New Affidavit of Support Requirements.

Question: I heard that there are new requirements for the affidavit of support requirements. Can you let me know what they are?

Answer: A person completing an Affidavit of Support (Form I-864) on behalf of an adjustment of status applicant is now only required to file one Federal income tax return, for the tax year that is most recent as of the date the Form I-864 was signed, rather than having to submit a Federal income tax return for each of the three most recent tax years.

Question: Can you clarify exactly what year you must now submit the tax returns?

Answer: For any Form I-485 filed on or after the date of this memorandum, the sponsor shall not be required to file any Federal income tax return for any year other than the tax year immediately preceding the sponsor's signing of the Form I-864. For example, if the sponsor signed the Form I-864 after April 15, 2005, only the sponsor's 2004 Federal income tax return would be required. However, the sponsor may file the three most recent returns if the sponsor believes that the additional returns will make it more likely that the Form I-864 will be found to be sufficient. This rule shall apply to petitioning sponsors, as well as substitute or joint sponsors signing a Form I-864 for an adjustment case.

Question: How does the officer determine the sufficiency of the I-864?

Answer: USCIS officers shall, as a general rule, determine the sufficiency of a Form I-864 based upon whether evidence shows that the annual income at the applicable threshold set forth in the Form I-864P, Poverty Guidelines, from the calendar year in which the Form I-864 was filed. Accordingly, adjudicators will determine whether the current income listed on Form I-864 is at least 125% (or 100% as applicable) of the governing threshold set forth in the Poverty Guidelines. Adjudicators will also determine whether the sponsor's total income (line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 1040A), or adjusted gross income for those who filed IRS Form I040EZ (line 4 of the 2004IRS Form I040EZ), meets the Poverty Guidelines threshold. The adjudicator should request additional evidence (i.e., employment letter(s), pay stub(s), or other financial data) only if the tax return reflects income below the Form I-864P, Poverty Guidelines and the record does not already contain additional evidence that would establish the sponsor meets the current income requirements. The adjudicator should also request additional evidence (i.e., employment letter(s), pay stub(s), or other financial data) if there is a specific reason (other than the passage of time) to question the veracity of the income stated on Form I-864 or the accompanying document(s).

If the officer determines that the tax return and/or the evidence in the file do not establish that the sponsor meets the government Form I-864P, Poverty Guidelines threshold, the adjudicator shall request current year income information, not additional information from the year the sponsor signed Form I-864. In this situation, the sufficiency of the Form I-864 is determined based upon the additional evidence as it relates to the applicable threshold set forth in the Form I-864P from current year rather than the Form I-864P, Poverty Guidelines from the calendar year in which the Form I-864 was signed.

Question: Can each immigration office have a different policy than stated above?

Answer: Previously USCIS has permitted each local office to establish its own policy on whether to require submission of Form I-864 at the time of filing for adjustment or at the time of the adjustment interview. Effective as of now, all applicants are required to submit Form I-864 with their adjustment application.

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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 2^nd, 3^rd, 5th, 6^th, 8^th, 9^th and 11^th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (888) 861-9111 or (562) 495-0554. The Firm website is www.eimmigration.org.