Sponsoring for Immigrant Visas or Adjustment of Status

Immigration sponsorship, myattorneyusa.com

 

Introduction

In most cases, an alien applying for adjustment of status or an immigrant visa will require a sponsor to file an affidavit of support on his or her behalf. This article will use the applicable statutes, regulations, and immigration agency guidance to provide an overview of the requirements that a person must meet in order to sponsor an alien and requirements for filing a successful application. To learn more about affidavits of support, please consult our articles about overcoming the presumption of public charge [see article] and sponsor liability [see article].

Rules for Qualifying to Sponsor an Alien in the United States for Adjustment of Status or an Immigrant Visa

Pursuant to INA § 213A(f) [link], a “sponsor” is an individual who executes an affidavit of support for an alien seeking admission or adjustment of status to the United States. A sponsor is statutorily defined in INA § 213A(f) as a person who:

(A) is a citizen or national of the United States or an alien who is lawfully admitted to the United States for permanent residence;
(B) is at least 18 years of age;
(C) is domiciled in any of the several States of the United States, the District of Colombia, or any territory or possession of the United States;
(D) is petitioning for the admission of the alien under INA § 204; and
(E) demonstrates the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.1

Most sponsors will file a Form I-864, Affidavit of Support. In other cases that we will explore in an article, certain sponsors may instead file a Form I-864EZ, Form I-864W, or Form I-134.

The requirement that a sponsor be “domiciled” in the United States means that the sponsor's principal actual dwelling place must be in the United States.2 If the prospective sponsor goes abroad for certain residency or naturalization purposes described in INA INA §§ 316(b), 317, or 319(b), he or she may be considered domiciled in the United States for purpose of acting as a sponsor.3 So long as the applicant is domiciled in the United States when seeking to act as a sponsor, there is no requirement for how long the prospective sponsor must have been domiciled.4

Situations Where Sponsor is not Required

The Form I-864 requirement is inapplicable for (except in most cases involving a relative) diversity immigrants, special immigrants, self-petitioning immigrants (widows or widowers, spouses or children subjected to battery or extreme cruelty, and certain children, spouses, and grandparents under the USA Patriot Act), refugees and asylees applying for adjustment, Cuban adjustment applicants, registry beneficiaries,5 and persons who have already earned or can be credited with 40 quarters of coverage under the Social Security Act.6 7 In family-based petitions where the beneficiary is the child of a U.S. citizen who will be immediately eligible for naturalization pursuant to INA § 320(a), an affidavit of support is not required.8 Other persons who do not require affidavits of support in seeking admission to the United States or adjustment of status are children admitted as lawful permanent residents under INA § 211(a) and 8 C.F.R. § 211.1(b)(1) who are returning with a parent who is a U.S. citizen or lawful permanent resident,9 derivative beneficiaries of employment-based immigrant visa petitions, and applicants for K-110 and K-311 visas.12

Rules for Meeting the Income Requirement for Sponsorship

In order for a sponsor to demonstrate that he or she can maintain an annual income equal to at least 125 percent of the Federal poverty line (or 100 in certain cases, see below), certain evidence is required. First, statute requires a sponsor to provide certified copies of his or her last three years of federal income tax returns, along with a statement under oath that the returns are genuine. However, current USCIS regulations and policies [see PDF], which have also been adopted by the Department of State, only require that sponsors submit a complete federal income tax return from the most recent taxable year.13 Although only one year is required under current policies, there is nothing to preclude a sponsor from submitting three years of tax returns as additional evidence.

The exact income that a sponsor must demonstrate depends on the poverty guidelines in a given year and how many people live in the sponsor's household.14 Alternatively, this requirement can be satisfied if either the sponsor or the sponsored aliens can demonstrate holding significant assets.15 16 Disability and Social Security benefits may also count toward meeting the income requirement, but Supplemental Security Income (SSI) cannot.17 If the sponsor is on active duty in the United States armed forces and is the spouse or child of the sponsored alien, he or she may qualify by demonstrating the means to maintain an annual income of only 100 percent of the federal poverty line.18

Rules for Co-Sponsorship

In certain employment based cases, the following individuals qualify as sponsors without petitioning for the alien when:

He or she is not petitioning for the alien, but is a relative of the sponsored alien who has filed a classification petition, and has a significant ownership interest in the entity that filed the petition;19 and
Demonstrates the ability to meet the income requirement (or in the case of an affidavit for a spouse or minor child of the petitioner, 140 percent of the Federal poverty line instead of 125 percent);20 or
Does not meet the income requirement, but accepts joint and several liability together with a person in order to satisfy the requirement.21 22

If the joint-sponsor lives in the same household as the petitioning sponsor, he or she must sign a Form I-864A, Contract Between Sponsor and Household Member, in conjunction with the petitioning sponsor, who must file a regular Form I-864.23 In this case, the joint-sponsor need not be a U.S. citizen or lawful permanent resident.24

