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Adjudicator’s Field Manual

NOTE: The USCIS Policy Manual is our centralized online repository for immigration policies. We

are working quickly to update and move material from the Adjudicator’s Field Manual to the Policy

Manual. Please check that resource, along with our Policy Memoranda

page, to verify information

you find in the Adjudicator’s Field Manual. If you have questions or concerns about any

discrepancies among these resources, please contact [email protected].gov.

Chapter 20 Immigrants in General.

20.1 Numerical Limitations and the Visa Bulletin, has been superseded by USCIS Policy Manual: Volume

7: Adjustment of Status as of February 25, 2016.

20.2 Petition Validity has been partially superseded by USCIS Policy Manual, Volume 7: Adjustment of

Status as of November 17, 2020.

20.3 Petition Revocation

20.4 Petition Withdrawal

20.5 Enforceable Affidavits of Support has been partially superseded by USCIS Policy Manual, Volume 8:

Admissibility as of December 23, 2022.

20.1, Numerical Limitations and the Visa Bulletin, has been superseded by USCIS Policy

Manual: Volume 7: Adjustment of Status as of February 25, 2016.

20.2 Petition Validity.

(a) General .

Immigrant visa petitions are valid indefinitely until they are used as a vehicle for immigration or

adjustment of status or until they are revoked. In specific cases, an approved petition may be “converted” to

another classification. For detailed information on such cases, confer with applicable regulations in 8 CFR

204. In any instance where there is a significant lapse of time since the petition was approved, the

adjudicator considering an application for adjustment (or a consular officer handling the immigrant visa

case) should take appropriate steps to ensure the relationship, job offer, etc. on which the original approval

was premised continues to exist. Occasionally, USCIS will receive such a petition back from a consular

office with a request for follow-up action to reaffirm the facts of the petition. Such cases should be handled

routinely, verifying the facts in the same manner as if a new petition were being considered.

(b) Approval of a Subsequent Petition .

At times, a petitioner may resubmit a petition seeking the same benefit as the prior petition, although the

earlier petition may remain valid. If such a petition is approvable, the remarks block of the petition should

be noted to reflect the filing and approval dates of the first petition. The original priority date is assigned to

the new petition.

Adjustment of Status as of November 17, 2020.

(d) Form I-140 Petition Must be Approved Prior to a Favorable Determination of a §106(c)

AC21 portability request has been superseded by USCIS Policy Manual, Volume 7: Adjustment of Status as

of November 17, 2020.

(e) Determining Whether a New Job is in "the Same or a Similar Occupational Classification" for Purposes

of Section 204(j) Job Portability has been superseded by USCIS Policy Manual, Volume 7: Adjustment of

Status as of November 17, 2020.

20.3 Petition Revocation.

(a) Automatic Revocation .

Grounds for automatic revocation are set forth in 8 CFR 205.1.

(1) Family-Based Petitions .

A relative petition may be automatically revoked if the petitioner withdraws the petition, if the petitioner or

beneficiary dies, upon legal termination of the marriage upon which the petition was based, upon the

marriage of a second preference unmarried son or daughter, or upon the termination of status of a lawful

permanent resident petitioner (unless he or she becomes a U.S. citizen). There are other provisions for

revocation which allow for automatic conversion to a different classification. In the ca se of the death of the

petitioner, USCIS may choose not to revoke the petition for humanitarian reasons. [NOTE: Opting not to

revoke a petition is a matter strictly within the discretion of USCIS . There is no application which can be

filed to seek “non-revocation,” and no formal decision issued by USCIS (although a letter from an

interested party setting forth the facts of the case and a reply from USCIS advising that we have or have not

exercised our option not to revoke would not be inappropriate), and no right of appeal from a conclusion

not to exercise our option.]

(2) Employment-Based Petitions .

An employment-based petition may be automatically revoked if the labor certification is invalidated, if the

petitioner or beneficiary dies, if the petitioner withdraws the petition, or if the petitioner goes out of

business.

The Department of State may also terminate the registration of any alien who does not apply for an

immigrant visa within one year of being notified of the availability of the visa. This provision is found in

Section 203(g) of the Act.

If a Consular officer obtains information that a petition has been automatically revoked or if registration has

been terminated under 203(g), the petition will be returned to USCIS . You must send a notice to the

petitioner that the petition has been automatically revoked or terminated.

If USCIS receives the information, you must request that the Department of State return the petition before

sending out the notice to the petitioner. If the petition is at the National Visa Center (NVC) or at certain

consuls, the request may be made by telephone; otherwise, a cable is usually the best option.

(b) Revocation on Notice .

(1) Notice of Intention to Revoke .

The first step of revocation is to retrieve the petition from the consular or USCIS office where it is located.

Retrieval of the petition from a consular office may be accomplished by sending a cable to the consular

office requesting that the petition be returned for possible revocation. If the petition is still at NVC, the

request may be made by telephone.

After the petition has been retrieved, you must notify the petitioner of your intent to revoke the petition.

The letter should fully explain the reasons for the revocation and give the petitioner a reasonable period of

time (usually 30 days) to submit evidence in opposition to the revocation. Additional time may be granted

if the petitioner needs it to obtain documentation from abroad or other meritorious reasons. An A-file

should be created to house the petition while waiting for the response.

In some cases the action to revoke the petition may be initiated by the consular office due to information

acquired during their review of the petition or during an interview with the beneficiary. In that case the

petition should be returned by the consular office with a memo explaining the reasons they believe the

petition should be revoked. You may find that the petition is not revocable for the reasons stated by the

consular office. If that occurs, the petition must be returned to the consular office with an explanation of

your decision not to revoke the petition.

In cases where an I-140 immigrant petition has been approved and an I-485 has been pending for 180 days

or more, and the beneficiary has submitted a proper porting request that has been reviewed and favorably

adjudicated prior to the issuance of a notice of intent to revoke (NOIR) or notice of revocation (NOR),

USCIS must also provide the beneficiary with a NOIR and/or a NOR.

(2) Final Decision .

If the petitioner responds and satisfies you that the approval should not be revoked, advise the petitioner of

your decision to reaffirm the petition by letter. If the petition was retrieved from a consular office, return

the petition to the consular office with copies of your letter of intent to revoke, the petitioner's response,

and your letter of reaffirmation.

If the petitioner does not overcome the basis for the revocation, or fails to respond timely, prepare a

decision of revocation. A petitioner may file an appeal on a decision to revoke a petition just as if the

petition had been denied originally, except that the authorized period for filing the appeal is only 15 days

regardless of the type of petition. A petitioner may also file a motion to reopen or reconsider the decision

revoking the decision. As required in Chapter 10.7(b)(5) of this manual, the revocation decision must

include information about appeal rights and the opportunity to file a motion to reopen or reconsider.

Do not institute revocation proceedings if the beneficiary has already been adjusted or has been admitted to

the United States with an immigrant visa. When the petition has been used, in effect, it no longer exists and

the approval cannot be revoked. The appropriate course of action in that case is to institute deportation or

rescission proceedings.

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20.4 Petition Withdrawal.

A petitioner or applicant may withdraw a petition or application prior to adjudication. Withdrawal is a

voluntary action. It should not be coerced, although it may be suggested as an alternative to a formal denial.

Whenever a withdrawal is received, it should be acknowledged, in writing, for the record. Although a

withdrawal by a petitioner is not necessarily an indication of fraud, the facts surrounding any prior

withdrawal should be considered in the event a subsequent petition is filed by the same pe titioner.

See Matter of Isber 20 I&N Dec 676 (BIA 1993)

A petition which has been withdrawn cannot be denied. See Matter of Cintron , 16 I&N Dec 9 (BIA 1976).

Where a visa petition has once been withdrawn based on an admission by a party that the marriage was

solely entered into to bestow an immigration benefit, any subsequently filed visa petition involving the

same petitioner and beneficiary must include at the time of filing: (1) an explanation of the prior

withdrawal and (2) evidence supporting the bona fides of the parties' relationship. The BIA has held that

“[t]he petitioner bears a heavy burden to establish the bona fides of the marital relationship in the case of a

prior visa petition withdrawal and an admission of a fraudulent marriage, and, absent the submission of the

previously related materials at the time of filing, a district director can reasonably deny the petitioner based

on the admission made in conjunction with the prior withdrawal” [emphasis added]. See Matter of Laureano ,

19 I&N Dec. 1 (BIA 1983).

20.5 Enforceable Affidavits of Support. [Revised as of 06/27/2006]

(a) Background .

Section 213A of the Act and 8 CFR 213a require most family-based and certain employment-based

intending immigrants who, on or after December 19, 1997, seek to enter the United States as immigrants

or who apply for adjustment of status to establish that they are not inadmissible under section 212(a)(4) of

the Act by having a sponsor sign a legally enforceable Affidavit of Support on behalf of the affected

intending immigrant(s).

The Affidavit is submitted on Form I-864, or, for those sponsors who are eligible to use it, on Form I-

864EZ. The new Form I-864, Form I-864A, and Form I-864EZ, and I-864W are all dated January 15,

2006. The Forms are available at www.uscis.gov . To help ensure an orderly transition from the old Form

I-864 and I-864A to the new forms, USCIS should continue to accept old versions of Form I-864 and Form

I-864A until October 19, 2006, a grace period of 90 days from the effective date of the final rule.

Unless otherwise noted, references to Form I-864, Affidavit of Support, include Form I-864EZ, a short

form Affidavit of Support to be used by certain petitioning sponsors who rely only upon their own

employment to meet the affidavit of support requirements. Regulations governing the use of Form I-864

are located in 8 CFR 213a.

(b) Persons Required to Have Sponsorship .

Chapter 20.5(b), Persons Required to Have Sponsorship, has been superseded by USCIS Policy Manual,

Volume 8: Admissibility, Part G, Public Charge Ground of Inadmissibility as of December 23, 2022.

Chapter 20.5(c), Applicants Exempt from Sponsorship, has been superseded by USCIS Policy Manual,

Volume 8: Admissibility as of December 23, 2022.

(d) Sponsor Requirements .

(1) General .

A sponsor who completes Form I-864 must be all of the following:

· The petitioning relative or the relative who has a significant ownership interest in the petitioning

entity;

· An individual (a sponsor cannot be a corporation, organization, or other entity);

· A citizen of the United States or a permanent resident (including conditional residents);

· At least 18 years of age;

· Domiciled in the United States, the District of Columbia, or any territory or possession of the United

States (see section (d)(2) below).

· Able to demonstrate the means to maintain an income of at least 125% of the Federal Poverty

Guidelines for the sponsor’s household size, including the immigrants being sponsored or previously

sponsored. A sponsor on active duty in the U.S. Armed Forces, other than active duty for training, who is

petitioning for a spouse or child must only demonstrate the means to maintain an income equal to at least

100% of the Federal Poverty Guidelines. Assets of the sponsor, the intending immigrant, or both may be

used to demonstrate this requirement.

Note

A non-citizen U.S. national may sign a Form I-864 only as a joint sponsor.

(2) Domicile .

Domicile means the place where a sponsor has his or her principal residence, as defined in

section 101(a)(33) of the Act, with the intention to maintain that residence for the foreseeable future. A

United States citizen living abroad whose employment meets the requirements of section 319(b)(1) of the

Act is considered to be domiciled in the United States. For purposes of the ability to sign a Form I-864, an

LPR living abroad is considered to have a domicile in the United States during a temporary period of

residence abroad if he/she has obtained preservation of residence benefits under 316(b) or 317 of the Act.

There may be other situations in which a U.S. citizen or LPR can establish that his or her domicile is still in

the United States, despite the fact that the citizen or LPR is currently living outside the United States. Critical

issue: proof that the residence abroad is intended to be only temporary and that sponsor, during the

temporary absence, has maintained an intent to keep his or her domicile in the United States, despite the

temporary sojourn abroad.

If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so

long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by

a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before

the date of the principal intending immigrant’s admission or adjustment of status. The intending immigrant

will be inadmissible under section 212(a)(4) of the Act, and the intending immigrant’s application for

admission or adjustment of status must be denied, if the sponsor has not, in fact, established a domicile in

the United States on or before the date of the decision on the principal application for admission at a U.S.

port of entry on an immigrant visa or adjustment of status.

In the case of a sponsor who comes to the United States intending to establish his or her principal residence

in the United States at the same time as the principal intending immigrant’s arrival and application for

admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United

States for purposes of this paragraph. If, however, the sponsor is an LPR, and the sponsor’s own application

for admission is denied, so that the sponsor leaves the United States either under a removal order or as a

result of the sponsor’s withdrawal of the sponsor’s application for admission, the sponsor will not be

deemed to have established a domicile in the United States. Thus, the Form I-864 will not be valid and the

sponsored immigrant will be inadmissible on public charge grounds.

(3) Use of Spouse’s Income.

A sponsor’s spouse who qualifies as a household member and wishes to have his or her income included as

a household member generally needs to complete a Form I-864A. However, if the spouse is not willing to

let the sponsor rely on the spouse’s income, that is acceptable. In this situation, the sponsor needs to show

his or her own income and which portion of any assets used to qualify can be attributed to him or her.

In some situations, the sponsor’s spouse qualifies as a household member and is also the intending

immigrant being sponsored. Since a sponsored immigrant cannot agree to support himself or herself, he or

she should not complete a Form I-864A. If children are also listed on the Affidavit of Support, and the

sponsor intends to rely on the spouse’s income to show the ability to support these accompanying family

members, then the spouse must complete Form I-864A in order for the sponsor to be able to rely on th e

spouse’s income.

(4) Use of Intending Immigrant’s Income .

If the sponsor does not meet the income requirement on the basis of his or her own income and/or assets,

the sponsor may also count the intending immigrant’s income if (1)(a) the intending immigrant is either

the sponsor’s spouse or (b) has the same principal residence as the sponsor, and (2) the preponderance of

the evidence shows that the intending immigrant’s income results from the intending immigrant’s lawful

employment in the United States or from some other lawful source that will continue to be avai lable to the

intending immigrant after he or she acquires permanent resident status. The prospect of employment in the

United States that has not yet actually begun does not count toward meeting this requirement.

Note

The revised definition of “household income” retains the requirement that, unless the intending

immigrant is the sponsor’s spouse, the intending immigrant must have the same principal residence as

the sponsor in order for the sponsor to rely on the sponsored immigrant’s income. It is no longer

required, however, that the intending immigrant must have had the same principal residence as the

sponsor for at least 6 months.

Note

The interim rule did not directly address the ability of a sponsor to rely on an intending immigrant’s

income from unauthorized employment in meeting the Poverty Guidelines threshold for the sponsor’s

household income. In response to a specific comment relating to the issue of the sponsor’s reliance on

an intending immigrant’s income, the revised definition of “household income” now makes it clear that

income from an intending immigrant’s unauthorized employment may not be considered in

determining whether the sponsor’s anticipated household income meets the applicable Poverty

Guidelines threshold. The basis for this clarification is the clear public policy, as stated in

sections 245(c)(2) and 274A of the Act, 8 USC 1255(c)(2) and 1324a, against unauthorized

employment. Unauthorized employment, admittedly, is not always a bar to adjustment of status.

Nevertheless, sections 212(a)(4)(C) and 213A of the Act clearly assume that it is primarily the sponsor

himself or herself who must meet the income threshold for the Form I-864. This principle is gravely

undermined by permitting the sponsor to rely on the intending immigrant’s income, if it is derived

from unlawful employment.

If there is an accompanying spouse and/or child listed on the Affidavit of Support, then the sponsored

intending immigrant must also complete a Form I-864A. If, however, the sponsored intending immigrant

is the only person included on the Affidavit of Support, then he or she does not need to complete a Form I-

864A.

(5) Use of Intending Immigrant’s Assets .

If the sponsor does not meet the income requirement using his or her own income and/or assets, the

sponsor may include the net value (the total value of the assets less any offsetting liabilities) of the

intending immigrant’s assets. The instructions to Part 6 of Form I-864 indicate that the intending

immigrant does not need to complete Form I-864A if he or she is using his or her assets to qualify even if

he or she has an accompanying spouse and/or children. Instead, the intending immigrant only needs to p

rovide documentation showing the net value of all assets.

The required total net value of assets depends upon the basis upon which the sponsored alien intends to

immigrate. For more information, see section (j)(7)(B) below.

(6) Substitute Sponsorship .

(A) For the primary intending immigrant, and accompanying family members .

If the visa petitioner dies before USCIS approves the visa petition, the statute does not permit anyone else to

file the Form I-864.

If the visa petitioner dies after USCIS approves the visa petition, however, P.L. 107-150 provides discretion

to permit the beneficiary to immigrate.

Under this provision, it is appropriate for USCIS to reinstate approval of the visa petition if the request to

reinstate approval is supported by a properly completed Form I-864 signed by an eligible substitute

sponsor (and by a joint sponsor, if necessary). The substitute sponsor must be the sponsored alien’s:

spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-

in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian. For more

information regarding P.L. 107-150, see section 21.2(g)(1)(C) of this Field Manual.

Note that the final Affidavit of Support rule includes a special accommodation for the spouse of a citizen, if

the citizen spouse has died. If, at the time of the citizen spouse’s death, the alien spouse qualifies as a

surviving “widow(er)” under section 201(b)(2)(A)(i) of the Act, then 8 CFR 204.1(i)(1)(iv) “converts”

the citizen spouse’s Form I-130 so that it will be deemed to be a widow(er)’s Form I-360. If the Form I-

130 was approved before the citizen spouse died, it will be deemed to be an approved Form I-360. If it was

still pending, it can be approved as a Form I-360. In either case, the alien spouse will no longer need to

have a Form I-864, since he or she will be adjusting status as a widow(er).

If the citizen spouse and alien spouse had not been married for at least two years when the citizen spouse

died, then this “conversion” option is not available and the alien spouse remains subject to the Affidavit of

Support requirements. As with any other Form I-130, if USCIS approved the Form I-130 before the citizen

spouse’s death, USCIS has discretion to reinstate the approval if there is a qualified substitute sponsor.

(B) For a family member who is following to join the principal sponsored immigrant .

