Form I-864 Affidavit of Support
Form I-864 is a legally enforceable contract required for most family-sponsored adjustment applicants and certain employment-based applicants. The petitioning sponsor ordinarily must submit Form I-864 even when the sponsor has little or no income and a joint sponsor is needed. The sponsor generally must be at least 18, be a U.S. citizen, U.S. national, or lawful permanent resident as permitted by the statute, be domiciled in the United States, and demonstrate sufficient household income or qualifying assets under the current poverty guidelines.
Who needs Form I-864?
By signing Form I-864, the sponsor enters a legally enforceable support contract under INA §213A. The form is therefore both an adjustment document and a continuing legal obligation.
Family-sponsored immigrants
Form I-864 is ordinarily required for:
- Spouses of U.S. citizens;
- Parents of U.S. citizens;
- Children of U.S. citizens;
- F1 beneficiaries;
- F2A beneficiaries;
- F2B beneficiaries;
- F3 beneficiaries;
- F4 beneficiaries; and
- Qualifying derivatives in family-preference categories.
K-1 and qualifying K adjustment
A K-1 adjusting after the qualifying marriage is generally treated as subject to the enforceable affidavit-of-support requirement.
The original U.S. citizen Form I-129F petitioner ordinarily supplies the petitioning sponsor's Form I-864.
A joint sponsor can supplement insufficient income where permitted, but generally does not replace the requirement that the original petitioning sponsor submit Form I-864.
Some employment-based applicants need Form I-864
Most employment-based adjustment applicants do not use Form I-864.
However, Form I-864 can be required where:
- A U.S. citizen, U.S. national, or lawful permanent resident relative filed the employment-based immigrant petition; or
- Such a relative has a significant ownership interest in the entity that filed the employment petition.
The I-864 instructions use an ownership threshold of five percent or more for this purpose.
An employment-based Form I-485 should not automatically be treated as exempt from Form I-864 when the petitioning business is substantially connected to a qualifying relative.
The petitioning sponsor generally must file Form I-864
If Form I-864 is required, the petitioning sponsor normally must submit the affidavit even when the sponsor:
- Has no income;
- Has income below the poverty guideline;
- Is unemployed;
- Is retired;
- Lives temporarily abroad;
- Needs a joint sponsor; or
- Relies on household-member income or assets.
Failure of the petitioning sponsor to submit the required Form I-864 cannot ordinarily be cured merely by providing a financially strong joint sponsor.
Sponsor eligibility
A petitioning or joint sponsor generally must:
- Be at least 18 years old;
- Have the required U.S. citizenship, nationality, or lawful permanent resident status;
- Be domiciled in the United States; and
- Sign a properly completed Form I-864.
The sponsor must also satisfy the financial requirements or properly rely on qualifying income and assets.
U.S. domicile
Domicile means the sponsor's principal residence with the intention to maintain that residence for the foreseeable future.
A sponsor living abroad can sometimes establish U.S. domicile by showing:
- The foreign residence is temporary;
- The sponsor maintained U.S. domicile while abroad; or
- The sponsor will reestablish U.S. domicile no later than the intending immigrant's admission or adjustment as required by the governing rules.
Evidence can include:
- U.S. residence;
- Employment;
- Tax filings;
- Bank accounts;
- Property;
- Voting records;
- Driver license;
- Job offer;
- Moving arrangements; and
- Other evidence of actual U.S. domicile.
If the petitioning sponsor is required to file Form I-864, the petitioner must independently satisfy the domicile requirement.
The general income threshold is 125% of the poverty guideline
The sponsor ordinarily must demonstrate household income at or above 125 percent of the applicable Federal Poverty Guidelines.
The exact figure changes based on:
- Household size;
- Year of filing;
- State or territory of residence under the applicable guideline table; and
- Any special active-duty military rule.
The current poverty guideline should be checked at the time the affidavit is prepared.
Active-duty military exception
A reduced 100-percent poverty-guideline standard can apply to a qualifying sponsor on active duty in the U.S. Armed Forces who is sponsoring the sponsor's spouse or child.
The filing should establish:
- Active-duty status;
- Qualifying military branch;
- Relationship to the intending immigrant; and
- Current income.
