The affidavit of support is a promise to financially support the foreign national until the earliest of her (1) attainment of US citizenship, (2) uninterrupted full time work for ten years, or (3) death. All family-based applications for permanent residence require an affidavit of support. Employment-based applications do not, except rarely.
The law lists several requirements regarding affidavits of support:
In the case where the family-based petitioner dies after the I-130 petition is approved, but before submitting an affidavit of support, the Family Sponsor Immigration Act allows a "substitute sponsor" for the I-864. A substitute sponsor is different than a supplemental sponsor. Substitute sponsors must be a relative, but may be an in-law or legal guardian, but may not be more distant in relation than a child-in-law. INA 213A(f)(5)(B). In such cases the I-130 petition is automatically revoked and the beneficiary will need to apply for humanitarian reinstatement. Please see our family immigration page for more information about humanitarian reinstatement.
The petitioner and supplemental affidavit of support sponsors must use form I-864. When an affidavit of support sponsor must use the income of a member of her household to qualify, that household member must sign a form I-864A.
Each affidavit of support sponsor, supplemental sponsor and household member must submit at a minimum:
The first public charge law was enacted by Massachusetts when it was an English colony in 1645. Massachusetts passed a revised law in 1700 requiring those who were "lame, impotent, or infirm... [and] incapable of maintaining themselves" to post a bond. New York enacted a law in 1691 requiring immigrants to have a visible estate or a manual occupation, or to give some surety that they will not be a "burden or charge." Delaware passed a law in 1740 to exclude "any such infant, lunatick, aged, maimed, impotent or vagrant person."
The ratification of the US Constutition gave the federal government exclusive power over immigration starting in 1808. U.S. Const. Art. I, Sec. 9. The first federal law codifying the public charge ground of exclusion was the Immigration Act of 1882, which excluded any immigrant "unable to take care of himself or herself without becoming a public charge."
The Immigration and Nationality Act of 1952 continued an established public charge ground of excluding a foreign national from US residence. A "public charge" is a person who cannot financially support himself and depends on government paid benefits. The public charge exclusion is a highly operative accounting for just less than 90 percent of all State Department denials of immigrant visas. The rule at INA section 212(a)(4) notes that whether a foreign national is likely to become a public charge turns on the "totality of the circumstances" considering especially:
The US Supreme Court has held that Congressional restrictions on immigrants' receipt of welfare benefits is Constitutional. Mathews v. Diaz, 426 U.S. 67 (1976). Because it is lawful for Congress to restrict welfare benefits from non-citizens including healthcare, Congress may lawfully decide whether the receipt of certain benefits renders an alien ineligible for residence, excludable under as a public charge.
Generally, past acceptance of public benefits should not completely disqualify an alien from applying for permanent residence, but it will be necessary to show that the aid was taken for a short period of time a long time ago. The government will consider past acceptance of cash welfare and benefits in ascertaining the likelihood that you will use cash welfare or other public benefits in the future.
The sorts of benefits that are likely to be viewed by the government as creating a public charge problem include:
The sorts of benefits unlikely to be considered for public charge benefits include:
First, any alien who has already worked for forty creditable quarters in the United States (as defined under title II of the Social Security Act) does not need an affidavit of support to adjust status. See USCIS Memo of Michael D. Cronin, May 17, 2001.
Subject to some exceptions, the following groups of applicants generally do not require affidavits of support: