The I-864 affidavit of support is a requirement for all applicants for family-based immigrant visas, except those filing "self-petitions" either as widows or widowers of U.S. citizens or as abused immigrants filing self-petitions under the Violence Against Women Act (VAWA).  The I-864 is also required for applicants for employment-based immigrant visas where a relative of the immigrant owns five percent or more of the petitioning employer.  The guidance notes that Form I-864 is not required of certain other immigrants, including diversity immigrants (immigrating through the visa lottery), special immigrants (such as juveniles who have been declared dependent on a state), refugees and asylees adjusting to permanent resident status, and applicants for registry (based on having resided in the U.S. since Jan. 1, 1972).

The guidance states that the I-864 becomes enforceable at the time that the immigrant becomes a lawful permanent resident.  Thus, the determination of whether the sponsor meets the law’s requirements must be made at the time the case is adjudicated and not when the I-864 is filed.  Recognizing that usually there is a long delay between the filing of an adjustment application and its adjudication, the guidance authorizes local INS offices to decide when it is more appropriate to require the applicant to file the I-864: either with the adjustment application or at the time of the adjustment interview.   Where local offices request the I-864 at the time the adjustment application is filed, they may accept a signed affidavit that does not meet the statute’s requirements, in which case the applicant must submit additional or updated documentation at the interview.

According to the guidance, the question on the I-864 regarding the use of means-tested benefits by a sponsor or a member of the household in the past three years ensures that such benefits are not counted as income on the form.  Sponsors should not be disqualified for responding that they have used means-tested benefits.  The guidance states that sponsors may count earned benefits as income, including those derived from Social Security retirement, Unemployment Compensation, and Workers’ Compensation.  Notably, the U.S. State Dept. does not allow the latter two benefits to be counted as income.

The guidance also clarifies that U.S. citizen children of a sponsored immigrant should not be listed in Part 3 of the I-864 because the affidavit does not obligate a sponsor to support them.  Such children should be included in the household size only if they actually reside in the sponsor’s or joint sponsor’s household.

A sponsor’s spouse may choose to complete Form I-864A (Contract Between Sponsor and Household Member) if he or she qualifies as a household member and wishes to have his or her income counted towards meeting the 125 percent-of-poverty requirement.   However, since the spouse is not required to complete this form, the sponsor may be limited to using his or her own income and assets in meeting this requirement.  Where a sponsor’s spouse qualifies as a household member and is the sponsored immigrant, he or she should not complete Form I-864A.  However, if the spouse is the sponsored immigrant but there are also immigrant children of the spouse listed on the affidavit of support, the spouse must complete the I-864A.

The guidance states that a sponsored immigrant’s income may be used toward meeting the sponsor’s income requirement if the immigrant has been living in the sponsor’s residence for at least six months prior to the adjustment interview.   The sponsored immigrant should not complete Form I-864A in this case because it is presumed that he or she will support him or herself.  However, if there is a spouse and/or child immigrating with the sponsored immigrant, the sponsored immigrant must complete Form I-864A in order to have his or her income counted.

A sponsored immigrant’s assets may be counted if a sponsor’s income and assets are insufficient by themselves.  In this case, the net value of the immigrant’s assets are added to those of the sponsor.  The immigrant does not need to complete form I-864A to have the assets counted.

The guidance notes that petitioning sponsors and joint sponsors must submit copies of their three most recent federal tax returns and all W-2 and 1099 forms.  After April 15 in a given year, the sponsor is expected to have filed a return for the previous year, unless the sponsor provides proof that he or she filed for an extension.  INS officers are directed to encourage applicants to use Internal Revenue Service transcripts of tax returns rather than photocopies of the returns themselves.  These may be obtained by sending IRS Form 4506 to the IRS.

Letters from all current employers should be submitted with the I-864.  The letters should show the dates of employment, nature of the job, the wages or salary earned, the number of hours or weeks worked, and prospects for future employment and advancement.  Copies of pay stubs or statements for the previous six months should also be submitted; a single pay stub showing cumulative pay over at least the past six months can be sufficient.

Household members who sign Form I-864A to help a sponsor meet the income requirement must also provide complete documentation, including the three most recent federal tax returns or transcripts, job letters, pay stubs, and documentation of assets if needed.

The guidance states that the federal poverty income guidelines are published in the Federal Register in February or March of each year and become effective for INS purposes on the first day of the first full month following their release (see "2000 Federal Poverty Guidelines Issued," p. 15).  The sponsor’s income requirements are determined by the poverty guidelines in effect at the time of the adjustment application’s adjudication.

If the INS determines at the interview that the petitioner does not qualify as a sponsor, the visa applicant must find someone to be a joint sponsor with the petitioner.   In this case, the petitioner still must have submitted a signed I-864 and all accompanying documentation.  If the petitioner qualifies to be a sponsor, there can be no joint sponsor and any additional I-864s must be removed from the file "so there is no confusion about who is legally responsible for the immigrant and any deeming or enforcement actions."

If the interview takes place more than one year after the sponsor signed the affidavit of support, the officer may request updated documentation to establish that the sponsor currently meets income requirements.  A new affidavit of support is not required.   Also, it is not necessary to require tax returns for the entire period subsequent to the three returns originally submitted; a copy or transcript of the most recent federal return and proof of current employment and assets, if needed, "should usually be sufficient."