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 a financial affidavit of support. The big question for all four is ’which financial affidavit of support do I need to file?’ I-134 or I-864?
I-134 or I-864?
Petitioners and visa applicants are often confused about which Affidavit of Support they need to complete and submit – Form I-134 or 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 petitions, including immediate relatives, 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 a previous incarnation 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; 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.
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.
Form I-134 Affidavit of Support in Detail
Let’s start our review with the I-134 Affidavit of Support. 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 applicants are 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 financial status and ability to pay for their trip of an applicant for a different nonimmigrant visa.
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, either you or the applicant must show sufficient income or financial resources to support the applicant for the trip.
Evidence of Sufficient Income: 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.
Submission of Form: 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.
Filing Fee:There is no filing fee or processing fee for the Form I-134 Affidavit of Support.
Form I-864 Affidavit of Support in Detail
Now let’s turn our attention to the other financial affidavit of support - 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.
Who can be a sponsor? To act as a sponsor you must be at least 18 years old and a U S citizen or a lawful permanent resident. You must have a domicile in the U S or a territory or possession of the United States. T his last requirement usually means you must actually live in the U S , 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 U S. .
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 .
- Joint sponsor:When the primary sponsor cannot meet the income requirements, a joint sponsor who can meet the income requirements may submit an I-864 to sponsor all or some of the petitioned family members.
- Substitute sponsor:A substitute sponsor related to the intending immigrant may be used and file a From I-864 in place of a petitioner who has died.
Exceptions to sponsorship requirement: As with all things in life, there are exceptions to the sponsorship requirements. There is no need to submit a Form I-864 Affidavit of Support if the intending immigrant can show either:
- the intending immigrant has already worked, or can be credited with, 40 qualifying quarters as defined in Social Security Act, or
- that the intending immigrant is the child of a US citizen and that the intending immigrant would automatically acquire citizenship under section 320 of INA, as amended by the Child Citizenship Act of 2000, upon admission to the US.
Evidence of sufficient income: 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.
Submission of Form: 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 give the completed, notarized 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 financial affidavit of support directly with the National Visa Center.
Filing Fee: A filing fee of $70 is charged to process a Form I-864 which is submitted to the National Visa Center or State Department Consulates 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 UCIS, 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)
- Temporary Assistance for Needy Families (TANF)
- State Child Health Insurance Program (sCHIP)
A Financial 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.
How your affidavit of support is completed, and the information attached to it in support of the information supplied is critical to the success of the visa application process.
If you have any queries about which financial affidavit of support you need to file, contact a VisaPro Immigration Attorney. We will be happy to guide
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