form I-485 was filed, rather than any later version.

Note: If, as specified in paragraph 20.5(e)(2) of this chapter, it is necessary to request additional evidence, the sufficiency of the Form I-864 is determined according to the Poverty Guidelines in effect when the request for evidence is made. Therefore, a copy of the current Form I-864P should be included in the record of proceeding and sent with the request for evidence.

(k) USCIS Review. The following items must be considered by USCIS when reviewing a Form I-864 or Form I-864EZ:

(1) Part 1: Verify That Sponsor Has Checked the Correct Box(es). If Form
I-864EZ is being used, then “Yes” must be checked on boxes a, b, and c. If Form I-864 is being used and box “d” has been checked indicating a single joint sponsor, USCIS should ensure that there are two Form I-864s: one from the petitioner and one from the joint sponsor. If Form I-864 is being used and box “e” has been checked indicating two joint sponsors, USCIS should ensure that there are three Form I-864s: one from the petitioner, one from the first joint sponsor, and one from the second joint sponsor.

(2) Parts 2-4 of Form I-864 or Parts 2-3 of Form I-864EZ: Verify These Have Been Completed Correctly. Compare the information provided with information from other documents included in the application and/or verifying data with the sponsored immigrant at the time of the interview.
If the sponsor is using Form I-864, only “accompanying” family members should be listed in the chart in Part 3. Be sure that the first and last name of each accompanying family member is listed. Family members “following to join” (i.e., intending to immigrate more than 6 months after principal intending immigrant) should not be listed in Part 3.

(3) Part 5 of Form I-864 or Part 4 of Form I-864EZ: Sponsor’s Household Size.
The sponsor’s total household size is used to determine the correct Federal Poverty Guideline. For purposes of Form I-864, a household size includes the total of the following groups of individuals:
• Sponsor;
• Person(s) the sponsor is sponsoring on the Affidavit of Support (will always be one if the sponsor is using Form I-864EZ instead of Form I-864);
• Sponsor’s spouse, if the sponsor is married;
• All of the sponsor’s children, as defined in section 101(b)(1) of the Act, except those that have (1) reached the age of majority (i.e., are at least 18 years old) or are emancipated under the law of the person’s domicile, and (2) are not claimed as dependents on the sponsor’s most recent Federal income tax return;
• Other persons lawfully claimed as dependents on the sponsor’s tax return for the most recent tax year; and
• The number of siblings, parents, and/or adult children who (1) have the same principal residence as the sponsor, and (2) have combined their income with the sponsor’s income by submitting Form I-864A.

Note: When calculating household size, do not count any person more than once.

......

Gruss
Michael

[Michu]

........

(4) Part 6 of Form I-864 or Part 5 of Form I-864EZ: Sponsor’s Income and Employment

(A) General Rule and Active Duty Military Exception. Either the petitioning sponsor, substitute sponsor, or a joint sponsor must generally demonstrate the ability to maintain his or her annual household income at 125% of the governing Federal Poverty Guideline threshold.
A petitioner on active duty in the U.S. Armed Forces, other than for training, only needs to demonstrate the means to maintain an annual income equal to at least 100% of the Federal Poverty Guidelines if he or she is petitioning for a spouse or child.
Note that a substitute sponsor or joint sponsor is not eligible to claim the 100% income level based on the petitioner’s relationship to the intending immigrant, or the petitioner’s military status. A substitute sponsor or joint sponsor may claim the 100% income level only if the substitute sponsor or joint sponsor, himself or herself, is on active duty in the U.S. Armed Forces (other than for training) and the intending immigrant is the spouse or child of the substitute sponsor or joint sponsor.
To qualify for this exception, the petitioner must have provided evidence that he or she is on active duty, such as a military dependent’s identification card for the sponsored intending immigrant (the spouse or child), or a photocopy of the military identification card of the sponsor (the spouse or parent).
Regardless of whether a sponsor qualifies for the military exception, all of his or her income counts toward the 125% (or 100%) income requirement, including (in the case of Armed Forces personnel) any allotments received for the dependents.