Other joint sponsors must file their own Form I-864s and be U.S. citizens or lawful permanent residents who are at least 18 years of age who currently live in the United States.25 If the joint sponsor is on active duty in the U.S. armed forces and the immigrant is his or her spouse or child, the income requirement is only 100 percent of the federal poverty line.26

Certain other persons meet the statutory definition of “sponsor” provided that:

He or she accepts joint and several liability with a petitioning sponsor or a relative of an employment-based immigrant (provided that the relative has a significant ownership stake in the entity that seeks to employ the immigrant) and demonstrates the means to maintain an annual income of at least 125 percent of the federal poverty line;27 or
He or she is a spouse, parent, mother-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, grandparent, or grandchild of a sponsored alien or the legal guardian of a sponsored alien, meets all of the requirements for sponsorship save for meeting the income requirement, and executes an affidavit of support for the alien28 in a case in which the original petitioner for the alien died after approval of the petition and the Secretary of Homeland Security determines that revocation of the petition under INA § 205 would be inappropriate,29 or the petition is being adjudicated under the surviving relative consideration.30

Family members taking up a petition after the death of an original sponsor may file a simplified Form I-864EZ, Affidavit of Support Under Section 213A of the Act when there is only one beneficiary, the sponsor has a W-2, and there is no requirement to demonstrate significant assets (because the income requirement cannot be otherwise satisfied), and there are no joint sponsors.31 Co-sponsors from the same household must still file a Form I-864A. In special cases where the person is not required to file a Form I-864 (persons who have earned 40 quarters of coverage under the Social Security Act, who are intending immigrant children who are slated to become U.S. citizens under provisions of the Child Citizenship Act of 2000, or who are self-petitioning widows or widowers or battered spouses or children) must file a Form I-864W, Intending Immigrant's Affidavit of Support.32 If a person is not required to file a Form I-864, but is required to overcome the presumption of public charge, he or she may use a Form I-134, Affidavit of Support.33

Filing a Form I-864 (Or other document if applicable)

For persons seeking to sponsor an applicant for adjustment of status, the sponsor's Form I-864 and its supporting documents should be filed along with the applicant's Form I-485, Application to Register Permanent Residence or Adjust Status.34 For persons seeking to sponsor an applicant for an immigrant visa, the I-864 and its supporting documents should be sent to the National Visa Center (NVC).35 In both cases, the I-864 should be filed within 6 months of being signed, although the DOS may accept signed affidavits later than that provided that they are submitted one year before the adjustment or immigrant visa applicant's interview.36

Typically, a sponsor must submit along with his or her Form I-864:

Federal tax returns for the most recent taxable year (one year is sufficient),37 including W-2 forms; and
Evidence of current employment; and
Evidence of sufficient income to meet the income requirement for sponsorship; and
The current edition (at the time of filing) of the poverty guidelines (Form I-864P, Poverty Guidelines).38

In most cases, absent any reason to believe that the facts on the Form I-864 and its supporting materials do not demonstrate that the sponsor meets the income requirement for sponsorship, the Form I-864 will likely be approved.39

If a member of the sponsor's household is filing a Form I-864A, he or she must provide the same types documentation as the sponsor along with the signed affidavit.40

In most cases when a person is applying to sponsor a family member, the sponsor must overcome the presumption of public charge found in INA § 212(a)(4). Please read our detailed article on overcoming the presumption of public charge [see article] for more information about the subject.

Advice

Before seeking a sponsor, a person filing for an immigrant visa or for adjustment of status should make sure that he or she is not already exempt from the sponsorship requirement [see section].

Persons who are seeking to file affidavits of support should be aware of sponsor liability [see article]. Failing to meet the responsibilities of sponsorship may subject the sponsor to litigation and serious penalties. An experienced immigration attorney will be able to help prospective sponsors understand the concept of sponsor liability. Any prospective sponsors who are having difficulty in meeting the requirement for being domiciled in the United States, or who cannot meet the income requirement on their own, may consult an experienced immigration attorney to learn of case-specific solutions are available. Due to the presumption of public charge, applications to sponsor family members for immigration visas or adjustment of status may be treated with more scrutiny. For this reason, applicants who are seeking to sponsor family members, especially if they do not clearly meet the income requirement on their own, should definitely consult with an experienced immigration attorney to learn if sponsorship is plausible for them, and if so, for assistance in putting together an application that may satisfy the requirements for sponsorship.

