What To Do If Sponsor’s Income Is Insufficient

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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.

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)