(B) Poverty Guidelines. Form I-864P, Poverty Guidelines, provides the Federal Poverty Guidelines calculated at both the 100% level and 125% level for the 48 contiguous states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam. Separate guidelines are published for Alaska and Hawaii.

The Form I-864P guidelines are based on household sizes of 2 to 8. A dollar amount is provided to add for each additional household member or dependent. To determine the requirement for a household size of 10, USCIS should take the poverty line for a household size of 8 and add the additional dollar amount multiplied by 2.

Form I-864P is based upon the Federal Poverty Guidelines that the Department of Health and Human Services (HHS) publishes annually in the Federal Register (usually in February or March). (See “Federal Register Publications” under the “Immigration Law and Regulations” button on I-LINK). In concert with the Federal Poverty Guidelines, USCIS annually updates Form I-864P, Poverty Guidelines. USCIS begins to apply the updated Form I-864P guidelines to adjustment of status applications received on the first day of the second month after the HHS guidelines are published.

(C) Determining the Sponsor’s Ability to Provide Sufficient Support. If the sponsor is using Form I-864EZ, he or she must only use his or her salary or pension as shown on his or her most recent Federal income tax return. If the sponsor provides a photocopy of the return, the sponsor must include a copy of any Form(s) W-2 provided by the sponsor’s employer(s) to prove income from employment and/or Form(s) 1099 to show pension income; if a W-2 or 1099 is missing, follow the guidance in the second note under paragraph 20.5(e)(2). As with other sponsors, these copies are not needed if the sponsor provides an IRS transcript of the return. (See Part 1(a) of Form I-864EZ.) If sponsor relies on other types of income, the sponsor must use Form I-864. The sponsor must also use Form I-864, rather than Form I-864EZ, if the sponsor will be submitting any Forms I-864A.

Regardless of the form the sponsor uses, he or she must provide evidence of any income (and/or assets in the case of Form I-864) used to demonstrate the means to maintain the sponsored immigrant.
Sponsors who use Form I-864 may qualify based only upon their own income and/or assets if either or both are sufficient to reach the income requirement. If, however, the sponsor’s combined income and assets are not sufficient to meet the governing threshold, the sponsor may include the income and/or assets of another household member if the household member:

• Is at least 18 years old;
• Is included in the calculation of household size;
• Has the same principal residence as the sponsor (or is the sponsor’s
spouse); and
• Has completed and signed a Form I-864A.

USCIS should ensure that each Form I-864A is completed and signed by the sponsor and the household member.
As noted above, the intending immigrant does not need to sign a Form I-864A if he or she is immigrating alone (that is, has no accompanying dependents). In this situation, the intending immigrant should be listed on line 24(e) and should be the only person listed in 24(b), with his or her income listed on that line and value of assets listed on the appropriate line(s) in item 28.

(D) Federal Tax Return(s). No matter whether a sponsor submits Form I-864 or I-864EZ, the sponsor must provide a copy or an IRS-generated transcript of the sponsor’s Federal income tax return for the sponsor’s most recent tax year. Each Federal tax return must include all the supplements and attachments that were sent to the IRS with the tax return. For purposes of demonstrating means to maintain income, the determining income amount is the income, before deductions, on the sponsor’s income tax return. In other words, income means an individual's total income (adjusted gross income for those who file IRS Form 1040EZ) for purposes of the individual's U.S. Federal income tax liability, including a joint income tax return (e.g., line 22 on the 2005 IRS Form 1040, line 15 on the 2005 IRS Form 1040-A, or line 4 on the 2005 IRS Form 1040EZ or the corresponding line on any future revision of these IRS Forms).

Note that, by signing the Form I-864 or Form I-864EZ under penalty of perjury, a sponsor certifies that the transcript or photocopy is true and correct. This certification meets the statutory requirement of presenting a “certified” copy of the transcript of photocopy. Certification of the returns by the IRS is not necessary; the sponsor’s certification under penalty of perjury is sufficient.

