Who Is Exempt From Submitting Form I-864 Affidavit of Support

A few green card applicants are exempt from the Affidavit of Support requirement, and do not need to submit a Form I-864 at all (though they might still face public charge issues).

By , J.D., University of Washington School of Law

Most immigrants applying for a family-based U.S. green card (lawful permanent residence) must, as part of the application process, have their petitioner (the U.S. citizen or permanent resident who filed their I-130 petition) fill out and submit an Affidavit of Support on Form I-864. (This form is prepared by U.S. Citizenship and Immigration Services (USCIS), and available on the I-864 page of its website.)

The purpose of the Affidavit of Support is to help assure the U.S. government that the immigrant is not inadmissible as someone likely to become a public charge; that is, receive need-based government assistance (often called "welfare"). The Affidavit represents the petitioner/sponsor's promise to support the immigrant financially for a period of years, so that the immigrant will not need such assistance; or at least to pay back (reimburse) any government agencies from which the immigrant does claim such assistance.

Nevertheless, the law makes a few applicants exempt from the Affidavit of Support requirement, and do not need to submit a Form I-864 at all. We'll review those exceptions here, which include ones based on:

  • Social Security work credits already earned
  • the Child Citizenship Act
  • a self-petition by the widow(er) of a U.S. citizen, and
  • a self-petition based on abuse (VAWA).

Exemption Based on Social Security Work Credits

Immigrants who are exempt from the I-864 requirement include those who have either:

  • worked for 40 Social Security "quarters" (also referred to as having earned 40 "credits") in the U.S. (approximately ten years, depending in part on earnings level for each year in question; the maximum credits one can earn per year is four)
  • been married while the U.S. spouse worked for 40 Social Security quarters, or
  • a combination of the above.

The concept is that a financial sponsor's responsibility lasts until the immigrant has (among other possibilities) earned 40 work quarters credited toward Social Security. A work quarter is approximately three months, but it depends partly on how high your earnings and the minimum for the year in question. To check one's earnings record, go to the create an account page of the SSA website.

If you have already reached the 40 quarters on your own, through lawful employment (perhaps while in the U.S. as a student or H-1B worker) there is no need for the sponsor to fill out an Affidavit of Support for you. In some cases, even someone who worked in the U.S. illegally can claim that time toward the 40 quarters.

In an interesting twist, the immigrant can be credited for work done by thei U.S. spouse during their marriage, or by a U.S. parent while the immigrant was under the age of 18. And because a combination is okay, you could show that the immigrant earned 20 credits and the U.S. spouse earned another 20 during the time period that they were married, or any combination that gets you to at least 40.

Exemption Based on Child Citizenship Act

Under the Child Citizenship Act (CCA), certain immigrant children will become U.S. citizens automatically, as soon as they become U.S. permanent residents. This is called "derivation" of citizenship. Such applicants do not need an I-864 Affidavit of Support to be filed for them. There is no need to file documentary proof of eligibility under this category. They will still, however, need to clear the public charge hurdle.

Exemption Based on Self-Petition by Widow(er) of U.S. Citizen

Widows and widowers of U.S. citizens may, regardless of the duration of their marriage, self-petition for or continue with their application for U.S. residence, so long as they do so within the two years of the U.S. citizen's death and do not remarry. They will not need to submit an I-864 Affidavit of Support. They will still, however, need to clear the public charge hurdle.

Their approved Form I-360 will be sufficient proof of their I-864 exemption. If the deceased U.S. citizen filed an I-130 petition before the death, it converts to an I-360 automatically, though the immigrant will need to advise USCIS of the death first.

Exemption Based on VAWA Self-Petition

Abused or battered spouses or children self-petitioning for U.S. green card under the Violence Against Women Act (VAWA) are also exempt from the I-864 Affidavit of Support requirement. Their approved Form I-360 will be sufficient proof of their exemption. They will still, however, need to clear the public charge hurdle.

How to Prove Exemption From Form I-864

You'll need to state why you're exempt within other paperwork that you fill out while immigrating, most likely by using Form I-864W. If claiming the work-based exemption, you will also have to prove how many quarters of work your spouse or you has done by going to the Social Security website and creating an account.

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