Foreigners are barred from becoming U.S. permanent residents if they will become a financial burden on society – that is, if it appears they will require federal, state or local government benefits.
For this reason, anyone applying to be a U.S. permanent resident based on a family tie to a U.S. citizen or permanent resident must have a financial sponsor. A sponsor is also required for a family member coming to work for a relative, or for a company in which a relative owns at least 5 percent.
An Affidavit of Support (Form I-864) is the immigration financial document supporting someone else’s application to become a lawful U.S. permanent resident (green card holder). By signing the Affidavit of Support, the sponsoring individual makes a binding contract with the U.S. government to financially support the person named on the affidavit in the event that the sponsored person cannot support themself.
If the sponsored person or any dependent receives any designated federal, state, or local means-tested public benefits, the agency providing the benefit “shall request reimbursement” from the sponsor. That is, if the immigrant receives government benefits, the sponsor will have to pay them back.
An Affidavit of Support is legally enforceable. Federal, state and local governments can sue to enforce it, in order to recoup financial benefits the sponsored person receives from the government. It is also enforceable by the sponsored person – if they become unable to support themselves, they can sue their sponsor to support them.
The sponsor’s financial responsibility usually lasts until the sponsored individual either becomes a U.S. citizen, or can be credited with 40 qualifying quarters of work (usually 10 years) under the Social Security Act.
All immediate relatives of U.S. citizens (which include parents, spouses, and unmarried children under the age of 21, including orphans) and relatives who qualify for immigration to the United States under one of the family-based preferences are required to obtain an Affidavit of Support from the person sponsoring them for permanent residence.
This includes:
Sponsors must be at least 18 years old and a U.S. citizen or a permanent resident. They must have a home in the United States, or a territory or possession of the United States. Usually, this means they must actually live in the United States. If they live abroad, they may still be eligible to be a sponsor if they can show that their residence abroad is temporary, and that they still have a home in the United States.
Sponsors must also meet certain income requirements. They must show that their household income is equal to or higher than 125% of the U.S. poverty level for their household size. (A “household” includes the sponsor, their dependents, any relatives living with them, and the immigrant(s) they are sponsoring.) The more people who live in the sponsor’s household, the higher their income will have to be.
If the sponsor cannot meet the minimum income requirements, they may:
The sponsor’s obligations begin when the sponsored immigrant obtains lawful permanent resident status. This means a sponsor can withdraw the affidavit anytime before the sponsored immigrant is granted the green card.
The sponsor’s responsibility usually lasts until the sponsored immigrant either becomes a U.S. citizen, or is credited with 40 quarters of work under Social Security guidelines (usually 10 years). It also ends if the sponsored immigrant dies, or if the sponsor dies, or if the sponsored immigrant ceases to be a lawful permanent resident of the United States and leaves the country.
Divorce does not end the obligation to support the sponsored individual. That is, if the sponsor supported their spouse’s petition to become a U.S. permanent resident, and then they divorce, the sponsor’s obligation to support the (now ex-) spouse continues even though the marriage has been dissolved.
Similarly, if the sponsor supported the permanent residence applications of their spouse’s children, the financial obligation for the stepchildren does not end upon divorce from the parent. It does not matter how old the stepchild is – if the stepchild is an adult, the sponsor will not have to pay any child support for the stepchild, but the obligation to honor the Affidavit of Support continues. If the stepchild chooses not to get a job, the stepchild will be able to live off of the sponsor for the length of time the Affidavit of Support is valid (i.e., ten years).
Notably, the sponsor may continue to be liable for the support obligation even if the spouse’s application for permanent residence is denied. If this happens, the foreign spouse has the right to have their case heard by an immigration judge. The obligation to support the spouse continues until and unless the spouse is actually deported, and in the meantime the spouse can sue to enforce the Affidavit of Support.
Even bankruptcy does not end the support obligation. Most debts are dischargeable in bankruptcy, but this is not true for “domestic support obligations.” Under U.S. court law, an Affidavit of Support is a domestic support obligation.
Nevertheless, there have been cases where an Affidavit of Support has been determined to be dischargeable. It is best to consult with an immigration attorney or a bankruptcy attorney about such a situation.
The U.S. government has the right to verify any information provided on the Affidavit of Support, including employment, income, or assets. They can contact the sponsor’s employer, bank or other financial institution, the IRS, and the Social Security Administration. If the government finds that the sponsor knowingly and willfully falsified or concealed a material fact, or submitted a false document, the underlying petition for permanent residence will be denied.
In addition, the sponsor will face severe penalties provided by law and may be subject to criminal prosecution.
As mentioned, the penalties for submitting an untruthful Affidavit of Support can be serious. It is important to get the input of an experienced immigration lawyer to avoid even the appearance of falsification.
In addition, immigration petitions are complex (Form I-864, the official Affidavit of Support, is 10 pages long) and working with an attorney would be very helpful. It takes about a year for a permanent residence petition to be approved, and if there are any mistakes or omissions in the Affidavit of Support, that will only exacerbate the problem of the length of time it takes to process the application.
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