If a sponsor filed a joint tax return with a spouse, but is qualifying using only his/her own individual income, the sponsor must submit evidence of that individual income. This evidence would include, for example, the sponsor’s own W-2(s), Wage and Tax Statement, and if necessary to reach the income requirement, evidence of other income reported to IRS which can be attributed to him/her, usually on Forms 1099.


(E) Other Evidence of Income. For purposes of demonstrating means to maintain income, the total income, before deductions, in the sponsor’s tax return for the most recent taxable year will be generally determinative. There is no requirement to determine whether the sponsor would have met 125% (or 100%) of the governing Poverty Guideline before the most recent tax year. Income tax information from these years should only be used to take the earning trend into consideration when assessing current and future earning capability.

USCIS, however, may consider other evidence of income (e.g., pay stub(s), employer letter(s), or both), if (1) the sponsor establishes that he/she was not legally obligated to file a Federal income tax return for the most recent tax year, or (2) USCIS determines that the income listed on the Federal tax return for the sponsor’s most recent tax year does not meet the governing threshold.

In other words, if the sponsor’s current income is sufficient, it can establish that the Form I-864 itself is sufficient even if the tax return without any other documentation might warrant a finding that it is not sufficient. For example, if the sponsor recently started a new job (that USCIS is satisfied will likely continue) and the income from the job now meets or exceeds the legal requirement, USCIS may find the Affidavit of Support to be sufficient, notwithstanding information included in the transcript or copy of the tax return(s).

By contrast, 8 CFR 213a.2(c)(2)(ii)(C) permits USCIS to conclude that a Form I-864 is not sufficient, even if the sponsor’s household income meets the Poverty Guideline threshold. USCIS should make this conclusion only if the evidence of record makes it “reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligation.” For example, if the sponsor’s income is from a job that is merely temporary or seasonal, USCIS might reasonably conclude that the income is likely not to continue, and could also conclude that the Affidavit of Support, for that reason, is not sufficient.

If the household income meets the Poverty Guidelines threshold, however, USCIS will generally conclude that the Form I-864 is sufficient. There must be some specific reason, supported by evidence in the record, to conclude that the Form I-864 is not sufficient.

(F) Means-Tested Public Benefits Received by the Sponsor. USCIS has decided that, as a matter of policy, it will require the sponsor to disclose his or her receipt of means-tested public benefits and not consider the fact that a sponsor has received such means-tested public benefits in the past to be an adverse factor in evaluating a Form I-864 or Form I-864EZ. However, the sponsor may not include any means-tested benefits currently being received in calculating the household income.

(G) Compare Total Household Income with Governing Poverty Guideline. If the sponsor’s total household income (line 24c of Form I-864 or line 18 of Form I-864EZ) is greater than or equal to the governing Poverty Guideline threshold, the sponsor does not need to show evidence of assets and does not require a joint sponsor. In this case, USCIS may move to Part 8 of Form I-864 or Part 6 of Form I-864EZ.

If a Form I-864EZ does not demonstrate means to maintain the required income, USCIS may choose to request that the adjustment of status applicant submit a new Form I-864 from the sponsor (if the applicant seeks to qualify based on showing “significant assets”), or to submit a sufficient Form I-864 from a joint sponsor. Note that this request for evidence would go to the applicant, not the sponsor.

......

Gruss
Michael

[Michu]

........

If a Form I-864 does not demonstrate means to maintain the required income, USCIS should consider the assets listed in Part 7 of the form.
(5) Part 7 of Form I-864: Use of Assets to Supplement Sponsor’s Income. If a sponsor cannot meet the Poverty Guideline requirement based upon total household income listed on line 24c, he or she may show evidence of assets owned by the sponsor, and/or members of the sponsor’s household, that are available to support the sponsored immigrant(s) and can be readily converted into cash within 1 year.

For assets of the intending immigrant and/or household member to be considered, the household member must complete and sign Form I-864A. USCIS should check to make sure that the Form I-864A is completed and signed by the sponsor and the household member.

(A) Evidence of assets. Evidence of the sponsor’s assets should be attached to the Form I-864. Evidence of the principal sponsored immigrant’s and/or household member assets should be attached to Form I-864A. In each instance, the evidence should establish the location, ownership, and value of each listed asset, including any liens or liabilities for each listed asset. 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; and
• Evidence of ownership and value of any real estate and dates acquired.

(B) Amount of assets required. In order to qualify using assets, the total net value of all assets must generally equal at least five times the difference between the sponsor’s total household income and the minimum income requirement for the current year.

Example for a household size of 4:
125 percent of 2006 Poverty Guideline $25,000
Sponsor's income $19,500
Difference $5,500
Multiply by 5 x 5
Minimum Required Net Value of Assets $27,500

There are two exceptions, however:
• If the adjustment of status applicant intends to immigrate as a spouse of a U.S. citizen or as the child of a U.S. citizen who will not become a citizen under section 320 of the Act because the child has already reached his or her 18th birthday, the “significant assets” requirement will be satisfied if the assets equal three times, rather than five times, the difference between the applicable income threshold and the actual household income.

Example for a household size of 4:
125 percent of 2006 Poverty Guideline $25,000
Sponsor's income $19,500
Difference $5,500
Multiply by 3 x 3
Minimum Required Net Value of Assets $16,500

• If the adjustment of status applicant intends to immigrate as an IR-4 immigrant (orphans coming to the United States for adoption), the parents’ assets only need to equal or exceed the difference between the applicable income threshold and the actual household income.
Example for a household size of 4:
125 percent of 2006 Poverty Guideline $25,000
Sponsor's income $19,500


Difference (Minimum Required Net Value of Assets) $5,500
(6) Joint Sponsors. If the petitioner or substitute sponsor cannot demonstrate ability to maintain a household income of at least 125% (or 100% when applicable) of the Federal Poverty Guidelines, the intending immigrant may meet the Affidavit of Support requirement by obtaining a joint sponsor who is willing to accept joint and several liability with the principal sponsor as to the obligation to provide support to the sponsored alien and to reimburse agencies who provide means-tested benefits to the sponsored alien during the period that the Affidavit is enforceable. The regulations at 8 CFR 213a.2(c)(2)(iii)(C) allow but do not require two joint sponsors per family unit intending to immigrate based upon the same family petition. Further guidance regarding joint sponsors may be found at paragraph (d)(7) above.

(7) Part 8 of Form I-864 or Part 6 of Form I-864EZ. Part 8 of Form I-864 or Part 6 of Form I-864EZ constitute the bulk of the contract and covers the purpose of the Affidavit of Support, which is to overcome the public charge grounds of inadmissibility. It also includes the notice of change of address requirements (the sponsor must notify the Secretary of Homeland Security of the sponsor’s new address within 30 days of any change of address by filing Form I-865 with USCIS), 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. Additionally, it requires 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.
After placing the sponsor under oath, USCIS should verify that the portion under “Concluding Provisions” has been completed.

Once signed, the concluding provisions satisfy the statutory requirement that the sponsor must make a written statement under penalty of perjury indicating that the copies of the Federal income tax returns submitted with the Affidavit of Support are true copies of the returns filed with the Internal Revenue Service.

A photocopy of the signed Form I-864 may be submitted for each spouse and/or child of the principal beneficiary of the adjustment of status application. Copies of supporting documentation are not required.
(8) USCIS Completion of “Agency Use Only” Box. In adjustment cases adjudicated by USCIS, USCIS must complete the “Agency Use Only” box on the first page of the Form I-864 or Form I-864EZ. If the petitioner sponsor does not qualify, USCIS should check the box “Does not meet.” In order for the applicant to be approved, there must be in the file another Form I-864 that meets the requirements from a joint sponsor. In such a case, USCIS must check the “Meets” box, and then sign, date, and note the office code for location.


In cases adjudicated by an immigration judge where the judge did not complete the Agency Use Only box, USCIS will complete the processing of the case after the judge’s decision by completing the box on the USCIS copy of the Form I-864 by checking either the “Meets” or the “Does not meet” box. USCIS must then add a notation, “Adjustment application approved (or denied) by U.S. Immigration Court at (place) on (date).” USCIS will then sign, date, and note the office code for location.

(9) Verification of Information. The Government may pursue verification of any information provided on or with Form I-864, I-864EZ, I-864A (e.g., employment, income, and/or assets) with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration.

If USCIS finds that a sponsor, joint sponsor, or household member has concealed or misrepresented material facts concerning income, household size, or any other material fact, USCIS shall conclude that the Affidavit of Support is not sufficient to establish that the sponsored immigrant is not likely to become a public charge. In this situation, the sponsor or joint sponsor may be liable for criminal prosecution under the general statutes relating to the submission of fraudulent immigration documents. Failure of the sponsor or joint sponsor to provide adequate evidence of income and/or assets will result in the denial of the application for adjustment to lawful permanent residence status.

(l) Insufficient Affidavits Submitted in Support of Adjustment Applications. The Affidavit of Support is not a separate application. It is supporting documentation for an adjustment of status application. Correspondence regarding insufficient Affidavits of Support should be sent to the adjustment applicant and his/her legal representative, but not to the sponsor.
If the Form I-864 or I-864EZ is insufficient, and procedures for requesting additional evidence have been exhausted, the entire adjustment of status application should be denied because the intending immigrant is inadmissible on public charge grounds in addition to any other reasons why the adjustment case may be denied.

The following language should be included in a denial letter of an adjustment of status application which does not fulfill the requirements under section 213A of the Act:

You are not eligible for adjustment of status under INA 245 (a)(2), because you are inadmissible as an alien who is likely at any time to become a public charge pursuant to INA 212(a)(4)(C). 8 USC 1182(a)(4)(A) and 1255(a)(2). If you are an alien seeking adjustment of status as (insert appropriate category: an immediate relative, a family based immigrant, or an employment based immigrant who will be employed by a relative or a relative’s firm) you are inadmissible under this ground unless an Affidavit of Support that meets the requirements of INA 213A, 8 U.S.C. 1183a, has been filed on your behalf. The Affidavit(s) of Support provided in your case does not meet the requirements of section 213A because (insert appropriate language/deficiency; e.g. failure to meet the income requirement, ineligible sponsor, etc.)

Note: This language must be modified in order to address the specifics of each case, including any other reasons for denial. If the applicant is denied due to an ineligible sponsor, be sure to include the reason why the sponsor is ineligible, e.g., the sponsor cannot be a corporation, organization, or other entity, the sponsor is not at least 18 years of age, etc. Details regarding the sponsor’s personal financial matters should not be revealed in the denial letter to the adjustment applicant unless the denial is based at least partially upon such information.

(m) Service Center Processing. The processing of the packet of forms which subsequently produce an alien registration card (I-181, I-485 or OS-155A) includes data entry of Affidavits of Support when they are required by statute.

If an applicant fails to submit an Affidavit of Support when one is required, USICS will request that an Affidavit of Support be submitted before the case can be adjudicated.
In those instances where one or more Affidavits of Support are contained in the packets, data from each of them will be entered into CLAIMS as a subscreen of the I-485 or visa to which it is attached. .
The types of data entry at the Service Centers will be:

• Forms I-864 attached to a Form OS-155A, immigrant visa received from Ports of Entry;
• Forms I-864 attached to a Form I-485 filed and adjudicated at the Service Center; or
• Forms I-864 attached to Form I-485 filed and/or adjudicated at local offices. The data entry in most of these cases will be attached to the data entry of a “copy 3” of Form I-181.

All Forms I-864 will be maintained in the same A or T File in which the controlling form is stored. There is no data entry of information from Form I-864A.

(n) Statistical Reporting. Effective October 1, 2005, hours and actions are tracked on Form G-23.3, Line 171S. Reporting Instructions are provided in the document entitled, "Examinations Activity: G-22.2, G-22.2a, G-22.3, G-22.3a Adjudications Summary Procedures." These procedures implement Administrative Manual (AM) Policy Statement 3.1.101.


(o) Termination of Sponsor’s Obligation and Enforcement. The obligations created under Form I-864 and I-864A terminate when the sponsored alien:
• Becomes naturalized;
• Is credited with at least 40 quarters of employment in the Social Security system;
• Loses or abandons his or her lawful permanent resident status; or
• Dies.

