Labor Immigration Law

United States Labor Immigration Law News and Analysis

I-864 Articles

2009 Poverty Guidelines Become Effective For Affidavit of Support (I-864) Filings

The Department of State (DOS) has released a cable to its consular posts to begin using the 2009 poverty guidelines in calculating the levels of income and assets required by immigrant visa petitioners and joint sponsors.  DOS requires that when processing immigrant visa cases subject to the Affidavit of Support (I-864) requirement, consular posts must use 125 percent of the applicable poverty guidelines as the minimum income that a petitioner and/or a joint sponsor must demonstrate, or 100 percent for an active member of the U.S. Armed Forces sponsoring his or her spouse or children.

The 2009 poverty guidelines were released on January 23, 2009, by the Department of Health and Human Services. The  DOS cable directs all consular posts to begin using the new guidelines and require that immigrant visa petitioners and joint sponsors completing Forms I-864 and I-864EZ (Affidavit of Support) to show sufficient income/assets to comply with the new guidelines.  The effective date is March 1.

No comments

Form I-864 Affidavit of Support – Insufficient Income

Many foreign nationals who are on H-1B visa and have their spouses on H-4 visa often face the issue of insufficient income for Form I-864, Affidavit of Support purposes when filing for adjustment of status.  Most of the time, especially in the labor green card context, the person filing the Affidavit of Support (the “sponsor”) is the same person as the applicant immigrant.  However, it is possible that the sponsor is a person other than the applicant immigrant.  We review the options of a sponsor who applies for a green card or adjustment of status for his- or herself and who wishes to have his spouse obtain a derivative green card and employment authorization.

Unfortunately, the USCIS does not consider the future income which will start coming from the non-working spouse as soon as the spouse receives a derivative employment authorization document (EAD) and starts working.  USCIS states clearly that if the sponsor’s income is not sufficient to meet the requirement for the household size, then the applicant immigrant will not be eligible for immigrant visa or adjustment of status.

Thus the options for meeting the income requirement are as follows:

  •  Include income from relatives or dependents living in the sponsor’s household or dependents listed in the sponsor’s most recent Federal tax return.  Such relatives and dependents must sign form I-864A.
  • Include income from the applicant immigrant, if that income will continue coming from the same source.  In the case of H-1B/H-4 couple, this would not be applicable because the H-4 spouse is not eligible to work.
  • Include the value of assets of the sponsor or any household member who is willing to sign I-864A Form.
  • Include a joint sponsor whose income and/or assets equal at least125 percent of the Federal Poverty Guidelines.

The goal of the I-864 Form is not to eliminate low-income immigrants but to ensure that such immigrants, once admitted to the U.S., do not become a burden to the social services system.  The options outlined above provide, in our opinion, sufficient opportunities for applicants to satisfy the income requirement.  Finally, the USCIS scrutinizes I-864 Forms for insufficient income and any false information may be cause for denial of benefits.

No comments