In those cases where the petitioner has died after the principal sponsored alien has obtained permanent

resident status but before a dependent following to join under section 203(d) of the Act has obtained

permanent resident status, another person may file a Form I-864 on behalf of the following-to-join

dependent, if that person meets all requirements and files a Form I-864 on behalf of the following-to-join

dependent.Under the interim rule (8 CFR 213.2(f)), this sponsor is not required to be someone who wo

uld qualify as a substitute sponsor. The sponsor could even be the principal sponsored alien, who, by the

time the following-to-join dependent immigrates, would be an alien lawfully admitted for permanent

residence.

(7) Joint Sponsor .

(A) Joint Sponsor Needed .

If the petitioner or substitute sponsor cannot demonstrate the ability to maintain an income of at least

125% (or 100% when applicable) of the Federal Poverty Guidelines, the intending immigrant may meet

the Affidavit of Support requirement by obtaining a joint sponsor who is willing to accept joint and several

liability with the principal sponsor as to the obligation to provide support to the sponsored alien and to

reimburse agencies who provide means-tested benefits to the sponsored alien during the perio d that the

Affidavit is enforceable. The joint sponsor must demonstrate income or assets that independently meet the

requirements to support the sponsored immigrant(s). It is not sufficient for the combination of incomes of

the primary sponsor, sponsored immigrant and joint sponsor to meet the threshold.

The regulations at 8 CFR 213a.2(c)(2)(iii)(C) allow, but do not require, two joint sponsors per family unit

intending to immigrate based upon the same family petition. No individual may have more than one joint

sponsor, but it is not necessary for all family members to have the same joint sponsor.

Each joint sponsor must execute a Form I-864 that is submitted in addition to the Form I-864 submitted by

the petitioner or substitute sponsor. A joint sponsor does not have to be related to the petitioning or

substitute sponsor, or the sponsored alien. However, a joint sponsor must otherwise meet the same

requirements as a petitioning or substitute sponsor.

The use of a joint sponsor does not eliminate the requirement that there be a signed Form I-864 from the

petitioner or substitute sponsor with his or her most recent Federal tax return (or proof that there was no

obligation to file). The petitioner or substitute sponsor, as well as the joint sponsor, has full financial

responsibility for immigrant(s) they sponsor.If two joint sponsors are used, each joint sponsor is

responsible for supporting only the intending immigrant(s) listed on that joint sponsor’s Fo rm I-864.

(B) Joint Sponsor Not Needed .

If the petitioning or substitute sponsor meets the income requirements based on his or her own income,

there can be no joint sponsor. If any additional Form I-864s from joint sponsors are included in the record,

they should be removed from the file and returned to the intending immigrant. It is very important to

remove all unneeded Form I-864s from the file so there is no confusion about who is legally responsible

for the immigrant and any deeming or enforcement actions.

(e) Sufficiency of Form I-864 .

(1) In general .

When determining the sufficiency of a Form I-864, USCIS shall first consider the sponsor’s anticipated

income for the year the sponsor signed Form I-864. Thus, during the initial evidence review, USCIS shall as

a general rule determine the sufficiency of a Form I-864 based on the sponsor’s reasonably anticipated

household income for the year in which the sponsor signed the Form I-864.

Important

If the income is at least 125% (or 100% as applicable) of the governing Poverty Guideline in the Form I-

864P, Poverty Guidelines, from the year in which the Form I-864 was filed, the Form I-864 is

sufficient.

Important

A n Affidavit of Support must be sufficient both at the time the adjustment of status application is filed

and at the time the adjustment application is adjudicated. USCIS has determined that an Affidavit of

Support is generally sufficient at the time of the adjudication if it was sufficient at the time it was filed

with the Form I-485 . That is, if the Form I-864 was sufficient when the sponsored immigrant filed the

Form I-864 with the adjustment application, USCIS will generally infer from that finding that the alien is

not inadmissible under section 212(a)(4) of the Act as of the date of adjudication. In particular, if the

sponsor’s Federal income tax return shows an income that was at least 125% (or 100% as applicable) of

the governing Poverty Guideline for the year the Form I-864 was filed with the sponsored immigrant’s

adjustment application, USCIS will generally infer that the sponsor’s income has remained and will

remain sufficient at the time of adjudication.

Therefore, if the Form I-864 was sufficient at the time it was filed with the Form I-485, USCIS should

not request any further documentation (e.g., more recent evidence of employment or income) unless

more than one year has elapsed since the Form I-864 was submitted and there is a specific reason (other

than the passage of time) to question whether the evidence of income is no longer reliable.

Recent practice has been for the Form I-864 to be vetted at the National Benefits Center as part of the

process of preparing the Form I-485 for adjudication. If the NBC vetting process indicates that the Form

I-864 was sufficient when reviewed, an adjudicator may generally rely on that determination, unless it is

determined, on the basis of specific reasons, that a request for evidence is appropriate, as outlined in

paragraph 20.5(e)(2).

(2) Requesting updated information . There are two limited, specific situations in which the general rule

stated in section 20.5(e)(1) will not apply:

· The first exception applies if both of the following criteria are met:

Ø The most recent income tax return, the anticipated household income listed for the year the sponsor

signed the Form I-864, and the evidence for the income for the year of filing all show an income that is

less than 125% (or 100% as applicable) of the governing Poverty Guideline for the year the Form I-864

was filed, and

Ø A joint sponsor has not filed a sufficient Form I-864.

· The second exception applies if at least one year has elapsed since the Form I-864 was submitted, and

the facts in the case, as supported by the evidence in the record, provide a specific reason (other than

simply the passage of time) to believe that the sponsor’s income is no longer sufficient.

If USCIS determines that either of these situations exists, USCIS should issue a request for evidence.

However, the request for evidence should only be for the current year’s income information, not for

additional evidence concerning the year in which the Form I-864 was filed. For example, if the Form I-864

was filed in 2004 with a tax return from 2003 and employment information for 2004, a request for

evidence issued after April 15 of any given year would request the tax return for the immediately precedin

g year (e.g., a 2005 return, if requested in 2006), and employment information for the current year. In

this situation, the sufficiency of the Form I-864 is determined based upon the additional evidence as it

relates to the applicable threshold set forth in the Form I-864P in effect when the USCIS issues the request

for evidence, rather than the Form I-864P that was in effect when the Form I-864 was signed. USCIS may

direct the Form I-485 applicant to submit the additional evidence either by mail or by appe aring for a

rescheduled interview.

IMPORTANT

USCIS may encounter a case in which the sponsor (i.e., a petitioning sponsor, substitute sponsor, or

joint sponsor) neglected to file evidence corroborating the sponsor’s claims about his or her

employment and anticipated income for the year in which the sponsor signed the Form I-864. Strictly

speaking, failure to submit this evidence would be a sufficient reason to issue a request for evidence and

to deny the Form I-485 if the requested evidence is not submitted. Before issuing a request for evidence,

howe ver, USCIS should consider whether other evidence in the record supports the conclusion that the

sponsor’s claims on the Form I-864 about the sponsor’s current employment and anticipated income are

true. Remember, the sponsor’s statements about his or her employment and anticipated income are

made under penalty of perjury. Thus, these statements on the Form I-864 are themselves evidence.

Other evidence in the record may already tend to corroborate those statements. For example, the

sponsor’s claims about his or her anticipated income for 2006 may well be consistent with the income

tax return for 2005. A request for additional evidence may be appropriate if the evidence of record

supports a specific reason (other than the passage of time) to believe the sponsor’s claims to be false. But

if the other evidence tends to support the conclusion that the sponsor’s claims are true, USCIS may

decide , as a matter of discretion, that a request for evidence is not necessary.

Note

For most Form I-485s filed before November 23, 2005, the sponsor should have filed the three most

recent income tax returns. USCIS may encounter a case in which the sponsor has included the most

recent income tax return but not one or both of the two earlier returns. Given the change of policy

reflected in the final rule, USCIS is no longer required to request the missing earlier return(s).

Note

USCIS may also decide that a request for evidence is not necessary in a case in which the sponsor filed a

photocopy, instead of a transcript, but forgot to submit Internal Revenue Service Forms W-2 or 1099. A

decision not to request additional evidence will be proper if USCIS concludes that the evidence of record,

taken as a whole, makes it reasonable to infer that the information on the tax return is true.

(3) No Local Policy Permitted Regarding When Form I-864 Shall be Filed .

In the past, USCIS permitted each local office to establish its own policy on whether to require submission

of Form I-864 at the time of filing for adjustment or at the time of the adjustment interview. Local offices

may no longer do so. Under a policy change that took effect November 23, 2005, USCIS requires all

applicants to submit Form

I-864 with their adjustment application. If the case was filed prior to November 23, 2005 at an office that

required submission at the time of the adjustment interview, USCIS should allow the applicant to submit

Form I-864 and the required supporting documentation at the interview.

(f) Sponsor Use of Benefits .

Question 4B of the September 26, 2000 version of the Form I-864 asks if the sponsor or any member of

his or her household has used means-tested benefits during the past 3 years. Do not disqualify a sponsor

based on a positive response to this question. The reason for this question is to ensure that the value of any

such means-tested public benefits is not considered as income on the Affidavit of Support. Federal means-

tested benefits currently include SSI (Supplemental Security income), TANF (Temporary Assi stance for

Needy Families), food stamps, Medicaid, and State Child Health Insurance Programs (SCHIP). State and

local means-tested benefits vary by jurisdiction. Earned benefits such as Social Security retirement,

Unemployment Compensation, and Workman’s Compensation may be included as income.