The special rule should not be applied merely because the sponsor is a veteran or previously served.
Household size
Household size directly affects the income requirement.
The calculation can include:
- Sponsor;
- Sponsor's spouse;
- Dependent children;
- Other dependents claimed as required by the form;
- Intending immigrants being sponsored;
- Persons previously sponsored under still-enforceable Forms I-864; and
- Other persons required under the current form instructions.
Household size is defined by the Form I-864 rules and can differ from the number of people physically living in the sponsor's home.
Federal tax evidence
The sponsor generally must provide the tax evidence required by the current Form I-864 instructions.
A strong filing can include:
- IRS tax transcript;
- Federal tax return where appropriate;
- W-2s or 1099s where necessary;
- Evidence of filing extensions;
- Explanation of lawful nonfiling where the sponsor was not required to file; and
- Evidence resolving inconsistencies between tax records and claimed income.
Failure to file tax returns when legally required can create an I-864 evidence problem.
Current income matters
Tax returns show historical income. Form I-864 also requires evaluation of current income.
Evidence can include:
- Recent pay statements;
- Employment verification;
- Employment contract;
- Current salary records;
- Pension statements;
- Social Security income;
- Retirement distributions;
- Self-employment records; and
- Other lawful continuing income.
A sponsor whose income recently increased or decreased should document present income clearly rather than rely on a tax figure that no longer reflects reality.
Self-employment income
A self-employed sponsor may need more evidence than a traditional employee because gross business receipts are not the same as personal household income.
Useful evidence can include:
- Tax transcript;
- Schedule C;
- K-1 schedules;
- Corporate or partnership returns;
- Profit-and-loss statement;
- Business bank records;
- Payroll records;
- Contracts;
- Invoices; and
- Evidence of continuing business operations.
The objective is to establish reliable current income available to the sponsor, not merely company revenue.
Household-member income and Form I-864A
Qualifying household-member income can sometimes be combined with the sponsor's income.
The household member may need to execute Form I-864A, Contract Between Sponsor and Household Member.
Potential contributors can include:
- Sponsor's spouse;
- Other qualifying household relatives;
- Dependents; and
- The intending immigrant in circumstances allowed by the regulations and instructions.
Living in the same house does not by itself permit every person's earnings to be counted. The contributor and income must satisfy the Form I-864 rules.
Joint sponsors
If the petitioning sponsor cannot meet the financial threshold, a qualifying joint sponsor can be used in appropriate cases.
A joint sponsor must independently:
- Meet sponsor age requirements;
- Have qualifying citizenship or permanent resident status;
- Be domiciled in the United States;
- Meet the applicable income requirement for the joint sponsor's household and sponsored immigrants; and
- Sign a separate Form I-864.
A joint sponsor does not need to be related to the intending immigrant.
Assets
Qualifying assets can sometimes overcome an income shortfall.
Assets generally must be:
- Owned by a qualifying person;
- Documented;
- Available for support of the intending immigrant;
- Readily convertible to cash within the period specified by the instructions; and
- Valued net of liens or other liabilities.
Potential assets include:
- Cash savings;
- Stocks and bonds;
- Certificates of deposit;
- Net real-estate equity; and
- Other qualifying liquid assets.
The amount of assets needed to cover an income shortfall can differ for spouses and children of U.S. citizens and certain other applicants. Use the current Form I-864 instructions rather than applying a single multiplier to every case.
The sponsor's obligation is enforceable
Form I-864 creates contractual obligations enforceable under INA §213A.
The sponsored immigrant can potentially enforce the support obligation, and government agencies can have reimbursement rights for specified means-tested public benefits.
The legal obligation can continue for years after permanent residence and can be enforced independently of whether the sponsor and immigrant remain on good terms.
Divorce does not end the I-864 obligation
A sponsor's support obligation does not terminate merely because the sponsor and sponsored immigrant divorce.
This is particularly important in:
- Marriage-based adjustment;
- K-1 adjustment;
- Post-divorce enforcement litigation; and
- Cases where spouses assume divorce automatically cancels the immigration sponsorship contract.
