Meanwhile, there has been a great deal of discussion surrounding the administration’s implementation of new public charge rules in relations to immigrant visas for the USA. It is clear that there will be a direct impact upon those who are seeking family based immigrant and non-immigrant visas to the United States. For example, those seeking a CR-1 visa or an IR-1 visa will need to deal with the DS-5540 Public Charge Questionnaire when undertaking Consular Processing of their cases at the US Embassy or US Consulate in the jurisdiction in which the applicants reside. Concurrently, it is also clear that those who travel to the United States on a K-1 visa or a K-3 visa will need to deal with the I-944 form as part of the implementation of public charge adjudication during adjustment of status to lawful permanent residence (a.k.a. “Green Card” status”).

A question posed to this blogger recently: When seeking a K visa abroad, will I need to fill out a DS-5540? The answer to this question is not overly clear at first glance. This blogger did some research and came upon the following information in the Foreign Affairs Manual:

9 FAM 302.8-2(B)(4) (U) Applying INA 212(a)(4) to Nonimmigrants

d. (U) Alien Seeking Admission as K Nonimmigrants: K nonimmigrants and their petitioners are not permitted to complete form I-864. You may request a K applicant complete Form DS-5540 to assist in evaluating likelihood of becoming a public charge. Note that K applicants will again be assessed under the public charge ineligibility by USCIS at the time of adjustment of status where the K nonimmigrant seeking adjustment of status will be required to submit a Form I-864.

It is clear that non-immigrant visas are not the same thing as immigrant visas, but K visas are an odd hybrid creature in the immigration world and their posture in these matters can be somewhat fluid. Note that the FAM states the adjudicating officer “may request a K applicant complete Form DS-5540,” but it is not required. Meanwhile, it goes on to note that the applicant is not allowed to file an I-864 and that the issue of public charge we be adjudicated again at the adjustment of status phase of the process. Is this wording designed to allow American Embassies and Consulates leeway to not require K visa applicants to file a DS-5540? Perhaps, the practical implications of the public charge rule at the US Embassy in Thailand, Laos, and Cambodia remain to be personally witnessed by this blogger, but rest assured as soon a there is further clarification we will follow up on those developments.

When determining whether or not an American spouse or fiance can support a foreign spouse or fiance the adjudicating officer will first look to the American’s adjusted annual income on his or her income tax return. In order to meet the minimum eligibility requirements the American spouse or fiance must earn 125% of the federal poverty guidelines for a family of their size. The current federal poverty guidelines for the 48 contiguous States as well as Alaska and Hawaii can be found below (as quoted from the official website of Housing and Human Services):

SOURCE: Federal Register, Vol. 78, No. 16, January 24, 2013, pp. 5182-5183

Those wishing to ascertain whether they are eligible to sponsor their foreign fiance or spouse should use the above figures to determine 125% of the poverty guidelines for a family of their size (including the foreign family member(s)). It should be noted that active duty members of the United States Armed Forces must only meet 100% of the federal poverty guidelines in order to be eligible to sponsor a foreign fiance or spouse. Those unable to meet the 125% income level noted above may be able to use assets to offset the difference between their level of income and the 125% requirement. For affidavit of support purposes, a prospective sponsor of a Thai fiancee or wife can make up the difference in income between what is actually earned and what is legally required by providing evidence of assets which equal 5 times the difference between what a prospective sponsor earns and the level required by law. Thus, if a prospective sponsor fall short of the 125% level by 5,000 USD, then the prospective sponsor can show proof of assets in the amount of 25,000 USD in order to overcome the disparity.

It may also be possible to use the income and assets of a joint sponsor if the person petitioning for the foreign national’s visa is unable to overcome the income and asset requirements. It should be noted that only the I-864 affidavit of support (that used in cases involving the application for a CR-1 visa or an IR-1 visa) may utilize a joint sponsor. Those seeking a K-1 visa are not eligible to use a joint sponsor, therefore, only the American Citizen fiance’s income and assets will be adjudicated during the K1 visa application process. In the past, Consular Officers at the US Embassy in Bangkok were known to accept joint sponsors in K-1 visa application adjudications. However, as of the time of this writing that practice has ceased.

