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AFFIDAVIT OF SUPPORT

One of the requirements for a foreign national to gain admission to the United States as a lawful permanent resident is to prove that the alien will not become a public charge dependent upon federal means-tested benefit welfare programs. To insure this requirement is met by aliens petitioning for immigrant status, the INS has instituted the required use of the Affidavit of Support document to be submitted in many types of permanent residence petitions. All family-based immigrants, including immediate relatives, family preference immigrants, and orphans must file legally enforceable Affidavits of Support (on Form I-864). Furthermore, employment-based immigrants coming to the US to work for relatives or for companies where relatives of the immigrant own 5 percent or more of the company must also file an I-864 Affidavit of Support. In contrast, the Form I-134 Affidavit of Support is required to be used for all family members immigrating as derivative beneficiaries based upon an employment-based immigrant petition. Form I-134 is also frequently used by other types of aliens such as parolees, students, and diversity lottery immigrants.

The Affidavit of Support involves the use of a sponsor who signs the affidavit as his promise to provide financial support and assistance to the immigrant if necessary. This responsibility lasts until the sponsored immigrant becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years). Sponsors usually must demonstrate income of at least 125 percent of the Federal poverty level for the sponsor's household size. The family member who filed the visa petition for the immigrant must be a sponsor.

If the petitioning family member by himself can not meet the 125 percent Federal poverty level threshold or has died before all family members have immigrated, additional sponsors, called "joint sponsors", are permitted to submit additional Affidavits of Support for the alien's petition. Sponsors must: be U.S. citizens, nationals, or lawful permanent residents; be age 18 or over; and be currently domiciled in one of the 50 states, Washington, D.C., or a U.S. territory or possession. Immigrants who are currently the beneficiaries of sponsorship obligations may also be sponsors for other family members. Furthermore, the immigrant's income can also be used to meet the poverty level requirements in situations such as when the immigrant beneficiary's spouse is the petitioner for the immigrant and they are living together in the same household. Similarly, income of anyone else related to the sponsor by birth, marriage, or adoption who has lived in the sponsor's household for at least 6 months or who is listed on the sponsor's income tax return for the most recent tax year as a dependent (including the sponsored immigrant, as stated above), can include their income on the Affidavit of Support through use of the Form 864A, Contract Between Sponsor and Household Member.

All sponsors, including joint sponsors or household members whose income is used to meet the minimum income requirements, are legally responsible for the financial support of the sponsored immigrant. Therefore, this situation will usually make sponsored immigrants ineligible to receive federal means-tested benefits as the sponsor's income and resources will be considered to be the financial means which will be used to support the immigrant instead. This process is called "deeming". Accordingly, if the immigrant receives any means-tested public benefits, all sponsors are responsible for repaying the cost of those benefits to the federal agency which provided them. If the sponsors do not repay the debt, the agency can sue the sponsors for payment. Currently, Federal means-tested public benefits include Food Stamps, Medicaid (but not emergency Medicaid), Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate some of their programs as means-tested public benefits.



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