When Don’t You Need an Affidavit of Support to Get a Green Card?

When Don’t You Need an Affidavit of Support to Get a Green Card By Claudia Slovinsky{5:36 minutes to read} The Affidavit of Support (Form I-864) is a requirement for most family-based green card cases and some employment based green card applications. It is a legally enforceable contract to ensure that the green card applicant—the family member applying for his/her green card—will have adequate means of financial support and is unlikely to become a “public charge” after entering the United States. A “public charge” refers to a person who becomes reliant on the government for certain public assistance or benefits. An applicant for a green card must prove that he or she is not likely to become a public charge, otherwise he or she will be found to be inadmissible to the United States.

In order for the petitioner to execute a valid Affidavit of Support, he or she must be over the age of 18 and domiciled in the U.S. They must also demonstrate that they have enough income and/or assets to support the family member applying for his/her green card and the rest of the petitioner’s household at 125% of the Federal Poverty Guidelines. For example, for a total of 4 people, the amount of income that must be shown is $24,300 per year. (Annual Update of the HHS Poverty Guidelines)

In some cases, the petitioner may not have enough income or assets to meet this requirement. The intending immigrant is then often urged to find a joint sponsor to execute an additional Affidavit of Support. But signing on as a joint sponsor is not risk-free since the Affidavit of Support is intended not only to allow for the immigrant to obtain financial support from the petitioner, but also allows any government agency that provides the immigrant with certain types of financial assistance in the future to demand reimbursement from the petitioner and/or the joint sponsor. Because of this potential financial exposure to the petitioner and any joint sponsor, care should always be taken to determine if there are any exceptions to the Affidavit of Support requirement which apply to the case.

There are four ways that the intending immigrant can be exempt from the Affidavit of Support requirement:

  1. He/she has earned (or can be credited with) 40 quarters (credits) of coverage under the Social Security Act (SSA);
  2. He/she is under 18, unmarried, immigrating as the child of a U.S. citizen, and will, upon his/her admission to the United States, automatically become a U.S. citizen under the Child Citizenship Act of 2000;
  3. He/she is filing for an immigrant visa or adjustment of status as a self-petitioning widow(er) using Form I-360; or
  4. He/she is filing for an immigrant visa or adjustment of status as a battered spouse or child using Form I-360.

The first exception, having 40 quarters of coverage under the Social Security Act, is one that should be explored for any intending immigrant who has already lived and worked in the United States, even if some or all of that work was performed without work authorization. The intending immigrant will need to have worked for at least 10 years in the U.S. using a valid Social Security number. The key document to figuring out whether he/she has earned 40 quarters is the Social Security Statement, which can be accessed by creating a “My Social Security” account.

Generally speaking, one earns four credits a year if he/she earns above approximately $5,000 per year. Therefore, one would need to make $5,000 per year for 10 years to earn the 40 quarters. Notably, the intending immigrant can be credited with the quarters worked by his/her spouse during a marriage, or by a parent during the time the intending immigrant was under 18. The intending immigrant may also combine his/her credits with that of his/her spouse or parent, if neither the intending immigrant nor his/her spouse or parent has enough of their own credits. However, if the intending immigrant uses credits for quarters worked by his/her spouse or parent, he/she cannot use any credits earned in quarters in which his/her spouse or parent was receiving means-tested public benefits.

Submitting an Affidavit of Support in an immigration case is a serious matter potentially resulting in significant financial detriment. For this reason, all possible exceptions to the requirement of its submission should be explored.

Claudia Slovinsky

Claudia Slovinsky
Principal and Founder
Claudia Slovinsky and Associates, PLLC
The Woolworth Building
233 Broadway, Suite 2005
New York, N.Y. 10279
(212) 925-0101
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