Note: For any qualifying quarter to be creditable for any period beginning on or after December 31, 1996, the alien must not have received any Federal means-tested public benefit during that quarter. A Federal means-tested public benefit is any public benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds defines as a Federal means-tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193). Federal means tested benefits include: SSI (Supplemental Security income), TANF (Temporary Assistance for Needy Families), food stamps, Medicaid, and State Child Health Insurance Programs (SCHIP). State and local means tested benefits vary by jurisdiction.

Note: The qualifying quarters worked by a parent of, or the spouse of such alien during the marriage to the alien may often be credited to the alien beneficiary.
If the sponsored immigrant is the sponsor’s child, the legal obligation made in the Affidavit of Support is not terminated by the child’s adoption after acquiring permanent residence.
If the sponsored immigrant is the sponsor’s spouse, divorce will not terminate the legal obligation made in the Affidavit of Support.
Even when the support obligation has been terminated, the sponsor, or the sponsor’s estate may still be held liable for any reimbursable amount that accrued before the termination of the obligation.

(p) Reimbursement Requests. USCIS is not directly involved in enforcing an Affidavit of Support sponsor’s obligation to reimburse an agency for means tested public benefits. USCIS does, however, make information about the sponsor available to an agency seeking reimbursement. Upon the receipt of a duly issued subpoena, USCIS will provide the agency with a certified copy of a sponsor’s Form I-864.

In addition, USCIS routinely provides the sponsor’s name, address, and Social Security number to Federal, state, and local agencies providing means-tested benefits. This information is used to determine whether a sponsored immigrant who is applying for benefits is eligible for them. These queries are submitted to USCIS on Forms G-845, G-845S, and the G-845 Supplement.


(q) Sponsor’s Address Change Notification. Under section 213A(d) of the Act, the sponsor must notify the Secretary of Homeland Security of the sponsor’s new address within 30 days of any change of address. The sponsor meets this obligation by completing and filing Form I-865 with USCIS. USCIS is obligated by statute to maintain the address and social security number of all sponsors in an automated system.

If a sponsor fails to satisfy this requirement, USCIS may, after notice and opportunity to be heard, impose on the sponsor a civil penalty of not less than $250 or more than $2,000, or if such failure occurs with knowledge that the sponsored alien has received any means-tested public benefits (other than benefits described in 401(b), 403(c)(2), or 411(b) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996) not less than $2,000 or more than $5,000.

http://www.uscis.gov/graphics/lawsregs/handbook/AffSuppAFM062706.pdf

Gruss
Michael

[Michu]

Questions and Answers (Q&As)

June 21, 2006

USCIS ISSUES FINAL RULE REGARDING AFFIDAVITS OF SUPPORT

Q. What is the Affidavits of Support on Behalf of Immigrants final rule?

A. The Affidavits of Support final rule adopts, with specified changes, an interim rule published by the former Immigration and Naturalization Service on October 20, 1997 and made effective on December 19, 1997 (62 FR 54346). This final rule responds to public comments to the interim rule and addresses several issues raised by the interim rule, including: who needs an affidavit of support; how sponsors qualify; what information and documentation sponsors must present; and when the income of other persons may be used to support an intending immigrant’s application for permanent residence. The final rule makes the affidavit of support process less burdensome for sponsors while continuing to ensure that each intending immigrant has a sponsor who has sufficient income and/or assets to support the immigrant(s) he or she is sponsoring. The final rule allows the sponsored intending immigrant to establish that he or she is not likely to become a public charge (e.g., receive certain federal or state means-tested benefits).

Q. When is this final rule effective?

A. This final rule is effective July 21, 2006. It will apply to any application for an immigrant visa or adjustment of status that is decided on or after July 21, 2006 even if the case was filed before July 21, 2006.

NOTE: The following Q&As briefly discuss some of the changes to the affidavit of support process made by the “Affidavits of Support on Behalf of Immigrants” final rule. For a complete description of the provisions of this rule, please refer to the final rule as published in the Federal Register at
71 FR 35732,

http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/06-5522.htm.

