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Revised Requirements for Affidavit of Support - AOS (Form I-864) Processing for Sponsoring Immigrant Visas
Lal Varghese, Attorney at Law, Dallas
The Department of State (NVC & Consulates) in tune with the Department of Homeland Security (USCIS) published rules requiring hat sponsors filing affidavit of support (Form I-864) are needed to submit only their Federal tax return for their most recent tax year, current as of the date of execution of the I-864. The affidavit of support (Form I-864) once submitted will remain valid indefinitely absent other evidence of failure to meet the public charge provisions of the law and should be evaluated based on the poverty guidelines in effect on the date of filing with NVC or with the consulates. The poverty guidelines in effect as of the date of signing the affidavit of support would apply and the consulates are directed to consider the guidelines in effect as of the date the I-864 is submitted. Updated tax returns should not be requested absent positive evidence of public charge issues. The sponsor signature on Form I-864 does not need to be notarized since the sponsor is signing under penalty of perjury. Photocopies of Form I-864 that are submitted for derivative applicants do not require an original signature or notarization. The new guidance is consistent with current DHS requirements which already took effect while filing the application for adjustment of status by those who are physically present in U. S and is eligible to apply for permanent resident status in U. S.
DHS has recently changed its guidance on handling I-864 Affidavits of Support. To make Department and DHS guidance consistent, and the requirements more immediately useful, the Department is changing some of the requirements that apply in determinations of whether a sponsor filing a Form I-864, "Affidavit of Support Under Section 213A of the Act", has demonstrated the means to maintain income at a level to establish that an immigrant visa applicant is not excludable as a public charge. Previously, a sponsor was required to provide copies of Federal income tax returns for the three most recent taxable years as of the filing of the visa application, along with evidence of current employment. Posts required updated income information for the sponsor if the Form I-864 had been filed more than one year prior to the visa interview. Consular officers determined whether a sponsor's income was sufficient by considering the Federal poverty guidelines in effect at the time of visa adjudication.
Effective immediately, income as of the time the Form I-864 was signed should be considered on the basis of the poverty guidelines that were in effect when the Form I-864 was submitted in support of an immigrant visa application. The sponsor is required to submit with the I-864 an IRS transcript or photocopy of only the most recent Federal income tax return. However, the sponsor may, at his or her option, submit Federal income tax returns for the three most recent years if the sponsor believes these additional tax returns may help establish the sponsor's ability to maintain his or her household income at the applicable threshold set forth in the poverty guidelines. The sponsor, by signing the Form I-864 under penalty of perjury, certifies that the transcript or photocopy is true and correct. This certification meets the statutory requirement of presenting a "certified" copy and, per 28 U.S.C. 1746, the requirement that the affidavit of support be sworn or affirmed before a notary, consular officer, or immigration officer.
Consulates should not require an employment letter except in cases where there is a specific reason to question the veracity of the income stated. The consular officer is to determine whether the income stated by the sponsor and documented in the tax return and any other evidence meets the poverty guidelines in effect as of the time of the I-864 was filed with NVC or with the consulate. If the consular officer determines either that the sponsor's income as of the time the I-864 was signed does not meet the guidelines or that the facts of the case, as supported by evidence in the record, provide a specific reason other than the passage of time, then they should request current year income information and base the determination of the sufficiency of the I-864 upon the additional evidence as it relates to the poverty guidelines for the current year. In addition, the Department has determined that the validity of the I-864 should be considered indefinite starting from the date the sponsor signs it. Consular offices will no longer be required to ask for new affidavits or updated tax returns simply due to long processing delays between the date of signature and the date of the visa interview. This applies to all petitioning sponsors, as well as substitute or joint sponsors signing a Form I-864 for an adjustment of status case in U. S with the USCIS.
In addition to the change in the number of tax returns, the Department is revising other I-864 requirements, consistent with the DHS policy memorandum. Consular officers should no longer refuse applicants under INA 221(g) for failing to provide the three most recent federal tax returns. The sponsor's most recent Federal tax return as of the date the Form I-864 is signed (not the date of the Immigrant Visa application) is the only one necessary. The consular officer should determine whether or not the income on the most recent tax return, at the time of the sponsor signing the AOS, is sufficient to meet the poverty guidelines that were in effect at the time that the Form I-864 was submitted in support of the Immigrant Visa application.
If the case was processed through NVC, this would be the time the AOS was submitted to NVC. If the information on the tax return establishes that the sponsor's income meets the poverty guidelines for the year the I-864 was filed, the consular officer should determine that the I-864 is sufficient without requesting any further evidence. However, the consular officer may require additional evidence of income in cases where the consular officer concludes either that the income information fails to meet the standards as of the time the I-864 was signed, or there is a specific reason other than the passage of time for the consular officer to question whether the income information provided in the I-864 or other supporting documents is accurate.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You can reach Lal Varghese, Attorney at Law at (972) 788-0777 or (972) 788-1555 Fax (972) 556-1109 or at e-mail: attylal@aol.com, for a free consultation on this subject matter. You can visit our website at: www.indiaimmigrationusa.com for more information about other related immigration matters.
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