Five Common Mistakes when Completing the I-864

New York, Downtown ManhattanCompleting immigration forms can be a complicated process. Form I-864, Affidavit of Support, often generates questions and requests for assistance. Increased scrutiny by the National Visa Center often results in more Requests for Evidence, which can be time consuming and delay your overall visa process.

Here are five common mistakes to avoid when completing Form I-864.

#1. Enter anticipated income, not what the sponsor paid in taxes last year.

Form I-864 in Part 6, line 5, asks the sponsor to indicate his or her “current individual annual income.” What does this mean?

“Current” refers to the amount he or she anticipates earning this calendar year. The sponsor should take what he or she is currently earning and use that figure to determine what he or she is likely to have earned by the end of the year.

“Individual” means you only report what the sponsor himself or herself is planning to earn, not what the sponsor and his/her spouse are earning jointly.

“Annual” means what the sponsor is likely to earn this year. This figure, supplemented with any additional household members’ income on Part 6, line 10, will determine if the sponsor’s income is sufficient for his or her household size. 

(If the anticipated income is more than the sponsor paid taxes on last year, then include proof to support your estimate, such as pay stubs and a letter from their employer.)

“Income” includes both taxable and nontaxable income, including certain federal or state benefits. 

For example, include things like Social Security retirement or disability, unemployment or workers’ compensation, but do not include Supplemental Security Income (SSI) for the aged, blind or disabled, and do not include Temporary Assistance for Needy Children (TANF).

#2. Put down exactly what the sponsor reported in taxes last year.

Form I-864 in Part 6, line 13a-c, asks for the sponsor’s “total income … as reported on my federal tax returns for the most recent three years.” This is where you need to take the income reported on line 22 of last year’s 1040 and put that figure in line 13a. It’s OK if this figure is joint income and therefore much higher than what was reported on line 5. The NVC will return the I-864, however, if the reported income on the tax return is different from what is indicated in line 13a. 

Q: What if the sponsor needs the income of his or her spouse to satisfy the 125% poverty requirement?

A: The spouse will complete an I-864A and will include his or her income on Part 6, line 6c.

Q: What if the sponsor is self-employed?

A: The sponsor should not use gross income that is reported in Schedule C, but use the adjusted gross income reported in line 22 of the 1040, after all deductions have been made.

#3. Calculate household size according to the regulations.

The rules are very specific as to who must be included in the household size. You must count:

  • the sponsor,
  • the sponsor’s spouse,
  • the sponsor’s unmarried children under 21,
  • anyone counted as a dependent on the last tax return,
  • the intending immigrant, and
  • any derivatives who are accompanying the principal beneficiary.

    The term “accompanying” means they are immigrating at the same time or within six months of the principal beneficiary. So, you can use this definition of the term to stagger the immigration of the spouse or derivative children if it is necessary to lower the household size. 

For example, if I am immigrating my brother, I do not have to include his wife and three children if they are going to immigrate more than six months after my brother.

The other thing to keep in mind is that you do not have to count as part of the household size anyone for whom you filed a separate I-130 petition. 

While you DO have to count them if they have already immigrated based on an I-864 you filed, you do NOT have to count them if they are immigrating together with the person you filed a separate petition for

Q: So if I am a U.S. citizen, over 21, and I have petitioned for both my parents to come to the U.S., how many do I count in my household if I am single?

A: If you are single with no children, then you only count the intending immigrant for whom you are filing the I-864. In the case of your mother then, your household size would be two (yourself and your mother).

Q: What about when I’m completing the I-864 for my father, who is immigrating with my mother?

A: Because you only count the intending immigrant for whom you are filing, your household size is still two.

#4. Only include assets if income is insufficient.

Assets must be “significant” and able to be converted into cash within one year. Basically, significant assets are things like money in a bank account, stocks or bonds, and the value of any real estate.

The value of the assets must be five times the shortfall income, unless a U.S. citizen is sponsoring his or her spouse or minor child. In that case, the assets must total only three times the shortfall.

#5. Joint sponsors.

The nice thing about the affidavit of support requirement is being able to use someone who does have sufficient income to sponsor the intending immigrant. This person could be anyone, provided they are a lawful permanent resident (LPR) or U.S. citizen, over 18, and domiciled in the United States.

Whenever the petitioning sponsor requires a joint sponsor, however, his or her income becomes irrelevant. In other words, the petitioning sponsor, while still required to submit an I-864, is not able to sponsor any of the intending immigrants.

Measure household size for the joint sponsor just as you would for the petitioning sponsor, and calculate income in the same manner.

The best way to ensure your I-864 does not contain any errors is to retain an attorney to help you file the application. If you are interested in obtaining a marriage-based or family-based green card, please contact our office to schedule a consultation today!

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