The Law Office of Ryan M. Gibson Uncategorized Questions about the Affidavit of Support in Immigration Part 1 of 2

Questions about the Affidavit of Support in Immigration Part 1 of 2

What is an Affidavit of Support ?


In the immigration context, an Affidavit of Support is a document a person signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. The person who signs the affidavit of support is known as the sponsor. The sponsor literally sponsors the relative (or other individual) coming to live in the United States. The sponsor is usually the same person as the petitioner of an immigration petition for a family member.

An affidavit of support is legally enforceable. The sponsor’s responsibility usually lasts until the family member or other individual either becomes a U.S. citizen or can be credited with 40 quarters of work which usually takes about 10 years of working.

The law of affidavits of support is located in the Immigration and Nationality Act sections 212 (a)(4) and 213A. The provisions are codified in Title 8 of the Code of Federal Regulations at 8 CFR 213a.

Who Submits and Affidavit of Support?

The following individuals are required by law to submit a Affidavit of Support (I-864) if the goal I sto obtain an immigrant visa or adjustment of status.  The form itself is completed by the petitioner in most cases.

  • All immediate relatives of U.S. Citizens
    • parents, spouses and umarried children under 21, including orphans
  • First Preference Category
    • Unmarried, adult sons and daughters of U.S. citizens. Adult means over 21 in this context.
  • Second Preference Category
    • Spouses of Permanent Residents and unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
  • Third Preference Category
    • Married sons and daughters of U.S. Citizens, their spouses and their unmarried minor children
  • Fourth Preference
    • Brothers and sisters of adult U.S. citizens, their spouses and there unmarried minor children

additional situations: also employment based preference immigrants in cases only when a U.S. citizen or permanent residenbt relative filed the immigrant visa petition, or such relative has a significant ownership interest (5% or more) in the entity that filed the petition.

Please note: An individual listed above does not nee to submit an affidavit of support IF they can show that they EITHER:

  1. Already worked 40 qualifying quarters as defined in title II of the Social Security Act
  2. Can be credited with 40 qualifying quarters as defined in Title II of the Social Secrity Act
  3. Are the child of a U.S. Citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under the Immigration and Nationality Act, as ammended by the Child Citizenship Act of 2000.

When you do NOT need to Submit an Affidavit of support

these the relatively unusual circumstances when you will not be required to file a Affidavit support

  • A person who has earned OR can be credited with 40 Qualifying quarters (credits) of work in the U.S.
  • A person who has an approved I-360, Petition for Amrasian, Widow(er) or Special Immigrant, as a self-petitioning Widow or Widower.
  • a person who has an approved !-360 as battered spouse or child
  • orphans adopted by U.S. citizens abroad if a full and formal adoption takes place before the orphan acquires permanent residence and both adoptive parents have SEEN the before or during the adoption.

Special rule for Fiance,Spouse, or Child as “K” non-immigrant visa.

  • if your relaive is a fiancé (k-1), a spouse(k-3), or a “k-2” or a “k-4” child of fiancé or spouse, you do not need to submit an affidavit of support at the time you file your I-129F petition. Instead, you should submit an affidavit of support at the time your fiancé , spouse, or child adjusts status to permanent resident after coming to the United States.

Sponsor for Affidavit of Support

  • If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also me 18 years old or older and U.S. citizen or a permanent resident.
  • You must be domiciled in the U.S. or it’s territories or possessions. Usually means you must live in the United States, territory or possession, in order to be sponsor. If you live abroad you must show that your residence abroad is temporary and that you still have a domicile in the United States.
  • Section 213A of the INA permits both a “joint sponsor” and a “substitute sponsor” in certain cases.

Joint Sponsor

  • A joint sponsor is someone who is willing to accept legal responsibility for supporting your family member with you. A joint sponsor must meet all the same requirements as you except the joint sponsor does not need to be related to immigrant. The joint sponsor must reach the 125% requirement alone. You cannot combine your income with the joint sponsor to meet the %125 of poverty income level.

Substitute Sponsor

  1. If the visa petitioner has died after the approval of the visa petition but U.S. Citizenship and Immigration Services decides to let the petition continue, a substitute sponsor must file a form I-864 in place of the deceased petitioner. The substitute sponsor must be related to the intending immigrant in one of the following ways:
    • spouse
    • parent
    • Mother-in-law
    • father-in-law
    • sibling (brother or sister)
    • child
    • son
    • daughter
    • son-in-law
    • daughter-in-law
    • sister-in-law
    • brother-in-law
    • grandparent
    • grandchild
    • legal guardian
  2. AND
    • you must be a U.S. citizen or national or a Permanent Resident
    • be at least 18 years of age
    • be domiciled in the United States
    • Meet all the financial requirements of sponsor under INA 213A
    • The substitute sponsor assumes all obligations as the deceased sponsor