In nearly all family-based cases, an affidavit of support is required to be executed by the petitioner/sponsor. Due to the stringent guidelines, however, not all petitioners qualify to meet 125% of the poverty guideline level, thereby placing the visa or green card application in jeopardy. A visa or permanent resident applicant can potentially be denied under the “public charge” inadmissibility ground if there are not sufficient financials. USCIS will deem somebody a public charge if an officer has determined that the applicant will likely become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long term care at government expense.” See USCIS Public Charge Fact Sheet (. This can be especially critical when the petitioner cannot otherwise meet the requirements through either a joint sponsor or the use of assets (petitioner’s, household member’s, or intending immigrant’s). Therefore, for those whom an I-864 may be problematic, it is always worth exploring whether an af fidavit is required in the first place. There are certain limited exceptions where an intending immigrant may file an I-864W in lieu of the I-864. There are essentially four classes of people who are considered exempt from the affidavit of support requirements:
1) The intending immigrant has earned or can be credited with 40 quarters of coverage under the Social Security Act. (40 quarters is equivalent to roughly ten years.) Individuals may be credited with 40 quarters either through their own work or through quarters worked by a spouse during the marriage or parent during the time the person was under 18 years of age, or a combination of the above. Verification will need to be provided by the Social Security office.
2) The intending immigrant will automatically become a US Citizen under the Child Citizenship Act of 2000, as codified under section 320 of the Immigration and Nationality Act (INA). Under section 320, an immigrant child will become a US Citizen if
a. At least one parent of the child is a US Citizen
b. The child is under 18 years of age
c. The child is residing in the United States in the legal and physical custody of the US Citizen parent after having been admitted as an immigrant
3) The intending immigrant is filing for an immigrant visa as a self-petitioning widow(er)
4) The intending immigrant is filing for an immigrant visa as a self-petitioning battered spouse or child. These are otherwise known as Violence Against Women Act or “VAWA” cases.
If an individual falls into any of the above four categories, the regular affidavit of support need not be filed. Instead, the individual will need to file the I-864W Request for Exemption. As a practical matter, the form should be filed proactively in applicable cases so finances do not become an issue or complication down the road, especially when the petitioner’s ability to support may be questionable.
For more information on the ins and outs of the I-864, and how to meet the requirements if you do not qualify, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.