Those interested in learning more on these topics are encouraged to click on the following link: Affidavit of Support.

In determining inadmissibility, USCIS defines “public charge”as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Those reading this blog are encouraged to click on the hyperlinks above to read more and gain insight into the issues associated with the I-864 affidavit of support.

It should be noted that the issues associated with the I-864 affidavit of support are significant and should not be overlooked by those seeking immigration benefits. Furthermore, the issues associated with the I-864 affidavit of support pertain not only to USCIS in the United States, but also impact the Consular processing phase of U.S. Immigration process for those who are seeking United States immigrant visas, such as the IR-1 visa and the CR-1 visa, abroad. Meanwhile, seekers of visas such as the K-1 visa (for fiancees of US Citizens) must submit a similar document to a US Embassy or US Consulate abroad in the form of an I-134 affidavit of support. Bearing this in mind, the reader should take note of the fact that the issues surrounding the I-864 affidavit of support are likely to come to the forefront for K-1 visa holders when they eventually apply for adjustment of status to lawful permanent residence.

There was an interesting notation on the aforementioned website:

Note: In general, lawful permanent residents who currently possess a “green card” cannot be denied U.S. citizenship for lawfully receiving any public benefits for which they are eligible.

The reader is encouraged to bear in mind the fact that the above quotation is speaking in generalities, but the issue of naturalization in the context of the affidavit of support may be of interest to Americans thinking about bringing a loved one to the USA. The reason that Americans may find the issue of naturalization interesting when discussing family immigration stems from the fact that upon a foreign spouse’s naturalization to US Citizenship, the encumbrances placed upon the American Citizen within the provisions of the affidavit of support are extinguished as upon becoming a United States Citizen a previous foreign national becomes eligible in their own right for government benefits (where applicable). Therefore, the previous sponsor(s) are no long liable to the United States government should the newly-naturalized citizen take government benefits.

For related information please see: Certificate of Citizenship or Child Citizenship Act.

“Congress has taken action to keep the 2009 poverty guidelines in effect until at least March 31, 2010.

Congressional actions on this matter have been in response to a decrease in the annual average Consumer Price Index (CPI-U) for 2009, projected during 2009 and announced on January 15, 2010 (see http://www.bls.gov/news.release/archives/cpi_01152010.pdf, Table 1A). In the absence of legislative change, this decrease–the first since the poverty guidelines began to be issued in 1965–would have required HHS to issue 2010 poverty guidelines that were lower than the 2009 poverty guidelines; that would have led to the “reduction in eligibility” referred to in the Congressional explanatory language quoted below. Congress took several actions on this matter:

1. On December 19, 2009, Congress enacted and the President signed the Department of Defense Appropriations Act, 2010 (Pub. L. 111-118), which included a provision affecting the poverty guidelines. Section 1012 of this law (as originally enacted, before subsequent amendment) stated that:

Notwithstanding any other provision of law, the Secretary of Health and Human Services shall not publish updated poverty guidelines for 2010 under section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (42 U.S.C. 9902(2)) before March 1, 2010, and the poverty guidelines published under such section on January 23, 2009, shall remain in effect until updated poverty guidelines are published.

The Congressional Record (House) (December 16, 2009, p. H15370) provided the following explanation of this Congressional action in Pub. L. 111-118:

Section 1012 includes a provision to freeze the Department of Health and Human Services poverty guidelines at 2009 levels in order to prevent a reduction in eligibility for certain means-tested programs, including Medicaid, Supplemental Nutrition Assistance Program (SNAP), and child nutrition, through March 1, 2010.

A Federal Register notice about this initial extension of the 2009 poverty guidelines was published on January 22, 2010. (See Federal Register, Vol. 75, No. 14, January 22, 2010, pp. 3734-3735.)

