In a family-based visa petition, the petitioner must submit an affidavit of support to show that the intending immigrant has adequate means of financial support and will not become a public charge, or someone who depends on the government for subsistence. A person who is likely to become a public charge is inadmissible or not eligible to become a lawful permanent resident.
The sponsor in an affidavit of support (Form I-864) must be a U.S. citizen, national or a lawful permanent resident, at least 18 years old, and domiciled within the United States or a U.S. territory or possession.
The rules require a sponsor to have the means to maintain an annual income equal to at least 125% of the Federal poverty line for the sponsor’s household size. The household size for purposes of Form I-864 includes the immigrant being sponsored as well as all immigrants previously sponsored.
Take for example a U.S. citizen who filed an I-130 petition for his parent and now must submit an affidavit of support. If the petitioner has a spouse and one dependent child, he must have a minimum income of $27,937, which is 125% of the poverty guideline for a four-member household.
If the sponsor’s income is not enough, assets of the sponsor, the sponsored immigrant, and other household members may be counted. Another option is to find a joint sponsor who meets the financial requirements.
To prove that the sponsor’s income meets 125% of the poverty guidelines, a copy of the latest tax return is usually determinative. However, immigration authorities may request proof that the sponsor has sufficient current income and the sponsor may need to provide current pay stubs and an employer letter.
Petitioners who are self-employed or have a business that shows a loss in their tax returns may still qualify as a sponsor if they have enough income or assets that are readily available or could be converted into cash within one year. Examples of these assets include savings, stocks and bonds, and personal property.
If real estate sought to be included as an asset is situated in an area with a depressed real estate market, the examiner might not be convinced that it is “readily convertible to cash” within one year. Furthermore, if the property is underwater or subject to debt greater than its current market value, the examiner might exclude it as substitute for income.
“Income” includes income from employment, pension, interest income, dividends, alimony and child support. Receipt of means-tested public benefits does not disqualify a petitioner from sponsoring an immigrant, although these benefits do not always count as income. For instance, supplemental security income (SSI), food stamps and Medicaid are not income, but unemployment compensation and workers’ compensation may be included.
Failure to file tax returns sometimes arises in the case of petitioners who have worked on a “cash basis”. In some cases, the tax returns also show incorrect filing status (such as filing as single when married) and improper dependent claims. Petitioners must make sure that they have properly filed all necessary tax returns, and if they did not, that they file amended or late-filed tax returns.
Concealment or misrepresentation of material facts relating to income, assets and household size may not only lead to a finding that the affidavit of support is not sufficient to overcome the public charge ground of inadmissibility. It could also expose the sponsor or joint sponsor to liability for criminal prosecution for submission of fraudulent immigration documents.