Frequently Asked Questions About Preparing Form I-864 Affidavit of Support for Family Immigration

Can I count overseas assets or unemployment checks toward income? What documents will help tip the balance if I'm right on the line? These and other questions are answered below.

One of the most important forms that the U.S. government requires as part of getting a family-based green card is the Form I-864, Affidavit of Support. Its purpose is for the U.S. citizen or green card holder who is petitioning for immigrating family members to prove that the immigrant won't need to rely on government financial assistance; specifically because the petitioner will provide backup. It's literally a contract with the U.S. government, in which the petitioner promises to support the immigrant for up to approximately ten years.

Such a major commitment naturally leads to questions.

Question: How do I make sure USCIS notices my new, higher-paid job?

I'm a U.S. citizen petitioner, and my income is only just above the Poverty Guidelines required amount, based on having recently gotten a better job. Should I do anything to make sure USCIS approves my Affidavit of Support without issue?

Answer

All too often, when the petitioner's income is just above the Poverty Guidelines level, USCIS kicks the form back for more information. USCIS screening officers do not always look carefully enough at the current income, so they might issue a "Request for Evidence" (RFE) based on inadequate income amount shown on the tax return.

There are steps you can take to avoid such complications, basically by submitting more documentation than is required. For example, as USCIS details in its instructions to the I-864, you may want to submit a recent letter from your employer, stating your employer’s contact information and your annual salary; pay stubs showing your income for the last six months; and evidence of receiving any alimony, child support, dividend or interest income, or income from some other source.

In addition, you may wish to add a cover letter explaining the situation and stating your current income and why it meets the Poverty Guidelines level. If you need help with this process, see an experienced immigration attormey.

Question: Does foreign spouse's real estate count toward I-864?

I’m a U.S. citizen, petitioning for my wife and her young son, and filling out Form I-864. I have my own business, but in the last few years it hasn't earned enough to meet the amount I need in order to support the three of us under the Poverty Guidelines. My wife, however, owns a house in her home country, which she plans to rent out rather than sell. She has paid off the mortgage loan. Can we count that toward the minimum?

Answer

Overseas assets owned by the intending immigrant can be used to meet the Poverty Guidelines minimum support requirements. However, there are some conditions, and you will need to gather documents showing that you meet them, and include these with the I-864.

For starters, your wife will need to show that she in fact owns the property, as well as when she acquired it and where it’s located. A copy of the title deed or other ownership papers should take care of this. It’s good that she doesn’t owe money on the loan, and you should supply proof of this, such as a statement or letter from the lender indicating the loan was paid off.

The next requirement is that the house be convertible into cash (sold) within 12 months. If your wife comes from an area with a depressed real estate market, get a statement from a local expert, such as an appraiser or real estate agent, containing assurances that it will actually sell.

Then comes the matter of whether the cash such a sale would yield can be transferred to the United States. Many countries' currency controls forbid or limit such transfers. In an iffy situation, be ready to provide evidence that the transfer can be brought about.

A final note: Although we’ve described the general rule here, some consulates apparently refuse to include real estate in the support calculation. Check with an attorney, or get in touch with the consulate where your wife’s immigrant visa interview will be held, for more information.

Question: Do unemployment checks count toward I-864?

I’m a U.S. citizen, sponsoring my wife for a green card. The form asks for current income, of which I have only a moderate amount, from freelancing. I’m also getting unemployment checks. And I own a house, so I will be able to fill some of the gaps with assets. But my main question right now is, do the unemployment checks count, or is that a strike against me?

Answer

Good news: Although some sources of money related to unemployment cannot be counted toward income for purposes of Form I-864 (such as food stamps, SSI, Medicaid, and TANF), unemployment benefits are in a different category. They are basically insurance payments, which you are allowed to collect upon based on your employer having paid into a federal/state unemployment system earlier.