Divorce can affect the immigrant's adjustment basis before permanent residence, but it is not itself a terminating event for an already effective I-864 support obligation.
When does the support obligation end?
The obligation generally continues until a statutory terminating event occurs.
Common terminating events include the sponsored immigrant:
- Becoming a U.S. citizen;
- Being credited with 40 qualifying quarters of Social Security coverage;
- No longer being a lawful permanent resident and permanently departing the United States as contemplated by the regulations;
- Obtaining a new grant of adjustment in removal proceedings based on a new affidavit where the governing rule applies; or
- Dying.
The sponsor's death also affects future contractual obligations under the governing statute and regulations.
The end of the marriage does not by itself terminate the enforceable sponsorship obligation.
Example: petitioner has no income
A U.S. citizen petitions for a spouse but is a full-time student with no income. The citizen still generally submits the required petitioning sponsor Form I-864. A qualifying joint sponsor may provide a separate Form I-864 to satisfy the financial requirement.
Example: sponsor lives abroad
A U.S. citizen has lived abroad with the intending immigrant spouse for several years and plans to return to the United States when adjustment or immigrant processing is complete. The I-864 package must establish U.S. domicile or concrete steps to reestablish domicile under the governing rules. A financially qualified joint sponsor cannot independently cure the petitioning sponsor's failure to satisfy the domicile requirement.
Form I-864 checklist
- Confirm Form I-864 is required.
- Use the current edition.
- Petitioning sponsor completes Form I-864.
- Confirm sponsor is at least 18.
- Confirm qualifying citizenship or LPR status.
- Establish U.S. domicile.
- Calculate household size correctly.
- Check current poverty guidelines.
- Provide required federal tax evidence.
- Document current income.
- Document self-employment income where applicable.
- Use Form I-864A where required for household income.
- Add a joint sponsor where needed.
- Document qualifying assets where relied upon.
- Resolve tax-return or income discrepancies.
- Use substitute sponsorship procedures where legally permitted after petitioner death.
Common Form I-864 mistakes
Joint Sponsor Replaces Petitioner
The petitioner's required affidavit is omitted because a wealthier joint sponsor submitted one.
Wrong Household Size
Prior sponsored immigrants or required dependents are omitted from the calculation.
No Domicile Evidence
A petitioner living abroad submits income evidence but does not establish U.S. domicile.
Using Gross Business Revenue
A self-employed sponsor treats company receipts as personal qualifying income.
Old Poverty Guideline
The filing uses an outdated threshold instead of the guideline applicable when the affidavit is evaluated.
Assuming Divorce Cancels I-864
The parties incorrectly treat dissolution of the marriage as termination of the statutory support contract.
Primary authorities
Related INA245.com guides
Frequently asked questions
Does the petitioner need Form I-864 if a joint sponsor is used?
Generally yes. The petitioning sponsor ordinarily must submit Form I-864 even when a joint sponsor is needed to meet the financial requirement.
How much income does the sponsor need?
The general standard is 125 percent of the applicable Federal Poverty Guidelines for the sponsor's household size, subject to a special rule for certain active-duty military sponsors of a spouse or child.
Can assets be used?
Yes in qualifying cases. The assets must satisfy the current Form I-864 rules concerning ownership, availability, liquidity, net value, and the amount required to overcome the income shortfall.
Can the petitioner's spouse's income be counted?
Potentially. Qualifying household-member income can be counted when the governing requirements are satisfied, often through Form I-864A.
Can the sponsor live outside the United States?
A sponsor must satisfy the U.S. domicile requirement. Some sponsors temporarily abroad can establish continuing domicile or concrete steps to reestablish domicile under the applicable rules.
Does divorce terminate Form I-864?
No. Divorce is not a statutory terminating event for the enforceable Affidavit of Support obligation.
Form I-864 is both an immigration requirement and an enforceable financial contract, so getting the sponsor analysis right matters beyond the green card interview.
The Messersmith Law Firm, P.A. represents adjustment applicants in matters involving Form I-864, sponsor income, domicile, joint sponsors, household income, assets, public-charge issues, RFEs, NOIDs, and complex Form I-485 eligibility.
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