2. On March 2, 2010, Congress enacted and the President signed the Temporary Extension Act of 2010 (Pub. L. 111-144), which included a provision affecting the poverty guidelines. Section 7 of this law amended Section 1012 of the Department of Defense Appropriations Act, 2010, by replacing “March 1, 2010” with “March 31, 2010”. The effect of this was to extend the 2009 poverty guidelines until at least March 31, 2010.”

The issue of one’s ability to provide support to a foreign national is extremely important. Currently, the Federal poverty guidelines appear to still be those of the year 2009 as there is no word that new guidelines will be promulgated. Therefore, those who have an interest in the current guidelines would be wise to keep checking up on this issue as we are due for either a new extension of the 2009 guidelines or a new set of guidelines for 2010.

For further information please see: K1 Visa Requirements.

In order to sponsor a traveler to the United States, one must first decipher the type of visa the traveler will be using. In the case of Non-Immigrant visas (F1 student visa, J1 exchange visa, or B1 Business Visa) the applicant must be able to prove that they or their sponsor will be able to pay the expenses related to the trip. In the case of F1 and J1 visas, the applicant must show that they will also fully pay for their educational endeavors or their exchange program. In some cases, the J1 visitor must reimburse the public education system where they stay in order to obtain the J1 visa.

In the case of United States Immigrant IR1 and CR1 visas for family members from Thailand, the American Citizen must show that they meet the income or financial requirements in order to act as sponsor for their loved one. The basic concern of the Consular officer revolves around the notion that the Immigrant could become a “public charge,” if the American Citizen does not have the resources to pay for the foreign spouse. An I-864 affidavit of support is used to assist in determining if the American is capable of sponsorship.

The K1 visa is a combination of the non-immigrant and immigrant visas. That being said, an affidavit of support must be filled out by the American Citizen. The difference between the I-134 and I-864 is the fact that the I-864 is more legally binding with regard to the sponsor. If the foreign entrant ever becomes a ward of the state, then the sponsor could be forced to reimburse the American government for the expenses the foreign national incurs. The K3 visa, although a marriage visa, is technically a non-immigrant visa so the American Citizen must simply submit an I-134 affidavit of support.

In Thailand, there are certain Thai visa categories which require that the applicant show that they have some sort of financial safety net. Visas such as the Thai retirement visa and the Thailand O visa (based upon marriage), require the visa holder to continually prove that they either meet a prescribed minimum monthly income or have a certain amount of money in a Thai bank account.

For those applying for Thai visas outside of Thailand, certain consulates have differing financial requirements depending upon the visa category. Therefore, one wishing to obtain a Thai Business Visa may be required to show a minimum bank balance. The minimum financial requirement may vary from post to post.

The United States Embassy in Thailand, diligently scrutinizes the financial resources of those applicants wishing to obtain an American visa. Many people believe that there is some sort of magic numerical amount of money that if shown in a bank account will guarantee visa application approval. In reality, the Embassy looks at the “whole picture” when making decisions on US tourist visas and often simply having a large bank balance is not enough to obtain a tourist visa. Further, in cases where an American boyfriend tranfers a large amount of money into a Thai applicant’s bank account in an effort to “beef up” the applicant’s credentials, the Embassy can tell that the bank balance is artificially inflated and will likely deny the application. It is never wise to manufacture evidence in order to obtain a United States visa on behalf of another.

Income Requirements for Fiance and Spouse Visa Sponsorship: 2009

In order to sponsor a Thai fiancee or wife for a visa to the USA, a US Citizen petitioner must prove that he can support the Thai applicant in such a manner that the Thai applicant will not become a burden to the state. Therefore, the US Citizen must present an affidavit of support proving an income that is deemed appropriate for supporting a Thai fiancee or wife. US Immigration policy dictates that in order to be able to support an immigrant one must produce an income that is 125% of the poverty level as set forth by US Housing and Human Services. Since Housing and Human Services constantly readjusts their definition of the poverty level, the requisite income required for immigrant sponsorship changes from year to year.