_______________________

  1. List derives from INA §§ 213A(f)(1)(A)-(E)
  2. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. (ALIA Publications 14th ed. 2014) 77 citing 8 C.F.R. § 213a.1
  3. Kurzban 77, citing 8 C.F.R § 213a.2(c)(1)(ii)(A); Memo, G.C., INS, supra; AFA § 20.5. DOS agrees. Cable, DOS 98-State-042068 (Mar. 12, 199), reprinted in 74 No. 13 Interpreter Releases 468-70 (Apr. 6, 1998)
  4. Kurzban 77, citing Cable, 98-State-042068, supra.
  5. Kurzban 76, citing INA § 249 for statute on registry benefits
  6. Kurzban 76, citing 8 C.F.R. § 213a.2(a)(2)(ii)(C); 71 FR 35732, 35733 (June 21, 2006); Memo, Cronin, Acting Ex. Assoc. Comm. Programs, HQPGM 70/1 (May 17, 2001), published on AILA INfoNet at Doc. No. 01060729; [explaining that quarters are based on income calculated during a year rather than the number of days worked during a quarter].
  7. Kurzban 76, citing Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.1.13 (June 27, 2006) at p.5, published on AILA InfoNet at Doc. No. 06063013; Memo, Cronin, Acting Assoc. Comm. Office of Program (70/23.1) (Mar. 7, 2000), published on AILA InfoNet at Doc. No. 00032704
  8. Kurzban 76, citing INA § 320(a); 8 C.F.R. 213a.2(a)(2)(ii)(E); Memo, Cronin, Acting Ex. Assoc. Comm. Field Operations, HQ PGM 50/10 (May 17, 2001), published on AILA InfoNet at Doc. No. 01060821; Cable, DOS, 01-State-1050806 (June 16, 2001), published on AILA InfoNet at Doc. No. 01061691.
  9. Kurzban 76
  10. For fiancées of U.S. citizens seeking admission as lawful permanent residents where the couple is planning to get married within 90 days of the K-1 beneficiary entering the United States
  11. For spouses of U.S. citizens seeking admission as lawful permanent residents
  12. Id.
  13. INA § 213A(f)(6)(i) [for statutory 3-year requirement]; but see 8 C.F.R. § 213a.2(c)(2)(i) [1-year]; Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 at 15, 18 (June 27, 2006); Cable DOS “Revised Requirements for Form I-864 Processing.” 06-State-051172 (Mar. 30 2006)
  14. Kurzban 78, explaining also that for USCIS purposes, the guidelines for a given year become effective in Marc, citing Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 at 15, 18 (June 27, 2006)
  15. INA § 213A(f)(6)(ii)
  16. Kurzban 78, explaining that pursuant to regulations and agency guidance, bank statements covering the past 12 months, stocks, bonds and CDs and dates acquired, personal property, and real estate are examples of things that may help demonstrate “significant assets” in order to satisfy the requirement, citing 8 C.F.R. § 213a.2(c)(2)(iii)(B); Cable, DOS, 97-State-211673 (Nov. 8, 1997), reprinted in 74 No. 48 Interpreter Releases 1923-30 (Dec. 18, 1997)
  17. Kurzban 78, citing Cable, DOS (98-State-133584)
  18. INA § 213A(f)(3)
  19. INA § 213A(f)(4)(A)
  20. INA § 213A(f)(B)(i)
  21. Pursuant to INA § 213A(f)(2), this person is a “sponsor”
  22. INA § 213A(f)(4)(A), (B)
  23. Kurzban 77
  24. Id., citing 8 C.F.R. § 213a.2(c)(2)(i)(C)(1); 8 C.F.R. § 213a.1
  25. Kurzban 77, citing 8. C.F.R. § 213a.2(c)(1)
  26. Kurzban 77, citing 8 C.F.R. § 213a.2(c)(2)(iii)(C)
  27. INA § 213A(f)(5)(A)
  28. INA § 213A(f)(5)(B)
  29. INA § 213A(f)(5)(B)(i)
  30. See INA § 204(I) for statute on surviving relative consideration
  31. Kurzban 79, citing 8 C.F.R. § 213a.2(a)(1)(i)(A)
  32. Kurzban 79
  33. Id.
  34. Kurzban 79
  35. Id.
  36. Id., citing Cable, DOS (99-State-220435) (Nov. 28, 1998), reprinted in 76 No. 6 Interpreter Releases 247 (Feb 8. 1999)
  37. Kurzban 80 (for sufficiency of one year of tax returns), citing, 8 C.F.R. § 213a.2(c)(2)(i); Cable DOS “Revised Requirements for Form I-864 Processing.” 06-State-051172 (Mar. 30 2006)
  38. Kurzban 79, citing for the list, INA §§ 213A(f)(6)(A), (B); 8 C.F.R. §§ 213a.2(a)(11)(ii), 213a.2(c)(2)(i)(A)
  39. Kurzban 80, citing 8 C.F.R. § 213a.2(c)(2)(ii)(C)
  40. Kurzban 80, citing 8 C.F.R. § 213a.2(c)(2)(i)(C)(4)

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 76-80, Print. Treatises & Primers.