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What To Do If Sponsor’s Income Is Insufficient

A U.S. citizen or lawful permanent resident who petitions or sponsors a family member for a green card must submit with the relative’s adjustment of status application or immigrant visa application an affidavit of support or form I-864 to guarantee that the intending immigrant will not become a public charge.

In order to be eligible to execute an affidavit of support, the sponsor must be a U.S. citizen or a lawful permanent resident, at least 18 years old and domiciled in the United States.

The sponsor’s income must also be able to meet at least 125 percent of the Federal Poverty Guidelines. This varies according to the sponsor’s household size which will include the number of immigrants previously sponsored. The 125 percent threshold is determined at the time of the filing of the affidavit of support.

Whether it is reasonable to assume that the sponsor will be able to sustain the minimum income required is the question that examiners look into to determine if the affidavit of support is sufficient. If the sponsor’s income in the most recent tax year meets the 125 Poverty Guideline threshold, then it is generally acceptable.

However, there are instances when even if the income indicated in the most recent tax return does not meet the requirement, USCIS may still find the affidavit of support sufficient. One example is when the sponsor’s income from a new job can meet or even exceed the 125 percent threshold. In this case, the affidavit of support in itself may be sufficient.

On the other hand, USCIS might also find that the affidavit of support is not sufficient even if the income reflected in the most recent tax return meets the requirement. An example is when the job is only temporary in nature and the USCIS finds that the sponsor is not likely to maintain the income.

When the sponsor’s income is insufficient, his assets may be counted to meet the shortfall. The net value of the assets must equal at least 5 times the difference between the household income and the minimum income required. The assets included should be “readily available into cash within one year.” Assets may include money in the bank and personal properties such as automobiles. The assets listed must be specifically described including the existence of liens and liabilities. If it is a bank statement, the transaction history must cover at least 12 months. Personal properties may be considered using standard valuations and appraisals.

The sponsor may not use supplementary security income or SSI, food stamps and other federal means-tested benefits as income.

If the petitioner has not filed an income tax return, he may still sponsor his relative; however, he must file a late tax return and proof of late-filed tax return must be obtained prior to filing. If the petitioner had no legal duty to file, he must provide an explanation.

The income of other household members may also be included in the affidavit of support to augment the household income. This is made through Form I-864A. The intending immigrant’s income may also be included so long as the income was earned through lawful employment and it will continue to be available after he obtained her green card. This is indicated in the affidavit of support of the principal sponsor and will not require the submission of Form I-864A.

If the sponsor does not meet the income requirement, a joint sponsor may file a separate Form I-864. The joint sponsor must meet the income requirement separate from the sponsor. Their income cannot be combined to meet the requirement.

Abandonment of LPR Status Due to Trips Abroad

The process of becoming a permanent resident of the United States is often a long and costly journey. Perhaps because they are relieved to finally get their green card and long to travel or handle personal affairs abroad, some new lawful permanent residents (LPR) believe that they can just go in and out of the U.S. as long as they make it a point to reside here for at least a few months each year.

A recent decision of the 6th Circuit Court of Appeals should serve as a warning for green card holders. In Lateef v. Holder, the Court found that the LPR had abandoned her LPR status for spending the majority of her time as an LPR in her native country.

Immigration authorities found that out of 116 months that Lateef had been an LPR, she spent only 35% or 40 months in the U.S. and 65% or 76 months abroad. She had no employment history or properties in the U.S. and her only ties were her parents and brothers.

Lateef’s seven trips abroad were of various durations. She went back to her native country shortly after becoming an LPR in order to finish her medical studies and for this purpose obtained a re-entry permit. The court found this trip to be temporary because it ended upon her graduation, but not so with her subsequent trips between 1995 and 2001. She married her husband during one visit. On another, she took an exam and became pregnant. She made visits to see her husband and to attend to her daughter who was not only missing her but was also developing behavioral problems, and she also helped plan her brother’s wedding.

In November 1999 she returned to her home country because of her daughter’s continuing behavioral problems. In November 2000, her husband and children were granted immigrant visas. She remained abroad for another three months to attend weddings.

Lateef and her family attempted to enter the U.S. in February 2001 but a few months later they were placed under removal proceedings. Lateef’s abandonment of status was imputed to her daughter and served as basis to revoke the immigrant visas of her husband and her child. They were ordered removed by the immigration judge.

The law allows an LPR to temporarily leave the U.S. and maintain her LPR status if she has not abandoned her LPR status or if she has not been away from the U.S. for more than 180 days. A protracted trip abroad must have been caused by reasons beyond her control and for which she was not responsible in order for her to remain admissible.

In determining whether Lateef’s trips abroad were temporary, the appellate court looked into whether the trip was for a “relatively short period fixed by some early event” or ended “upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time”.

The Court said that Lateef remained abroad for one year and three months without any definite plans of returning to the U.S. It noted that although Lateef said that she wanted to return to the U.S. as soon as possible, she only did so three months after her family obtained immigrant visas. The Court found that this last trip showed that Lateef abandoned her LPR status because it was over 180 days and was not caused by reasons beyond her control.

Lateef was found to have abandoned her LPR status even though the record showed that she took steps to be licensed as a doctor in the U.S., applied for medical residency positions, and applied for citizenship. Note that she also tried to bring her own family here as immigrants and that her main reason for her last stay abroad was her daughter’s continuing behavioral problems..

This case is a reminder that abandonment of status is a serious matter that could affect not just the LPR but also any minor children and those whom the LPR petitioned for. A green card holder must not embark on extended trips abroad without a strategy to preserve LPR status in case issues arise. It must be remembered that having a green card is a privilege that grants an alien benefits and obligations, but it is also a privilege in the sense that it can be taken away.

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