For that matter, if you are also receiving any retirement benefits, worker’s compensation payments, or other benefits that are similarly considered “taxable income” by the IRS, you can count these toward meeting the 125% of Poverty Guidelines levels required in order to serve as an immigrant’s financial sponsor. (This comes from 71 Federal Register 35731.)

How long you will remain eligible for the unemployment benefits is an issue you should look into, however. The immigration authorities may consider this in assessing your ability to maintain the necessary income levels over time.

Question: Does sponsor's ownership of real estate count toward I-864?

I am a U.S. citizen, hoping to sponsor my parents for U.S. green cards. They are retired, and coming to the U.S. from China. I work doing childcare at a nonprofit, earning $19,000 a year. This is too low to sponsor my parents—I need about $5,000 per year more. I’m willing to look for another job, but do I really have to? What about the fact that I own a condo, which is approximately half paid for?

Answer

You are wise to look into whether your assets can make up the apparent shortfall between your income and the amount required to sponsor immigrants at 125% of the U.S. Poverty Guidelines (which amounts can be viewed on Form I-864P, published by USCIS). Proving ownership of assets can be a convenient way to make up the difference without having to look for additional sponsors.

When petitioning for parents (or other family members besides spouses or children), you would need to make up any shortfall by counting assets at one-fifth their value after subtracting out your debt. (U.S. citizen sponsors of spouses or children need to divide the value by only three.) Another way of saying this is that you need to have assets worth five times the gap between your income and the required Poverty Guidelines minimum amount.

So, for example, let’s say you bought your condo for $300,000 and owe $150,000 on it. Assuming it hasn’t changed in value, you could count your assets as $150,000 divided by 5, or $30,000. That would be more than enough to meet your $5,000 gap.

In case your condo has gone up or down in value, USCIS may require you to pay a professional, licensed appraiser to provide a written report on your house’s current value. Some applicants have, however, found that U.S. immigration authorities will accept other evidence of the home's value, such as estimates found on Zillow or Trulia. You could also supply evidence of your condo's assessed value from your local tax authority, but this may be lower than the actual, current value of your place.

You will also need to provide proof of ownership and a copy of your latest mortgage statement, to show how much you owe on the house.

The U.S. immigration authorities will also need to be convinced that your condo will likely sell (be converted to cash) within one year. This will typically not be a problem unless, for example, they discover evidence that the condos around you are not selling and/or many are in foreclosure.

Don’t forget that your parents’ assets can be counted in this analysis, too. If they perhaps have any savings or investments, this may tip the balance in your favor.

For more information, see the articles on Nolo’s page concerning The U.S. Sponsor's Financial Responsibilities.

Question: Will regular cash gifts from parents count toward I-864?

I'm a college senior, and my Estonian girlfriend and I plan to marry soon and apply for her green card. She is currently in the U.S. on a student visa. I see from Form I-864, however, that I'm supposed to have an income that covers the two of us. As a student, I haven't got any income. Fortunately, my parents have offered to send us regular gifts of cash before we find jobs. Can I count this cash as income on Form I-864?

Answer

Unfortunately, there is no provision on Form I-864 to count regular gifts as income. The next best possibility is if your parents can make you a large lump-sum gift of cash now, and you can put it in a bank account in your name and claim it as an asset. Ownership of assets can be a good way to make up a shortfall in your income for purposes of Form I-864.

You won't be allowed to count the entire amount, however. When petitioning for a spouse (or child), the U.S. sponsor must count the assets at one-third their value. (U.S. citizen sponsors of family members other than spouses or children need to divide the assets' value by five.)

So, if your parents gave you $30,000, you'd get to count $10,000 toward your sponsorship responsibilities, which would still not be enough for two people, according to the Poverty Guidelines levels listed on Form I-864P.

Consulting an attorney might be a good idea. With some strategizing around timing, you may be able to manage things so that both you and your new wife are working by the time her green card interview comes around (usually at least a few months after you turn in the Adjustment of Status application forms). She could thus be approved at that point without having to find additional sponsors.

Also see Strategies When an Immigrant's Sponsor's Income and Assets Are Too Low.

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