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Affidavit of Support

Understanding the Affidavit of Support:  Financial Sponsorship Requirements for Petitioning U.S. Citizens

Enforcement of the Affidavit of Support  – Understanding the Obligations of the sponsor/petitioner:  The final rule on the Affidavit of Support, published in June 2006, clarifies that, for the obligations to arise (reimbursement to the federal government of any public assistance payments made to the immigrant in the future), the immigrant must actually acquire permanent resident status on the basis of the application supported by an Affidavit of Support.

Additionally, a potential joint sponsor who signed an Affidavit of Support that met all the requirements of the affidavit of support regulation would be bound by the support obligations only if the immigration judge, immigration officer, or consular officer found that the principal sponsor did not meet the income threshold, so that the joint sponsor?s Affidavit of Support was actually necessary to the grant of permanent residence to the intending immigrant.

Further, a formal adjudication in a removal proceeding that an alien has abandoned permanent resident status will also terminate any remaining obligations under any Affidavit of Support submitted when the person became a permanent resident.

Second, some immigrants who have already been admitted as permanent residents but have become subject to removal apply for a new grant of adjustment of status as a means of relief from removal. If an immigrant in this situation seeks this new adjustment as an immediate relative or as a family-based immigrant (or as an employment-based immigrant who will work for a relative or a relative?s firm), the alien may need to submit a new Affidavit of Support with the new adjustment application.

The grant of adjustment will terminate the support obligations resulting from any earlier filed Affidavit of Support, and those obligations will then rest on whomever signed the Affidavit of Supports in support of the new adjustment application.

Circumstances that end the support obligation:

  • The sponsored immigrant?s naturalization;
  • If the sponsored immigrant has acquired 40 quarters of coverage under the Social Security Act;
  • The death of the sponsor or sponsored immigrant;
  • The sponsored immigrant?s abandonment of status and permanent departure from the United States

(NOTE: Divorce still does not end the obligation)

[JOINT SPONSORS] The regulations also confirm that:

A joint financial sponsor may only be used if the petitioner’s income is not sufficient under the poverty guidelines. The petitioner and the joint (secondary) sponsor may not “pool” their income (combine it) to meet the income requirement. The joint financial sponsor must independently establish that his or her income level is sufficient to sponsor the immigrant by him or herself.

The immigrant may not have more than one joint sponsor.

The sponsor should not have to provide a new Affidavit of Support if the Poverty Guidelines change while the case is awaiting decision. It will not be necessary to file a new Affidavit of Support in this case. The final rule also clarifies that the sufficiency of the affidavit of support will be determined in accordance with the Poverty Guidelines in effect when the intending immigrant files the application for an immigrant visa or adjustment of status.

The sponsor may rely on the intending immigrant?s income if the intending immigrant is either the sponsor?s spouse or has the same principal residence as the sponsor and can show by a preponderance of the evidence that the intending immigrant?s income will continue, after acquisition of permanent residence, from the same source (such as lawful employment with the same employer or some other lawful source). The prospect or offer of employment in the United States that has not yet actually begun will not be sufficient to meet this requirement.

In determining if the sponsor has met the minimum income level for the household size, the sponsor may not include any means-tested benefits received in calculating the household income. The sponsor may, of course, rely on retirement benefits, unemployment compensation, workman?s compensation, or other benefits that the sponsor has received, that must be included as taxable income.

How to determine “income” from the sponsor’s tax return: “total income” means the entry for total income shown on the appropriate line of the relevant Federal individual income tax return, IRS Form 1040, 1040A, or 1040EZ, not the preliminary calculation of gross income on Schedule C.

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