David, a US citizen who lives on the US/Mexico border, got engaged last month
to his long-time girlfriend Maria, a Mexican citizen, and filed a K-1 fiancée
petition for her. Tatyana, a naturalized US citizen, just got married in Russia
and filed an I-130 and K-3 petition for her new husband. Matthew, who is in
the US Army and has been stationed in Germany for the last 2 years, and his
German wife, are getting ready for an immigrant visa interview with the US consulate.
Julianne, a permanent resident wants her cousin from Armenia to come visit for
the summer.
Four people, four different situations: what do they all have in common? All
four will need to file an affidavit of support. The big question for all four
is ‘which affidavit of support do I need to file?’ Petitioners and
visa applicants are often confused about which Affidavit of Support they need
to complete and submit – Form I-134 or Form I-864. Many are also confused
as to when and to whom they need to submit the affidavit of support. This article
will discuss the two Affidavits of Support – Forms I-134 and I-864, and
when each should be used.
The Form I-864 Affidavit of Support is legally required to be filed by the
petitioner/sponsor for all family-based, including immediate relative, and some
employment-based immigrants to show the intending immigrant will have adequate
means of support and are unlikely to become a public charge once they have immigrated
to the US. The Form I-134 Affidavit of Support is an older version of the
form and is used in certain nonimmigrant cases or when asked for by a consular
officer.
Comparison Between Forms I-134 and I-864:
Both forms are used to demonstrate that the beneficiary of the petition or
the visa applicant will not become a public charge while in the United States.
The Form I-134 is used for K-1
and K-3
nonimmigrant cases, even though the beneficiary will be coming to the US permanently.
A consular officer can also ask for an I-134 if he or she has a concern over
the ability of the nonimmigrant applicant to pay for their intended stay in
the US. On the other hand, Form I-864 is required for all family-based immigrants,
whether they are immediate relatives or preference categories, as well as some
employment-based immigrant cases.
The I-864 is used whether the beneficiary is filing for adjustment of status
in the US or obtaining an immigrant visa at a US consulate overseas. Looking
at our four cases above, David, Tatyana, and Julianne will all file a Form I-134,
while Matthew will have to submit a Form I-864. Maria, David’s fiancée,
and Ivan, Tatyana’s husband, will both need to file a Form I-864 once
they enter the US and file for adjustment of status.
As with their uses, the forms themselves are very different. Form I-134 is
a simple 2 page document which gives basic financial information and is not
legally binding. By contrast, Form I-864
is several pages long, requires detailed financial information, and is legally
binding. Because of its complexity, and the fact that it is a legally binding
document, processing of the I-864 is a frequent cause of delay in approving
an immigrant visa.
Form I-134 in Detail:
Let’s start our review with the I-134.
The purpose of this form is to help demonstrate that the alien you are sponsoring
will not become a public charge while in the US. The I-134
Affidavit of Support is required in all K-1 and K-3 cases. Even though the
K visas are nonimmigrant visas the applicant is clearly coming to the US to
live permanently. The sponsor must file a separate affidavit for each applicant;
one for the spouse/fiancee, and one for each child that will be traveling with
the fiancée/spouse. You may also be asked by a consular officer to complete
a Form I-134 if he or she has questions about the applicant’s financial
status and ability to pay for their trip.
When you sponsor someone to come the US, whether your fiancée or spouse
to live permanently in the US, or a friend or relative to visit for a short
period, you must show sufficient income or financial resources to support the
applicant. Applicants using the I-134 typically will need to show that their
sponsor's income is 100 percent of federal poverty guidelines. Failure to provide
evidence that shows sufficient income or financial resources may result in denial
of the foreign national’s visa application or if the sponsored person
is in the US his or her removal from the US.
If you are sponsoring more than one foreign national, i.e., your spouse
and step-child, you must submit a separate Form I-134 for each person. Where
you submit the form depends on whether the foreign national you are sponsoring
is in or outside the US, and what type of application is being submitted.
When your Form I-134 is accepted, the consular officer or immigration inspector
will check it for completeness, including whether you have submitted all the
required initial evidence. Failure to completely fill out the form, or file
it without required initial evidence, may result in the denial of the application.
If it is deemed prudent a USCIS officer may request more information or that
you come in for an interview.
NOTE: There is no filing fee or processing fee for the Form I-134.
Form I-864 in Detail:
Now let’s turn our attention to the Form I-864. As we noted above, this
is a much more extensive form, and once filed is legally binding on the sponsor.
The Form I-864 is required if you are bringing a relative to the US, whether
the foreign national is an immediate relative of a US citizen or relatives who
qualify for immigration to the US under one of the family-based preferences.
If you filed an immigrant visa petition for your relative (the I-130)
you must act as their sponsor for Form I-864 purposes.
To act as a sponsor you must be at least 18 years old and a US citizen or
a lawful permanent resident. You must have a domicile in the US or a territory
or possession of the United States. This last requirement usually means you
must actually live in the US, or a territory or possession, in order to be a
sponsor. If you live abroad, you may still be able to be a sponsor if you can
show that your residence abroad is temporary and that you still have a domicile
in the US.
If you, as the petitioner, cannot meet the income guidelines for a sponsor
, you may be able to have either a joint sponsor and/and a substitute sponsor.
As with the Form I-134, the sponsor must show that they have sufficient
income or resources so that the sponsored immigrant will not become a public
charge, i.e., the sponsored immigrant will not have to rely on government assistance.
For the Form I-864 the law requires that a sponsor demonstrate an income level
at or above 125 percent of the Federal poverty line.
Where you file the Form I-864 will depend on where your relative will be filing
for their immigrant visa. If your relative is inside the US and will be filing
for adjustment
of status you should complete, notarize affidavit of support, together with
all the supporting information to your relative to submit with his or her application
for adjustment of status for permanent residence. If your relative is outside
the US, or will be applying for an immigrant visa a US consular office overseas,
you will be given specific instructions to file your affidavit of support directly
with the National Visa Center.
NOTE: A filing fee of $50 is charged to process a Form I-864 which is
submitted to the National Visa Center for applicants processing their immigrant
visas at overseas posts. However, this fee is only applicable for affidavits
of support filed through NVC or overseas posts – it does not apply to
forms submitted to the USCIS for adjustment of status applicants.
The validity of Form I-864 is considered indefinite; beginning from the
date the sponsor files it with the USCIS, the National Visa Center, a US embassy
or consulate.
Enforcement of Form I-864 Affidavit of Support:
If the sponsored immigrant uses federal means tested public benefits, the sponsor
can be held responsible for repaying the cost of the benefits received.
Federal means-tested benefits currently include:
- Food stamps
- Supplemental Security Income (SSI)
- Medicaid
- Temporary Assistance for Needy Families (TANF)
- State Child Health Insurance Program (CHIP)
Conclusion:
An Affidavit of Support is required when you sponsor a relative to live permanently
in the United States, and may be required when you invite other friends and
relatives to visit you in the US. The affidavit of support is designed to demonstrate
that the foreign national you are sponsoring will not become a public charge
while in the United States. Form I-134 is used when the visa sought is a nonimmigrant
visa. Form I-864 is required when the foreign national is applying for an immigrant
visa, either at a US consulate or through adjustment of status with the USCIS.
The way your affidavit of support is completed, and the information attached
to it in support of the information is supplied are critical to the success
of the visa application process.
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The information in this article is not intended to be legal advice. If you
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