The Affidavit of Support

by Matthew Bray

The affidavit of support is a critical component to family-based and some employment-based applications for permanent residence (i.e., for a Green Card). The law requires that a petitioner submit an affidavit of support along with their petition for permanent residence on behalf of the foreign national to demonstrate to the satisfaction of US Citizenship & Immigration Services (USCIS) that the petitioner’s income or assets are sufficiently above the federal poverty level. USCIS requires this affidavit to ensure that the immigrant will not come to the US as a permanent resident only to later become a public charge.

The affidavit of support serves as a contract between the petitioner sponsoring the immigrant and the US government in which the petitioner agrees that a US government entity may, under certain circumstances, recuperate from the petitioner any funds that were used to provide the public benefits provided to the immigrant. The idea behind the affidavit of support is that the petitioner, who must be a US citizen or Lawful Permanent Resident (LPR) over eighteen and residing in the US, will be financially supporting the immigrant, if necessary. This is shown by submitting recent tax filings as well as a recent job letter that show annual earnings, along with proof of citizenship or LPR status.

Since the affidavit of support is a contract under which the petitioner essentially agrees that a US government entity can take legal action to recuperate funds, some petitioners are understandably reluctant to sign the affidavit. It is a serious obligation that may only be discharged in certain circumstances. In the case of a married couple where the US citizen or LPR is the petitioner sponsoring the immigrant, the affidavit of support obligations will survive even their divorce—and even if the petitioner has declared bankruptcy! The obligations, however, are discharged when the sponsored immigrant becomes a US citizen, is credited with forty qualifying quarters of work by the Social Security Administration, ceases to be a permanent resident and departs the US, or dies.

On the other hand, since the petitioner can only be held responsible for funds used to provide public benefits to the immigrant, it is important to keep in perspective that many immigrants will not be eligible for many of the most common public benefits that are available. Immigrants who have been in the country for less than five years generally are not eligible for the five federal “means-tested public benefits”: food stamps for adults, Temporary Assistance for Needy Families (TANF), Medicaid (non-emergency), the Children’s Health Insurance Program (CHIP), and Supplemental Security Income (SSI). Most LPRs are eligible for citizenship after five years, so very often any immigrant who may receive benefits may already be a citizen by the time they do, which discharges the affidavit of support obligations.

Some states, however, do offer immigrants state-funded medical, food, or cash assistance without a time limit. For those “means-tested public benefits” for which an LPR immigrant may be eligible, the petitioner-sponsor’s income would be counted in determining whether the immigrant meets the income requirements for eligibility. As the incomes of both immigrant and petitioner sponsor are counted, this counting would usually make the immigrant ineligible for the benefit (though there are exceptions for children, domestic violence survivors, and for certain programs). In addition, the affidavit of support obligations do not apply to non-means-tested benefits, such as emergency Medicaid, short-term noncash emergency aid, school breakfast or school lunch, Head Start, student financial aid, and other non-cash assistance. Given this reality, relatively few immigrants would receive the type of public benefits that would trigger the petitioner obligations under the affidavit of support, and therefore the likelihood of legal action against a petitioner may be relatively low.

Another issue that arises with affidavits of support is showing that the petitioner’s income meets the requirements, which is generally 125% of the federal poverty limit, adjusted by household size. In 2014, 125% of the poverty guidelines for a household of two (which would be the petitioner and the immigrant) was an annual income of $19,662. This is generally shown by providing recent years’ tax returns (with all accompanying schedules) and Forms W-2, or a 1099, or Schedule K-1, for example. A petitioner would also have to provide a currently dated job letter signed by the employer confirming employment and salary. If the petitioner does not earn enough income to meet the guidelines, the petitioner can show that their assets (such as property or bank account) are worth five times the difference between 125 percent of the federal poverty level and their income (or three times this difference, if the petitioner is a US citizen and sponsoring a spouse or child).

A petitioner who cannot meet these requirements may find a “joint sponsor.” The joint sponsor too must be a US citizen or LPR residing in the US, and must execute a separate affidavit of support promising to financially support the immigrant. Even with the joint sponsor, the petitioner must still execute and file the affidavit of support for their sponsored immigrant. The majority of the same rules apply to joint sponsors as apply to the petitioner-sponsor. One exception is that, unlike with married couples, a joint sponsor may be able to discharge an affidavit of support obligation in bankruptcy proceedings where the immigrant is not a relative.

While the affidavit of support is a serious obligation in the nature of a contract—and one which must be taken seriously—it need not be daunting, nor keep a petitioner from pursuing permanent residence for a loved one.