(g) U.S. Citizen Children .

Any U.S. citizen children of the intending immigrant should not be listed in part 3 of the Form I-864. The

Affidavit of Support places no obligation on a sponsor or joint sponsor to support any U.S. citizen children

of the sponsored immigrant. Such U.S. citizen children should only be included in household size if they

are actually resident in the sponsor’s or joint sponsor’s household or listed as dependents on the sponsor’s

most recent tax return.

(h) Withdrawal of an affidavit of support or Form I-864A .

A person who has signed a Form I-864, I-864EZ or I-864A may withdraw the Form. If the person does so,

USCIS will adjudicate the application for adjustment of status as if the withdrawn Form I-864, I-864A or I-

864EZ had never been filed. In an adjustment of status case, a withdrawal of the Form I-864, I-864EZ or I-

864A is not effective unless it is in writing and USCIS actually receives the withdrawal before the final

decision on the adjustment application. In an immigrant visa case, once a consular officer has issued an

immigrant visa, no Form I-864, I-864EZ or I-864A may be withdrawn unless the visa petitioner also

withdraws the visa petition.

(i) Documentation .

(1) Federal Tax Returns .

Each sponsor must submit either a transcript or a copy of his or her most recent US. Federal individual

income tax return (Form 1040, 1040A or 1040EZ), including all Schedules filed with the IRS. If the

sponsor submits a copy of the tax return, he or she must also include copies of any and all IRS Forms W-2

and 1099 that reflect income used to qualify. The second note under paragraph 20.5(e)(2) provides

guidance regarding what to do if a W-2 or 1099 is missing. Note, however, that it is not necessary to sub

mit the Forms W-2 or 1099 if a transcript, rather than a copy, of the tax return is submitted. State or

foreign income tax returns are not acceptable; if submitted, they must be returned to the intending

immigrant.

The sponsor must submit with the Form I-864 the sponsor’s U.S. Federal income tax return for the most

recent tax year (that is, the completed tax year immediately preceding the date the sponsor signs the Form

I-864). USCIS may generally expect a sponsor, after April 15 of any given year (or April 16 or 17, in a year

in which April 15 is on a Saturday or Sunday), to have completed his or her tax return for the previous

year. If the sponsor requested an extension, the sponsor should provide proof of filing fo r the extension. If

the sponsor did not file a tax return, the sponsor must prove that he or she was not required to file. If a

sponsor should have filed, the sponsor must file retroactively and provide proof of filing. Note that U.S.

citizens generally have an obligation to file a tax return on non-U.S. earnings even if there was no tax

liability.

Example 1

Sponsor signs the Form I-864 on March 1, 2006. The US Federal income tax return for 2005 is not due

until April 17, 2006. Therefore, the sponsor must submit his or her 2004 U.S. Federal income tax

return.

Example 2

Sponsor signs the Form I-864 on May 5, 2006. The sponsor must submit his or her 2005 U.S. Federal

income tax return.

Example 3

Sponsor signs the Form I-864 on May 5, 2006. However, the sponsor also filed with IRS a Form 4868,

obtaining an extension of the 2005 income tax filing deadline. The sponsor must submit his or her 2004

U.S. Federal income tax return.

Note

Typical proof that a sponsor was not required to file a tax return for a particular year would consist of a

written statement from the sponsor, signed under penalty of perjury, attesting to the amount of his or

her income for the relevant year and to the fact that a tax return was not required by law. USCIS

adjudicators handling Form I-864 issues should be aware of the income threshold for the requirement of

filing a tax return for the last several years, so that an RFE for evidence of the law is not necess ary. In

particular, the Instruction booklets for each year’s Forms 1040, 1040A, and 1040EZ specify the income

threshold below which a person is not required to file a return.

Note

IRS permits and encourages electronic filing of Forms 1040, 1040A and 1040EZ. An electronically filed

tax return may also be signed electronically. When a person signs and files the tax return electronically, a

“hard copy” of the original tax return will not exist. In this situation, it is acceptable for the person to

submit a plain copy printout, showing the tax return as it would have looked, had it been filed on paper,

together with the IRS-issued “declaration control number.” By signing the Form I-864 o r I-864A

“under penalty of perjury,” the person certifies that the copy is a copy of what was submitted to IRS. As

with paper-filed returns, it is also acceptable for the person to submit an IRS transcript of the

electronically filed return.

A sponsor may submit an IRS-issued transcript instead of a photocopy of the sponsor’s tax return. A

sponsor may obtain a transcript by filing IRS Form 4506-T with the IRS. Currently, the IRS does not charge

a fee for transcripts. Tax transcripts provide proof that the returns were filed with IRS, are easier to read,

take up less room in the file, and are easily obtained. If a sponsor submits a transcript rather than a

photocopy of the tax return, it is not necessary for the sponsor to include copies of any Forms W-2 or

1099.

(2) Job Letters and Proof of Income .

Pay stub(s) showing income for the most recent 6 months and letters from all current employers are no

longer required as initial evidence. The applicant, however, may submit either or both of these items (1) in

response to a request for additional evidence (RFE), or (2) with a Form I-864 if the applicant believes

doing so would help establish that the sponsor meets the governing income/assets threshold. If submitted,

letters from current employers should show dates of employment, the nature of the job, wage s or salary

earned, number of hours/weeks worked, and prospects for future employment and advancement. It should

be sufficient for the employer to say that the employment is of indefinite duration or words of similar

effect. Promises of future employment are not required.

(3) Household Members .

The sponsor may use the income of any member of his or her own household who is at least 18 years old

to help meet the household income requirement. The sponsor and household member must complete

Form I-864A, which must include a copy or transcript of the household member’s most recent tax return

and sufficient documentation of all income and assets he or she lists on the Form I-864A. USCIS shall use

the same standards for documentary evidence of income and assets listed on a Form I-864A as are used for

doc umentary evidence of income and assets listed on Form I-864.

(j) Use of Poverty Guidelines .

HHS publishes new Poverty Guidelines in the Federal Register each year. These guidelines become effective

for USCIS purposes on the first day of the second full month following their release. For example, in 2006,

new Poverty Guidelines were published in the Federal Register on January 22 and therefore became

effective for USCIS purposes on March 1, 2006. To assist sponsors and intending immigrants, USCIS

publishes the governing guideline for the location and size of each household on Form I-864P, Poverty G

uidelines. The Poverty Guidelines for each year remain in effect during the next year until the effective date

of the new guidelines.

Note

If, as specified in paragraph 20.5(e)(2) of this chapter, it is necessary to request additional evidence, the

sufficiency of the Form I-864 is determined according to the Poverty Guidelines in effect when the

request for evidence is made. Therefore, a copy of the current Form I-864P should be included in the

record of proceeding and sent with the request for evidence.

Note

The correct Form I-864P should already be included in the record, since 8 CFR 213a.2(a)(1)(ii) requires

the Form I-485 or immigrant applicant to include the current Form I-864P when the applicant submits

the application. If the Form I-864P is missing, that fact alone would not warrant a request for evidence,

since the USCIS office should maintain past versions of the Form I-864P. When copying a Form I-864P

for addition to the record, please be sure to copy the Form I-864P that was in effect when the Form I-

485 was filed, rather than any later version.

(k) USCIS Review .

The following items must be considered by USCIS when reviewing a Form I-864 or Form I-864EZ:

(1) Part 1: Verify That Sponsor Has Checked the Correct Box(es) .

If Form I-864EZ is being used, then “Yes” must be checked on boxes a, b, and c. If Form I-864 is being

used and box “d” has been checked indicating a single joint sponsor, USCIS should ensure that there are

two Form I-864s: one from the petitioner and one from the joint sponsor. If Form I-864 is being used and

box “e” has been checked indicating two joint sponsors, USCIS should ensure that there are three Form I-

864s: one from the petitioner, one from the first joint sponsor, and one from the second joint s ponsor.

(2) Parts 2-4 of Form I-864 or Parts 2-3 of Form I-864EZ: Verify These Have Been Completed Correctly .

Compare the information provided with information from other documents included in the application

and/or verifying data with the sponsored immigrant at the time of the interview.

If the sponsor is using Form I-864, only “accompanying” family members should be listed in the chart in

Part 3. Be sure that the first and last name of each accompanying family member is listed. Family members

“following to join” (i.e., intending to immigrate more than 6 months after principal intending immigrant)

should not be listed in Part 3.

(3) Part 5 of Form I-864 or Part 4 of Form I-864EZ: Sponsor’s Household Size .