Q. Does the final rule provide exemptions for the requirement to file an Affidavit of Support (Form I-864)?

A. Yes. The final rule eliminates the affidavit of support requirement in cases where the sponsored immigrant establishes on the basis of Social Security Administration records that he or she has already worked, or can be credited with having worked, 40 quarters of covered employment.

The final rule also eliminates the requirement of a Form I-864 in the case of the child of a U.S. citizen that, if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship immediately upon entry under section 320 of the Immigration and Nationality Act (the Act), as amended by
the Child Citizenship Act of 2000. In addition, there is no need for an affidavit of support for certain children who accompany their immigrant parent(s) to the United States, but are born after issuance of the immigrant visa to the parent(s) (that is, children who immigrate under section 211(a) of the Act).

Q. Does the final rule establish any new forms?

A. Yes. The final rule establishes two new forms: the EZ Affidavit of Support (Form I-864EZ) and the Intending Immigrant’s I-864 Exemption (Form I-864W). If the petitioner is the only sponsor and he or she is relying only upon income from his or her employment to meet the affidavit of support requirements, the petitioner will be able to file a short form Affidavit of Support, the new EZ Affidavit of Support (Form I-864EZ). Form I-864W provides eligible immigrants a more expeditious means to establish that they are not required to have an affidavit of support filed on their behalf. The final rule also amends Form I-864, Affidavit of Support, and Form I-864A, to conform them to the final rule.

Q. When will USCIS begin to accept Form I-864EZ, Form I-864W, and the amended Form I-864 and Form I-864A? Will USCIS continue to accept old versions of Form I-864?

A. USCIS will begin to accept Form I-864EZ, Form I-864W, the amended Form I-864, and the amended Form I-864A immediately. USCIS will continue to accept old versions of the Form I-864, but only until October 19, 2006, a grace period of 90 days from July 21, 2006, the effective date of the final rule.

Q. If I have already submitted an old version of Form I-864, do I now need to submit a new Form I-864?

A. No. If you submitted an old version of Form I-864, you should not submit a new Form I-864.

Q. Does the final rule change the instructions for preparing the Affidavit of Support?

A. Yes. The final rule requires each sponsor to submit as initial evidence only his or her single most recent federal tax return rather than a return from each of the sponsor’s three most recent tax years, pay stub(s) covering the most recent six months, and an employer letter. In addition, it will no longer be necessary to sign an Affidavit of Support, EZ Affidavit of Support, and Contract Between Household Member and Sponsor (Form I-864A) in front of a notary public, immigration officer, or consular officer. Rather, as permitted by Federal law, the forms will provide that they are signed “under penalty of perjury.” Both of these measures lessen the burden on sponsors and household members without reducing the legal standing or enforceability of the documents they sign.

Q. Does the final rule change how many joint sponsors an immigrating family can have?

A. Yes. In addition to the primary sponsor (who signed the visa petition), the final rule allows two joint sponsors per family unit intending to immigrate based upon the same family petition. No individual may have more than one joint sponsor, but it will no longer be necessary for all family members to have the same sponsor. If two joint sponsors are used, each joint sponsor is responsible for supporting only for the intending immigrant(s) listed on that joint sponsor’s Form I-864, Affidavit of Support.

Q. My sponsor’s income has varied from year to year. What year is most significant in determining the sufficiency of my sponsor’s income?

A. The final rule clarifies that the sponsor’s income in the year in which the intending immigrant filed an application for an immigrant visa or adjustment of status, rather than the earnings last reported to IRS, generally bears the greatest evidentiary weight in determining whether the affidavit of support is sufficient. However, USCIS may request updated evidence and decide the case based on the updated information.

Q. It looks like my sponsor’s household income meets or exceeds the poverty guideline for his or her household size. How does the final rule change the instructions on calculating household size?

A. The final rule allows, but does not require, sponsors to include the income of any relative in the household who is not a dependent if (1) the sponsor includes the relative as part of the sponsor’s household size, and (2) the relative completes a Contract Between Sponsor and Household Member (Form I-864A).

