The Affidavit of Support is a very important part of the marriage green card process and is required to be completed by the U.S. citizen spouse regardless of his/her income or assets.
The idea behind the green card affidavit of support is that the U.S. government does not want the foreign national applicant to become a “public charge” (receive “means-tested public benefits” in the U.S.). If it is determined that the foreign national spouse is likely to become a public charge, then the application will not be approved.
The affidavit of support essentially is a contract between the sponsor or sponsors (if a joint sponsor or co-sponsor are involved) and the U.S. government guaranteeing that if the government provides the foreign national with means-tested public benefits during the validity of the affidavit of support contract, then the government can seek reimbursement from the U.S. citizen spouse (primary sponsor) and any joint and co-sponsors.
Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Need Families (TANF), and State Child Health Insurance Program (SCHIP).
The following programs are not included as means-tested benefits: emergency Medicaid; short-term, non-cash emergency relief; services provided under the National School Lunch and Child Nutrition Acts; immunizations and testing and treatment for communicable diseases; student assistance under the Higher Education Act and the Public Health Service Act; certain forms of foster-care or adoption assistance under the Social Security Act; Head Start Programs; means-tested programs under the Elementary and Secondary Education Act; and Job Training Partnership Act Programs.
How does a sponsor meet the minimum financial requirements for the green card affidavit of support?
A sponsor meets the minimum financial requirements of the affidavit of support by providing evidence that he/she has income of at least 125% of the poverty line based on his/her household size.
For example, using the 2016 Poverty Guidelines, if a sponsor’s household consists of him and his wife, then his household size is two and the minimum income amount would be $20,025. If a household is comprised of a sponsor, spouse, and child, then the minimum income amount would be $25,200. A household of 4 has a minimum income requirement of $30,375; household of 5 has a requirement of $35,550; household of 6 has a requirement of $40,725; household of 7 has a requirement of $45,912; household of 8 has a requirement of $51,112; and, if your household happens to be larger than 8, add $5,200 for each individual.
It should be noted that if the sponsor is on active duty in the U.S. Armed Forces and the sponsor is petitioning for their spouse or child, the minimum income amount is based on 100% of the poverty line, so the threshold is lower.
Also, if you live in Alaska or Hawaii, these minimum income amounts are slightly higher.
What is a “sponsor”?
Unless the foreign national is exempt from the affidavit of support requirement (see below), the U.S. citizen spouse will always be the primary sponsor and will have to complete and sign an affidavit of support regardless of his/her financial situation.
If the U.S. citizen spouse does not meet the minimum affidavit of support requirements, then a joint sponsor, and possibly a co-sponsor, might be necessary.
These individuals, who will also sign an affidavit of support, will be liable as per the affidavit of support contract with the government.
What if the U.S. citizen spouse does not have sufficient income to meet the minimum requirement?
If the U.S. citizen spouse does not meet the minimum income requirements of the affidavit of support, then they may be able to use their liquid assets to meet the requirement.
For individuals sponsoring their spouse or child, they need to show that the total value of their liquid assets is at least 3x the difference between the minimum income requirement and the sponsor’s income. If the individual being sponsored is not the sponsor’s spouse or child, then they need to show that their liquid assets have a value of 5x the difference.
It’s important to note that a “liquid asset” is one that can be converted into cash quickly with minimal impact to the value. Common liquid assets are as follows: checking account; savings account; 401K; IRA; investment account; etc. If the sponsor doesn’t have income or sufficient liquid assets, but they do have a non-liquid asset, such as a home, then that may be taken into account only by way of a current appraisal after backing any debt associated with the asset.
What if the U.S. citizen spouse does not meet the minimum income requirement through either income or assets?
If the U.S. citizen spouse does not meet the guidelines, which is quite common, then a joint sponsor will be needed or, in some cases, the income and/or assets of the foreign spouse can be taken into account.
A joint sponsor must be 18 years of age, a U.S. citizen or permanent resident (green card holder), and domiciled in the U.S. A joint sponsor does not need not be related to either the U.S. citizen spouse or the foreign national spouse.
In order to use the foreign spouse’s income and/or assets, the foreign spouse must be in the U.S. in a valid work authorized nonimmigrant status, such as the H1B visa status, the L-1 visa status, the O-1 visa status, or the TN visa status, and it must be shown the foreign spouse is employed and that their employment is likely to continue.
Are there any scenarios where a green card affidavit of support may not be required?
In the green card through marriage context, there is one scenario where an affidavit of support is not required.
That scenario is where the foreign beneficiary spouse has already earned or can be credited with 40 quarters of coverage pursuant to the Social Security Administration regulations. This basically means the foreign beneficiary spouse would have had to have worked in the U.S. for at least 10 years in the aggregate. This may apply to individuals who have been working in the U.S. for extended periods of time in various work visas.
How long does the green card affidavit of support bind the person or persons who sign it?
This is a long term commitment by all who sign an Affidavit of Support.
It is legally enforceable by the government for any means-tested public benefits utilized by the sponsored foreign national, meaning that if the foreign national spouse were to go on welfare, the U.S. government could make the individual/s who signed the Affidavit of Support pay the money back. The obligation to support the foreign national ends when the foreign national becomes a U.S. citizen, has earned 40 work quarters (equivalent to approximately 10 years of working), dies, or permanently leaves the U.S.
Is the affidavit of support a legally enforceable contract?
Yes, the green card affidavit of support is a legally enforceable contract against the affiant (the individuals who sign the affidavit of support) that goes into effect after the sponsored immigrant obtains permanent residence. The sponsor and any joint sponsors are considered to be “jointly and severally liable”.
The affidavit is enforceable by the sponsored person, the local, state or federal government, or any agency providing a means-tested public benefit against the affiant until the obligation no longer continues (see above Q&A).