The sponsor’s total household size is used to determine the correct Federal Poverty Guideline. For purposes

of Form I-864, a household size includes the total of the following groups of individuals:

· Sponsor;

· Person(s) the sponsor is sponsoring on the Affidavit of Support (will always be one if the sponsor is

using Form I-864EZ instead of Form I-864);

· Sponsor’s spouse, if the sponsor is married;

· All of the sponsor’s children, as defined in section 101(b)(1) of the Act, except those that have (1)

reached the age of majority (i.e., are at least 18 years old) or are emancipated under the law of the person’s

domicile, and (2) are not claimed as dependents on the sponsor’s most recent Federal income tax return;

· Other persons lawfully claimed as dependents on the sponsor’s tax return for the most recent tax

year;and

· The number of siblings, parents, and/or adult children who (1) have the same principal residence as

the sponsor, and (2) have combined their income with the sponsor’s income by submitting Form I-864A.

Note

When calculating household size, do not count any person more than once.

(4) Part 6 of Form I-864 or Part 5 of Form I-864EZ: Sponsor’s Income and Employment

(A) General Rule and Active Duty Military Exception.

Either the petitioning sponsor, substitute sponsor, or a joint sponsor must generally demonstrate the ability

to maintain his or her annual household income at 125% of the governing Federal Poverty Guideline

threshold.

A petitioner on active duty in the U.S. Armed Forces, other than for training, only needs to demonstrate the

means to maintain an annual income equal to at least 100% of the Federal Poverty Guidelines if he or she is

petitioning for a spouse or child.

Note that a substitute sponsor or joint sponsor is not eligible to claim the 100% income level based on the

petitioner’s relationship to the intending immigrant, or the petitioner’s military status. A substitute sponsor

or joint sponsor may claim the 100% income level only if the substitute sponsor or joint sponsor, himself

or herself, is on active duty in the U.S. Armed Forces (other than for training) and the intending immigrant

is the spouse or child of the substitute sponsor or joint sponsor.

To qualify for this exception, the petitioner must have provided evidence that he or she is on active duty,

such as a military dependent’s identification card for the sponsored intending immigrant (the spouse or

child), or a photocopy of the military identification card of the sponsor (the spouse or parent).

Regardless of whether a sponsor qualifies for the military exception, all of his or her income counts toward

the 125% (or 100%) income requirement, including (in the case of Armed Forces personnel) any

allotments received for the dependents.

(B) Poverty Guidelines.

Form I-864P, Poverty Guidelines, provides the Federal Poverty Guidelines calculated at both the 100% level

and 125% level for the 48 contiguous states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands

and Guam. Separate guidelines are published for Alaska and Hawaii.

The Form I-864P guidelines are based on household sizes of 2 to 8. A dollar amount is provided to add for

each additional household member or dependent. To determine the requirement for a household size of

10, USCIS should take the poverty line for a household size of 8 and add the additional dollar amount

multiplied by 2.

Form I-864P is based upon the Federal Poverty Guidelines that the Department of Health and Human

Services (HHS) publishes annually in the Federal Register (usually in February or March). (See “Federal

the Federal Poverty Guidelines, USCIS annually updates Form I-864P, Poverty Guidelines. USCIS begins to

apply the updated Form I-864P guidelines to adjustment of status applications received on the first day o f

the second month after the HHS guidelines are published.

If the sponsor is using Form I-864EZ, he or she must only use his or her salary or pension as shown on his

or her most recent Federal income tax return. If the sponsor provides a photocopy of the return, the

sponsor must include a copy of any Form(s) W-2 provided by the sponsor’s employer(s) to prove income

from employment and/or Form(s) 1099 to show pension income; if a W-2 or 1099 is missing, follow the

guidance in the second note under paragraph 20.5(e)(2). As with other sponsors, these copies are not ne

eded if the sponsor provides an IRS transcript of the return. (See Part 1(a) of Form I-864EZ.) If sponsor

relies on other types of income, the sponsor must use Form I-864. The sponsor must also use Form I-864,

rather than Form I-864EZ, if the sponsor will be submitting any Forms I-864A.

Regardless of the form the sponsor uses, he or she must provide evidence of any income (and/or assets in

the case of Form I-864) used to demonstrate the means to maintain the sponsored immigrant.

Sponsors who use Form I-864 may qualify based only upon their own income and/or assets if either or

both are sufficient to reach the income requirement. If, however, the sponsor’s combined income and

assets are not sufficient to meet the governing threshold, the sponsor may include the income and/or assets

of another household member if the household member:

· Is at least 18 years old;

· Is included in the calculation of household size;

· Has the same principal residence as the sponsor (or is the sponsor’s spouse); and

· Has completed and signed a Form I-864A.

USCIS should ensure that each Form I-864A is completed and signed by the sponsor and the household

member.

As noted above, the intending immigrant does not need to sign a Form I-864A if he or she is immigrating

alone (that is, has no accompanying dependents). In this situation, the intending immigrant should be

listed on line 24(e) and should be the only person listed in 24(b), with his or her income listed on that

line and value of assets listed on the appropriate line(s) in item 28.

(D) Federal Tax Return(s).

No matter whether a sponsor submits Form I-864 or I-864EZ, the sponsor must provide a copy or an IRS-

generated transcript of the sponsor’s Federal income tax return for the sponsor’s most recent tax year. Each

Federal tax return must include all the supplements and attachments that were sent to the IRS with the tax

return. For purposes of demonstrating means to maintain income, the determining income amount is the

income, before deductions, on the sponsor’s income tax return. In other words, income means an

individual's total income (adjusted gross income for those who file IRS Form 1040EZ) for purposes of the

individual's U.S. Federal income tax liability, including a joint income tax return (e.g., line 22 on the 2005

IRS Form 1040, line 15 on the 2005 IRS Form 1040-A, or line 4 on the 2005 IRS Form 1040EZ or the

corresponding line on any future revision of these IRS Forms).

Note that, by signing the Form I-864 or Form I-864EZ under penalty of perjury, a sponsor certifies that the

transcript or photocopy is true and correct. This certification meets the statutory requirement of presenting

a “certified” copy of the transcript of photocopy. Certification of the returns by the IRS is not necessary; the

sponsor’s certification under penalty of perjury is sufficient.

If a sponsor filed a joint tax return with a spouse, but is qualifying using only his/her own individual

income, the sponsor must submit evidence of that individual income. This evidence would include, for

example, the sponsor’s own W-2(s), Wage and Tax Statement, and if necessary to reach the income

requirement, evidence of other income reported to IRS which can be attributed to him/her, usually on

Forms 1099.

(E) Other Evidence of Income.

For purposes of demonstrating means to maintain income, the total income, before deductions, in the

sponsor’s tax return for the most recent taxable year will be generally determinative. There is no

requirement to determine whether the sponsor would have met 125% (or 100%) of the governing Poverty

Guideline before the most recent tax year. Income tax information from these years should only be used to

take the earning trend into consideration when assessing current and future earning capability.

USCIS, however, may consider other evidence of income (e.g., pay stub(s), employer letter(s), or both), if

(1) the sponsor establishes that he/she was not legally obligated to file a Federal income tax return for the

most recent tax year, or (2) USCIS determines that the income listed on the Federal tax return for the

sponsor’s most recent tax year does not meet the governing threshold.

In other words, if the sponsor’s current income is sufficient, it can establish that the Form I-864 itself is

sufficient even if the tax return without any other documentation might warrant a finding that it is not

sufficient. For example, if the sponsor recently started a new job (that USCIS is satisfied will likely

continue) and the income from the job now meets or exceeds the legal requirement, USCIS may find the

Affidavit of Support to be sufficient, notwithstanding information included in the transcrip t or copy of the

tax return(s).

By contrast, 8 CFR 213a.2(c)(2)(ii)(C) permits USCIS to conclude that a Form I-864 is not sufficient, even

if the sponsor’s household income meets the Poverty Guideline threshold. USCIS should make this

conclusion only if the evidence of record makes it “reasonable to infer that the sponsor will not be able to

maintain his or her household income at a level sufficient to meet his or her support obligation.” For

example, if the sponsor’s income is from a job that is merely temporary or seasonal, USCIS might

reasonably conclude that the income is likely not to continue, and could also conclude that the Affidavit of

Support, for that reason, is not sufficient.

If the household income meets the Poverty Guidelines threshold, however, USCIS will generally conclude

that the Form I-864 is sufficient. There must be some specific reason, supported by evidence in the record,

to conclude that the Form I-864 is not sufficient.

(F) Means-Tested Public Benefits Received by the Sponsor.

USCIS has decided that, as a matter of policy, it will require the sponsor to disclose his or her receipt of

means-tested public benefits and not consider the fact that a sponsor has received such means-tested public

benefits in the past to be an adverse factor in evaluating a Form I-864 or Form I-864EZ. However, the

sponsor may not include any means-tested benefits currently being received in calculating the household

income.

(G) Compare Total Household Income with Governing Poverty Guideline.

If the sponsor’s total household income (line 24c of Form I-864 or line 18 of Form I-864EZ) is greater

than or equal to the governing Poverty Guideline threshold, the sponsor does not need to show evidence of

assets and does not require a joint sponsor. In this case, USCIS may move to Part 8 of Form I-864 or Part 6

of Form I-864EZ.

If a Form I-864EZ does not demonstrate means to maintain the required income, USCIS may choose to

request that the adjustment of status applicant submit a new Form I-864 from the sponsor (if the applicant

seeks to qualify based on showing “significant assets”), or to submit a sufficient Form I-864 from a joint

sponsor. Note that this request for evidence would go to the applicant, not the sponsor.

If a Form I-864 does not demonstrate means to maintain the required income, USCIS should consider the

assets listed in Part 7 of the form.

(5) Part 7 of Form I-864: Use of Assets to Supplement Sponsor’s Income .

If a sponsor cannot meet the Poverty Guideline requirement based upon total household income listed on

line 24c, he or she may show evidence of assets owned by the sponsor, and/or members of the sponsor’s

household, that are available to support the sponsored immigrant(s) and can be readily converted into cash

within 1 year.

For assets of the intending immigrant and/or household member to be considered, the household member

must complete and sign Form I-864A. USCIS should check to make sure that the Form I-864A is completed

and signed by the sponsor and the household member.

(A) Evidence of assets .

Evidence of the sponsor’s assets should be attached to the Form I-864. Evidence of the principal sponsored

immigrant’s and/or household member assets should be attached to Form I-864A. In each instance, the

evidence should establish the location, ownership, and value of each listed asset, including any liens or

liabilities for each listed asset. Evidence of assets includes, but is not limited to:

· Bank statements covering the last 12 months, or a statement from an officer of the bank or other

financial institution in which the sponsor has deposits, including deposit/withdrawal history for the last 12

months, and current balance;

· Evidence of ownership and value of stocks, bonds, and certificates of deposit, and dates acquired;

· Evidence of ownership and value of other personal property and dates acquired; and

· Evidence of ownership and value of any real estate and dates acquired.

(B) Amount of assets required.

In order to qualify using assets, the total net value of all assets must generally equal at least five times the

difference between the sponsor’s total household income and the minimum income requirement for the

current year.

Example for a household size of 4 :

125 percent of 2006 Poverty Guidelines

Sponsor's income

Difference

Multiply by 5

Minimum Required Net Value of Assets

There are two exceptions, however:

$25,000

$19,500

$5,500

x 5

$27,500

· If the adjustment of status applicant intends to immigrate as a spouse of a U.S. citizen or as the child of

a U.S. citizen who will not become a citizen under section 320 of the Child Citizenship Act of 2000

because the child has already reached his or her 18th birthday, the “significant assets” requirement will be

satisfied if the assets equal three times, rather than five times, the difference between the applicable income

threshold and the actual household income.

Example for a household size of 4 :

125 percent of 2006 Poverty Guidelines

$25,000

Sponsor's income

$19,500

Difference

$5,500

Multiply by 3

x 3

Minimum Required Net Value of Assets

$16,500

· If the adjustment of status applicant intends to immigrate as an IR-4 immigrant (orphans coming to the

United States for adoption), the parents’ assets only need to equal or exceed the difference between the

applicable income threshold and the actual household income.

Example for a household size of 4 :

125 percent of 2006 Poverty Guidelines

Sponsor's income

Difference (Minimum Required Net Value of Assets )

(6) Joint Sponsors.

$25,000

$19,500

$5,500

If the petitioner or substitute sponsor cannot demonstrate ability to maintain a household income of at least

125% (or 100% when applicable) of the Federal Poverty Guidelines, the intending immigrant may meet

the Affidavit of Support requirement by obtaining a joint sponsor who is willing to accept joint and several

liability with the principal sponsor as to the obligation to provide support to the sponsored alien and to

reimburse agencies who provide means-tested benefits to the sponsored alien during the period that the

Affidavit is enforceable. The regulations at 8 CFR 213a.2(c)(2)(iii)(C) allow but do not require two joint

sponsors per family unit intending to immigrate based upon the same family petition. Further guidance

regarding joint sponsors may be found at paragraph (d)(7) above.

(7) Part 8 of Form I-864 or Part 6 of Form I-864EZ.

Part 8 of Form I-864 or Part 6 of Form I-864EZ constitute the bulk of the contract and covers the purpose

of the Affidavit of Support, which is to overcome the public charge grounds of inadmissibility. It also

includes the notice of change of address requirements (the sponsor must notify the Secretary of Homeland

Security of the sponsor’s new address within 30 days of any change of address by filing Form I-865 with

USCIS), means-tested benefit prohibitions and exceptions, consideration of the sponsor’s inco me in

determining eligibility for benefits and the civil action to enforce the Affidavit. Additionally, it requires a

certification under penalty of perjury that the sponsor is aware of the legal ramifications of being a sponsor

under section 213A of the Act.

After placing the sponsor under oath, USCIS should verify that the portion under “Concluding Provisions”

has been completed.

Once signed, the concluding provisions satisfy the statutory requirement that the sponsor must make a

written statement under penalty of perjury indicating that the copies of the Federal income tax returns

submitted with the Affidavit of Support are true copies of the returns filed with the Internal Revenue

Service.

A photocopy of the signed Form I-864 may be submitted for each spouse and/or child of the principal

beneficiary of the adjustment of status application. Copies of supporting documentation are not required.

(8) USCIS Completion of “Agency Use Only” Box .

In adjustment cases adjudicated by USCIS, USCIS must complete the “Agency Use Only” box on the first

page of the Form I-864 or Form I-864EZ. If the petitioner sponsor does not qualify, USCIS should check

the box “Does not meet.” In order for the applicant to be approved, there must be in the file another Form

I-864 that meets the requirements from a joint sponsor. In such a case, USCIS must check the “Meets” box,

and then sign, date, and note the office code for location.

In cases adjudicated by an immigration judge where the judge did not complete the Agency Use Only box,

USCIS will complete the processing of the case after the judge’s decision by completing the box on the

USCIS copy of the Form I-864 by checking either the “Meets” or the “Does not meet” box. USCIS must

then add a notation, “Adjustment application approved (or denied) by U.S. Immigration Court at (place)

on (date).” USCIS will then sign, date, and note the office code for location.

(9) Verification of Information .

The Government may pursue verification of any information provided on or with Form I-864, I-864EZ, I-

864A (e.g., employment, income, and/or assets) with the employer, financial or other institutions, the

Internal Revenue Service, or the Social Security Administration.

If USCIS finds that a sponsor, joint sponsor, or household member has concealed or misrepresented

material facts concerning income, household size, or any other material fact, USCIS shall conclude that the

Affidavit of Support is not sufficient to establish that the sponsored immigrant is not likely to become a

public charge. In this situation, the sponsor or joint sponsor may be liable for criminal prosecution under

the general statutes relating to the submission of fraudulent immigration documents. Failur e of the

sponsor or joint sponsor to provide adequate evidence of income and/or assets will result in the denial of

the application for adjustment to lawful permanent residence status.

(l) Insufficient Affidavits Submitted in Support of Adjustment Applications .

The Affidavit of Support is not a separate application. It is supporting documentation for an adjustment of

status application. Correspondence regarding insufficient Affidavits of Support should be sent to the

adjustment applicant and his/her legal representative, but not to the sponsor.

If the Form I-864 or I-864EZ is insufficient, and procedures for requesting additional evidence have been

exhausted, the entire adjustment of status application should be denied because the intending immigrant is

inadmissible on public charge grounds in addition to any other reasons why the adjustment case may be

denied.

The following language should be included in a denial letter of an adjustment of status application which

does not fulfill the requirements under section 213A of the Act:

You are not eligible for adjustment of status under section 245 (a)(2) of the Act, because you are

inadmissible as an alien who is likely at any time to become a public charge pursuant to

section 212(a)(4)(C) of the Act, 8 USC 1182(a)(4)(A) and 1255(a)(2). If you are an alien seeking

adjustment of status as (insert appropriate category: an immediate relative, a family based immigrant, or an

employment based immigrant who will be employed by a relative or a relative’s firm) you are inadmissible

under this ground unless an Affidavit of Support that meets the requirements of section 213A of the Act, 8

USC 1183a, has been filed on your behalf. The Affidavit(s) of Support provided in your case does not meet

the requirements of section 213A because (insert appropriate language/deficiency; e.g. failure to meet the

income requirement, ineligible sponsor, etc.)

Note

This language must be modified in order to address the specifics of each case, including any other

reasons for denial. If the applicant is denied due to an ineligible sponsor, be sure to include the reason

why the sponsor is ineligible, e.g., the sponsor cannot be a corporation, organization, or other entity,

the sponsor is not at least 18 years of age, etc. Details regarding the sponsor’s personal financial matters

should not be revealed in the denial letter to the adjustment applicant unless the denial is based at least

partially upon such information.

(m) Service Center Processing .

The processing of the packet of forms which subsequently produce an alien registration card (I-181, I-485

or OS-155A) includes data entry of Affidavits of Support when they are required by statute. If an applicant

fails to submit an Affidavit of Support when one is required, USICS will request that an Affidavit of Support

be submitted before the case can be adjudicated.

In those instances where one or more Affidavits of Support are contained in the packets, data from each of

them will be entered into CLAIMS as a subscreen of the I-485 or visa to which it is attached.

The types of data entry at the Service Centers will be:

· Forms I-864 attached to a Form OS-155A, immigrant visa received from Ports of Entry;

· Forms I-864 attached to a Form I-485 filed and adjudicated at the Service Center; or

· Forms I-864 attached to Form I-485 filed and/or adjudicated at local offices. The data entry in most of

these cases will be attached to the data entry of a “copy 3” of Form I-181.