Q. Does a household member have to be living in the household for any specified amount of time under the final rule?

A. No. The final rule eliminates the requirement that household members must have lived in the sponsor’s household for at least six months before their income may be included in household income. Instead, the final rule allows the income of household members, including the intending immigrant, to be included if the income will continue from the same source after the beneficiary attains permanent resident alien status.

Q. My sponsor has used means-tested benefits in the past. Will this affect their ability to sponsor me?

A. No. The supplementary information that was published with the final rule clarifies that use of certain means-tested public benefits does not affect a person’s ability to sponsor an intending immigrant.

Q. My sponsor and/or joint sponsor is using significant assets as part of his affidavit of support. Does the final rule change the requirements for significant assets?

A. Yes. The final rule reduces the value of assets that immediate relative spouses and children of U.S. citizens must have to fill the gap between earned income and the poverty guidelines from five times the difference to three. The gap is reduced further for those sponsoring adopted children who will qualify for citizenship under the Child Citizenship Act, but who do not qualify immediately upon entry.

Q. My original petitioner cannot sponsor me because he or she died. What relief is available to me under the final rule?

A. The final rule implements the Family Sponsor Immigrant Act of 2002, Pub. L. 107-150, which allows the beneficiary of a petition to use of a “substitute sponsor” after the death of the original petitioner if the original petition had been approved prior to the petitioner’s death and other conditions are met. In order to be a “substitute sponsor,” you must be the spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or a legal guardian of the intending immigrant.

The final rule also provides that, if a petitioner files a petition to classify the beneficiary as a spouse of a United States citizen petitioner and then dies, the petition will be treated as approved as a Petition for Amerasian, Widow(er) or Special Immigrant (Form I-360) if (1) USCIS or legacy INS approved the original petition before the petitioner died, and (2) on the date of the petitioner’s death, the beneficiary satisfies certain requirements.

Q. My sponsor lives abroad. Does this mean he or she cannot sponsor me?

A. It depends upon where your sponsor has his or her legal domicile. To file an affidavit of support, a sponsor must have his or her domicile in the United States. Under the final rule, a sponsor is domiciled at the place of his or her principal residence. Therefore, your sponsor may file an affidavit of support if he or she shows, by a preponderance of the evidence, that his or her domicile is in still in the United States because he or she is only residing abroad temporarily.

The final rule also clarifies that a sponsor who is not domiciled in the United States may submit an Affidavit of Support if the sponsor shows, by a preponderance of the evidence, that he or she will establish his or her domicile in the United States no later than the date of the intending immigrant’s admission or adjustment of status. Thus, the sponsor must arrive and establish domicile in the United States before or at the same time as when the intending immigrant becomes a lawful permanent resident through adjustment of status or admission on an immigrant visa at a port of entry.

Q. If I am in removal proceedings, and have applied for adjustment of status, who has jurisdiction to review my affidavit of support?

A. The final rule clarifies that when an alien applies for adjustment of status in removal proceedings, the immigration judge’s jurisdiction to adjudicate the adjustment application includes authority to review the sufficiency of the affidavit of support.

Q. May USCIS disclose a sponsor’s social security number and last known address to a benefit-granting agency?

A. Yes. The final rule clarifies that USCIS may disclose a sponsor’s social security number, as well as the sponsor’s last known address, to a benefit-granting agency seeking to obtain reimbursement from the sponsor when an alien applies for a benefit.

The new Affidavit of Support forms will be available on the USCIS website at www.uscis.gov, at local USCIS offices, and via the USCIS Forms line, 1-800-870-3676. For complete information please see the “Affidavits of Support on Behalf of Immigrants” Final Rule as published in the Federal Register at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/06-5522.htm
(71 FR 35732).
For additional information, visit the USCIS website, www.uscis.gov, or contact the USCIS National Customer Service Center at 1-800-375-5283.
– USCIS –

http://www.uscis.gov/graphics/publicaffairs/questsans/AffSupp_062106QA.pdf

Gruss
Michael