Below are the poverty figures for the 48 contiguous United States with calculation made for 125% of that figure:

Housing and Human Services has set a different standard for figuring the poverty level in Alaska, below is the poverty level for Alaska along with a calculation of 125% of that government defined monetary level.

Housing and Human Services also sets a different poverty line for Hawaii, below is the poverty guideline for Hawaii and a calculation of 125% of that guideline

It should be noted that active duty military need only show 100% of the federal poverty guidelines in order to be entitled to support an immigrant relative either entering on a K1 or immigrant visa.

For those with a deficiency in income (a more acute problem with prospective sponsors who are self employed) it may be possible to use a joint sponsor in order to make up the income shortfall. Another method of overcoming this obstacle is by using assets. For affidavit of support purposes, a prospective sponsor of a Thai fiancee or wife can make up the difference in income between what is actually earned and what is statutorily required by showing assets amounting to 5 times the difference between what a prospective sponsor earns and the legally required level. Therefore if a prospective sponsor falls $1,000 short of the required level, then he can show $5,000 in assets to make up that difference. US petitioners must submit the affidavit of support to the US Embassy in Thailand at the time of visa interview.

For more information please see

K1 visa Thailand

K3 visa Thailand

US visa Thailand

(Note: Nothing written herein should be regarded as a substitute for legal individual legal advice from a duly licensed US attorney. No attorney client privilege shall be inferred to have been created by reading this post.)

The affidavit of support is used to prove that an American Citizen can support a Thai fiancee or wife in the USA. Although the form is issued by USCIS, it is presented at the Thai fiancee or spouse’s interview at the American Embassy in Bangkok Thailand. The type of visa one wishes to obtain will make the difference in the type of Affidavit of Support that will be necessary to show the US Citizen petitioner’s ability to support a Thai fiancee or wife in the United States.

The I-134 and I-864 affidavit of support to Prove Financial ability for US Visa Sponsorship

There are two affidavit forms used in US Family Immigration matters that are used to prove that a US citizen is indeed capable of sponsoring his loved one at the statutorily prescribed levels. The I-134 and the I-864 are the two different affidavit forms and their use with regard to visa category depends upon the situation and the visa being sought.

Financial Requirements

Currently, for the I-864 affidavit of support, the US Citizen must show that he or she can support his Thai fiancee or spouse at a level equal to 125% of the Federal poverty guidelines (as calculated by Housing and Human Services) for the year in which the visa is being sought.

The Binding Effect of the I-864 affidavit of Support upon a US Citizen

Some US Citizens are interested in how binding their financial commitments are with regard to the I-864 affidavit of Support. There is some case law that has allowed US Permanent Resident former spouse of US Citizens the right to collect money from the US Citizen spouse based upon the finding that the Permanent Resident is the third-party beneficiary of an agreement between the United States government and the US Citizen. Also, the US Citizen will be liable to the US government for the relevant costs should the Permanent Resident spouse become a public charge.

Proving Financial Ability and Obtaining Assistance with the Affidavit of Support

Generally, a US Citizen’s ability to support a fiancee or spouse is proven by presenting evidence showing the US Citizen’s income is above the statutorily mandated 125% of the poverty guidelines. Proving the financial ability to support a fiancee can be somewhat difficult if the US Citizen’s income does not meet the 125% requirement. Using assets to prove financial ability is one method, while many people opt to simply utilize a joint sponsor in order to meet the financial requirements. Joint sponsorship is a popular method of overcoming affidavit of support issues.

Note: Nothing in the post should be used in lieu of legal advice from a licensed US attorney with Immigration experience.

For More US Immigration Information Please see:

US Visa Thailand

Thai Fiance Visa

K1 Visa Thailand or

USA Visa Thailand