All Forms I-864 will be maintained in the same A or T File in which the controlling form is stored. There is

no data entry of information from Form I-864A.

(n) Statistical Reporting .

Effective October 1, 2005, hours and actions are tracked on Form G-23.3, Line 171S. Reporting

Instructions are provided in the document entitled, "Examinations Activity: G-22.2, G-22.2a, G-22.3, G-

22.3a Adjudications Summary Procedures." These procedures implement Administrative Manual (AM)

Policy Statement 3.1.101.

(o) Termination of Sponsor’s Obligation and Enforcement .

The obligations created under Form I-864 and I-864A terminate when the sponsored alien:

· Becomes naturalized;

· Is credited with at least 40 quarters of employment in the Social Security system;

· Loses or abandons his or her lawful permanent resident status; or

· Dies.

Note

For any qualifying quarter to be creditable for any period beginning on or after December 31, 1996, the

alien must not have received any Federal means-tested public benefit during that quarter. A Federal

means-tested public benefit is any public benefit funded in whole or in part by funds provided by the

Federal Government that the Federal agency administering the Federal funds defines as a Federal means-

tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of

1996 (Pub. L. 104-193). Federal means tested benefits include: SSI (Supplemental Security income),

TANF (Temporary Assistance for Needy Families), food stamps, Medicaid, and State Child Health

Insurance Programs (SCHIP). State and local means tested benefits vary by jurisdiction.

Note

The qualifying quarters worked by a parent of, or the spouse of such alien during the marriage to the

alien may often be credited to the alien beneficiary.

If the sponsored immigrant is the sponsor’s child, the legal obligation made in the Affidavit of Support is

not terminated by the child’s adoption after acquiring permanent residence.

If the sponsored immigrant is the sponsor’s spouse, divorce will not terminate the legal obligation made in

the Affidavit of Support.

Even when the support obligation has been terminated, the sponsor, or the sponsor’s estate may still be

held liable for any reimbursable amount that accrued before the termination of the obligation.

(p) Reimbursement Requests .

USCIS is not directly involved in enforcing an Affidavit of Support sponsor’s obligation to reimburse an

agency for means tested public benefits. USCIS does, however, make information about the sponsor

available to an agency seeking reimbursement. Upon the receipt of a duly issued subpoena, USCIS will

provide the agency with a certified copy of a sponsor’s Form I-864.

In addition, USCIS routinely provides the sponsor’s name, address, and Social Security number to Federal,

state, and local agencies providing means-tested benefits. This information is used to determine whether a

sponsored immigrant who is applying for benefits is eligible for them. These queries are submitted to

USCIS on Forms G-845, G-845S, and the G-845 Supplement.

(q) Sponsor’s Address Change Notification .

Under section 213A(d) of the Act, the sponsor must notify the Secretary of Homeland Security of the

sponsor’s new address within 30 days of any change of address. The sponsor meets this obligation by

completing and filing Form I-865 with USCIS. USCIS is obligated by statute to maintain the address and

social security number of all sponsors in an automated system.

If a sponsor fails to satisfy this requirement, USCIS may, after notice and opportunity to be heard, impose

on the sponsor a civil penalty of not less than $250 or more than $2,000, or if such failure occurs with

knowledge that the sponsored alien has received any means-tested public benefits (other than benefits

described in 401(b), 403(c)(2), or 411(b) of the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996) not less than $2,000 or more than $5,000.

Appendix 20-1 The New Affidavit Of Support.

THE NEW AFFIDAVIT OF SUPPORT AND OTHER 1996 AMENDMENTS TO IMMIGRATION AND

WELFARE PROVISIONS DESIGNED TO PREVENT ALIENS FROM BECOMING PUBLIC CHARGES

(used by permission of the author)

Creighton Law Review

May, 1998

Annual Survey of the United States Supreme Court and Federal Law

THE NEW AFFIDAVIT OF SUPPORT AND OTHER 1996 AMENDMENTS TO IMMIGRATION AND

WELFARE PROVISIONS DESIGNED TO PREVENT ALIENS FROM BECOMING PUBLIC CHARGES

Michael J. Sheridan, J.D., A.M. [FNd1]

FN[FNd1]. Associate General Counsel, United States Department of Justice, Immigration and Naturalization

Service; Bachelor of Arts, U. of St. Thomas, 1980; Juris Doctor, William Mitchell College of Law, 1987;

Master of Arts (Political Science), Duke University, 1994. This article expresses Mr. Sheridan's own views,

and is not intended as, nor is it, a statement of Department of Justice or of INS policy. The article is

dedicated to the memory of Richard C. Sheridan, Creighton Law School Class of 1963.

I.INTRODUCTION

II.BACKGROUND

III. RESTRICTIONS ON THE ELIGIBILITY OF ALIENS FOR PUBLIC BENEFITS

A. 'Qualifieda liens' and the abolition of the PRUCOL doctrine

B. A Word About Free Public Education for Aliens Unlawfully Present

IV.THE NEW, ENFORCEABLE, AFFIDAVIT OF SUPPORT

A.When an INS Form I-864 will be required

B.Sponsorship Requirements

C.Income Requirements

1.Calculation of income

2.Proof of Income

3.Assets as a supplement to income

4.Joint sponsors

D.Legal Effect of Affidavit of Support

1. Attribution of the sponsor's income and assets to the sponsored immigrant

2.Enforcement

E.Change of address requirement

V.CONCLUSION

I. INTRODUCTION

This article provides an introduction to the amendments enacted by the 104th Congress that pertain to

the eligibility of aliens for various public benefit programs, and to the inadmissibility of aliens who are

likely to become public charges. The two principal enactments are the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996 (PRWORA) [FN1] and the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA). [FN2] The new legislation provides more stringent restr

ictions on the eligibility of aliens for benefits available under Federal law. [FN3] Congress has also

authorized States to adopt similar restrictions for their own benefit programs. [FN4] Finally, Congress has

made the traditional use of "affidavits of support" mandatory in certain cases, and, more importantly, made

the affidavit of support enforceable by civil action. [FN5]

II. BACKGROUND

At least since 1882, United States immigration law has provided that an alien "unable to take care of

himself or herself without becoming a public charge" was to be denied admission to the United States.

[FN6] Congress continued this provision in effect under the Immigration Act of 1917. [FN7] Moreover, an

alien who was admitted, but who became a public charge within 5 years of admission, was subject to arrest

and deportation. [FN8] These grounds of inadmissibility and deportability remain in effect. [FN9]

Enforcement of these provisions, in recent decades, has been something less than vigorous. Between fiscal

year 1941 and fiscal 1984, the Immigration and Naturalization Service ("INS") obtained and executed

exclusion orders against only 1,301 aliens on the basis that they were likely to become public charges.

[FN10] From fiscal year 1941 through fiscal year 1980, INS executed deportation warrants against only

407 aliens for having become public charges. [FN11]

The difficulties of enforcement arose from administrative practice. First, both the 1917 Act and current law

permitted admission of an alien who was likely to become a public charge, if the alien (or someone on the

alien's behalf) posted a bond to assure that the alien would not become a public charge. [FN12] Despite

this statutory provision, the Department of State and the INS began to accept "affidavits of support," filed

by individuals or, occasionally, judicial personalities, who undertook to ensure that the alien would not

become a public charge. [FN13] If the consular or immigration officer was satisfied that the person who

completed the affidavit of support had the resources and intention to support the alien, the issue of posting

a bond simply did not arise.

It is not clear when this administrative practice began. The practice began many decades ago, however, as

reflected in Dept. of Mental Hygiene for the State of California v. Renel, [FN14] a 1958 decision of the

Appellate Division of the New York State Supreme Court. [FN15] In Renel, the defendants had filed

affidavits of support on behalf of their immigrant nephews in 1948. [FN16] One of the nephews came

under the care of the California Department of Mental Hygiene. [FN17] When the California authoriti es

sued to recover the costs of his care, the Appellate Division held that the affidavit of support imposed only a

"moral" obligation on the defendants, and that Congress had not given the Executive the authority to make

the sponsors sign affidavits of support that were enforceable by civil action. [FN18] The Supreme Court of

Michigan and the California Court of Appeals reached the same conclusion when the scope of the sponsor's

obligation under an affidavit of support came before them. [FN19] More recentl y, Congress gave some

legal effect to affidavits of support by providing that the sponsor's income was to be deemed to be the

sponsored alien's income, for the first three years after the sponsored alien's entry to the United States, in

determining the sponsored alien's eligibility for Food Stamps [FN20], Supplemental Security Income

("SSI") [FN21], and Aid to Families with Dependent Children ("AFDC"). [FN22] Despite these provisions,

the Michigan Supreme Court held that Michigan public assistance agencie s could not consider the income

of a person who executed an affidavit of support to be an alien's income in determining the alien's

eligibility for State public assistance programs. [FN23]

Congress also contributed to the problem of receipt of public assistance by aliens present illegally. In the

statutes defining eligibility criteria for the unemployment compensation [FN24], AFDC [FN25], SSI

[FN26], and Medicaid [FN27] programs, Congress provided for payment of benefits, not only to lawful

immigrants, but to aliens "permanently residing under color of law." [FN28] Under what came to be

known as the "PRUCOL" (Permanently Residing Under Color of Law) doctrine, expounded by the United

Stat es Court of Appeals for the Second Circuit in Holley v. Lavine, [FN29] even an alien who was

unquestionably present in the United States contrary to law could be PRUCOL. [FN30] Thus, if the INS was

aware of the alien's unlawful presence, but was not actively pursuing his or her deportation, the alien was

eligible for benefits. [FN31] During the Reagan Administration, in response to further litigation, [FN32]

the Social Security Administration amended the regulations governing the SSI program to incorporat e the

Holley court's interpretation of the PRUCOL concept. [FN33] The Health Care Financing Administration

similarly amended its regulations for the medical assistance program during the Bush Administration.

[FN34] Thus, aliens with no legal right to remain in the United States could nevertheless be eligible for

public assistance. [FN35]

For the deportation ground, enforcement became difficult because of a different administrative decision. In

1948, the Attorney General held that an alien could not be deported for having become a public charge

simply because the alien had received, within five years of admission, public assistance on the basis of a

factor existing at the time of admission. [FN36] In order for the deportation charge to be sustained, the INS

had to prove that receipt of the assistance imposed on the alien, or on some othe r person responsible for

the alien's care, a legally enforceable obligation to repay the assistance. [FN37] Moreover, the assistance

agency had to have made an actual demand for reimbursement, and the demand had to have gone

unsatisfied. [FN38] No doubt part of the reason there were few public charge deportations is that assistance

agencies had little incentive to pursue debts that were likely to go unsatisfied, merely to permit the

deportation of an alien who continued to need care.

III. RESTRICTIONS ON THE ELIGIBILITY OF ALIENS FOR PUBLIC BENEFITS

A. "Qualified aliens" and the abolition of the PRUCOL doctrine

The linchpin of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996

("PRWORA"), as it relates to the eligibility of aliens for public benefits, is the new statutory definition of a

"qualified alien." [FN39] Section 1641(b) lists seven immigration categories that give an alien the status of

a "qualified alien." [FN40] It is important to note that the term "qualified alien" means, rather than

includes an alien in one of the seven categories. Thus, an alien who has not been:

· lawfully admitted for permanent residence under the Immigration Nationality Act ("INA"), 8 U.S.C.A.

§§ 1101 et seq. (West Supp. 1997);

· granted asylum under INA § 208, 8 U.S.C.A. § 1158 (West Supp. 1997);

· admitted as a refugee under INA § 207, 8 U.S.C.A. § 1157 (West Supp. 1997);

· granted withholding of deportation under INA § 212(d)(5), 8 U.S.C.A. § 1253(h) (West Supp. 1997);

· granted conditional entry under INA § 203(a)(7), 8 U.S.C.A. § 1153(a)(7) (West Supp. 1997); or

· paroled into the United States for at least one year under INA § 212(d)(5), 8 U.S.C.A. § 1182(d)(5)

(West Supp. 1997),

is not a qualified alien, regardless of what status the alien may hold under the immigration laws. [FN41]

The only exception is that an alien who is not within the definition of a "qualified alien" is treated as a

qualified alien if the alien has presented at least a prima facie case for approval of a visa petition or for

cancellation of removal (formerly known as suspension of deportation) as the battered spouse or child of a

citizen or resident alien, and the assistance agency finds a substantial connect ion between the abuse of the

alien and the alien's need for assistance. [FN42] To qualify for this exception, the visa petition or

application for cancellation of removal must either have been approved, or at least must be actually filed,

and awaiting approval. [FN43]

The necessary implication of the definition of "qualified alien" is that the PRUCOL (Permanently Residing

Under Color of Law) doctrine from Holley is abolished. It is true that the expression "permanently residing

under color of law" remains in the statutes cited earlier. [FN44] But, with a few exceptions clearly specified

by statute [FN45], an alien "who is not a qualified alien is not eligible for any Federal public benefit."

[FN46] The statute defines the term "Federal public benefit" quite capricio usly, rendering an alien who is

not a qualified alien ineligible for any grant, contract, loan, professional license, or commercial license

provided by an agency of the United States or by appropriated funds of the United States; and any

retirement, welfare, health, disability, public or assisted housing, post-secondary education, food

assistance, unemployment benefit, or any other similar benefit for which payments or assistance are

provided to an individual, household, or family eligibility unit by an age ncy of the United States or by

appropriated funds of the United States. [FN47]

Congress has also made many aliens ineligible for public benefits available under State or local law. [FN48]

The definition of "State and local public benefit" corresponds to the definition of "Federal public benefit."

[FN49] In contrast to Federal public benefits, however, an alien who is not a qualified alien may be eligible

for State or local public benefits if the alien has been lawfully admitted as a nonimmigrant or has been

paroled into the United States for a period that will not exceed one year. [FN50] Despite this broad

ineligibility for public benefits, aliens who are not qualified aliens are permitted to receive certain specified

Federal public benefits. [FN51] There are also four specific exceptions from the prohibition on receipt of

State and local public benefits. [FN52]

Even "qualified aliens" are ineligible for "Federal means-tested public benefits" for a period of five years

after becoming "qualified aliens." [FN53] This five-year wait does not apply to refugees, asylees, aliens

granted withholding of deportation or removal, Cuban and Haitian entrants, or aliens admitted as

Amerasian immigrants ("Amerasian immigrants"). [FN54] Also exempt are honorably discharged veterans

who served on active duty for at least twenty-four months (or the full term of active service, if less) and

Armed Forces personnel currently on active duty (other than active duty for training). The spouses and

unmarried dependent children of veterans and active duty personnel are also entitled to this exemption.

[FN55]

This five-year wait for eligibility for Federal means-tested public benefits is somewhat of an anomaly. First,

the provision does not define "Federal means-tested public benefit." [FN56] The Senate struck, pursuant to

the "Byrd Rule," a proposed statutory definition of "means-tested public benefit" from the legislation that

was eventually enacted as PRWORA. [FN57] Secondly, the five-year wait does not apply to eleven specific

eligibility programs, ranging from in-kind forms of emergency assistance to pa rticipation in the Head Start

and Job Training Partnership Act programs. [FN58]

More noteworthy still is that Congress has provided stricter eligibility requirements in order for "qualified

aliens" to receive SSI. [FN59] States, moreover, may restrict the eligibility of "qualified aliens" for assistance

under the Temporary Assistance for Needy Families (TANF, the successor to AFDC), Medical Assistance,

and Social Services Block Grant programs. [FN60] In each case, a permanent resident alien must have

worked (or must be eligible to be credited with) forty qualifying quarters of cov erage under the Social

Security Act. [FN61] A person cannot be credited with more than four qualifying quarters in any calendar

year. [FN62] Thus, a single person would have to work at least ten years in order to have forty quarters of

coverage.

In determining eligibility under these programs, the person may not rely on any quarter of coverage

actually earned after December 31, 1996, if the person received any Federal means-tested benefit during

that quarter. [FN63] Spouses, however, may be credited with each other's qualifying quarters, so long as

the quarters were earned during the marriage and they remain married. [FN64] An alien is also entitled to

rely on the quarters of coverage earned by his or her parents before his or her eighteenth b irthday. [FN65]

It is possible, therefore, that five, rather than ten, years of at least part- time employment in the United

States may relieve married permanent residents and their alien children of the restrictions on eligibility for

assistance under the TANF, SSI, Food Stamps, Medical Assistance, and Social Service Block Grant programs.

There are other exceptions to the restrictions on eligibility under these programs. First, honorably

discharged veterans, active duty Armed Forces personnel (other than those on active duty only for

training), and the spouses (including qualified unremarried widow(er)s) and unmarried dependent

children of veterans and active duty personnel are eligible for benefits under these programs, without

having to work for at least forty qualifying quarters of coverage. [FN66] Second, refugees, asylees, aliens gr

anted withholding of deportation or removal, Cuban and Haitian entrants, and Amerasian immigrants are

not subject to the restrictions on SSI and Medicaid eligibility until they have been in the United States for at

least seven years. [FN67] They are also relieved of the restrictions on eligibility for TANF, Food Stamps,

and Social Services Block Grant assistance for the first five years after their admission. [FN68]

An alien who is residing lawfully and who was receiving SSI on August 22, 1996, remains eligible for SSI.

[FN69] There are additional exceptions for certain Native Americans, for "very old applicants," and for

blind or disabled aliens who were residing in the United States lawfully on August 22, 1996. [FN70]

Native Americans and others entitled to receive SSI are also exempt from the restrictions on Medicaid

eligibility. [FN71]

There is also a potentially significant exception that Congress did not make. As noted above, if the INS or an

immigration judge has accorded an alien classification as a battered spouse or child, or if the alien has, at

least, filed a petition or application that makes a prima facie case for this status, the alien is considered to be

a "qualified alien." The alien, therefore, would not be ineligible, because of his or her immigration status,

for many Federal, State and local public benefits. [FN72] Bu t Congress did not grant these aliens an

exception from the limits on the receipt of Federal mean-tested benefits, nor from the more specific

restrictions on the receipt of assistance from the SSI, TANF, Food Stamp, Medicaid, and Social Service Block

Grant programs. [FN73]