Integrity Legal

Posts Tagged ‘Affidavit of Support’

1st March 2020

In recent months, both Thai and American immigration systems have been in a state of flux. In some ways the systems have become more streamlined, but in other ways it is becoming more difficult to navigate these systems. The Trump administration has been implementing policies which make immigration to the United States more difficult, as a practical matter. Recently, these prerogatives are starting to have an impact on the ground in Thailand, Laos, Cambodia, and ASEAN as a whole. For example, Myanmar has been placed upon a list of countries banned from traveling to the USA. As a result, Myanmar nationals will not be able to enter the USA, nor will such nationals be granted visas to travel to the USA. If and/or when this ban will be lifted remains to be seen.

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.

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13th October 2013

A frequently asked question from those wishing to sponsor a foreign fiance or spouse for a US Fiance Visa or US Marriage Visa is: do I make enough income to act as a sponsor for my loved one? The answer to this question involves the affidavit of support which is a primary component of the visa application process. When a fiance or spouse visa application is adjudicated by a Consular Officer at a US Embassy or US Consulate overseas part of the application includes either and I-134 or I-864 affidavit of support. This document allows the adjudicating Consular officer to make a determination as to whether or not the US Citizen spouse or fiance has the income necessary to support their fiance or spouse in the United States. This affidavit also acts as a sort of third party beneficiary contract between the American spouse and the United States government in order to make certain that the American spouse pays the US government for any means tested benefits that the foreign spouse may acquire while in the USA.

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):

Persons in family/household Poverty guideline
For families/households with more than 8 persons, add $4,020 for each additional person.
1 $11,490
2 15,510
3 19,530
4 23,550
5 27,570
6 31,590
7 35,610
8 39,630


Persons in family/household Poverty guideline
For families/households with more than 8 persons, add $5,030 for each additional person.
1 $14,350
2 19,380
3 24,410
4 29,440
5 34,470
6 39,500
7 44,530
8 49,560


Persons in family/household Poverty guideline
For families/households with more than 8 persons, add $4,620 for each additional person.
1 $13,230
2 17,850
3 22,470
4 27,090
5 31,710
6 36,330
7 40,950
8 45,570

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.

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2nd April 2010

An integral component of the US visa process is the submission of an affidavit of support which attests to the US Citizen Petitioner’s ability to support a foreign fiance for a K1 visa or spouse for a CR1 Visa, IR1 Visa, or K3 Visa once they are in the United States. Usually, the Federal Poverty Guidelines are used as a basis for ascertaining the guidelines used by Consular Officers and USCIS officers to adjudicate the ability to provide support. In most cases, the Federal poverty guidelines are updated on a yearly basis, as of the time of this writing, the 2010 guidelines have not been published, per se. Instead, the US Congress has extended the guidelines from 2009. The following is quoted from the website of Housing and Human Services:

“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, 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.

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1st March 2010

Those going through the US visa process may be aware of the I-864 affidavit of support. This document is used in order for the United States government to receive assurance that the prospective immigrant will not become a public charge in the United States. In family based immigrant visa cases involving visas such as the CR1 Visa or the IR1 visa the I-864 is used. The I-864 should not be confused with the I-134 affidavit of support which is often utilized by those seeking either a K1 visa or a K3 Visa. However, at the time of this writing, it is highly likely that use of the I-134 in K-3 cases will fall by the wayside as fewer K-3 visa applications will be forwarded on to US Embassies and Consulates abroad due to the administrative closure of new K-3 applications at the National Visa Center. That being said, non-immigrant dual intent travel documents such as the K1 fiance visa and the K3 marriage visa do not use the I-864, but use the I-134.

There are certain Immigrant visas which do not utilize the I-864 as the affidavit of support requirement is waived. These type of cases require the submission of the I-864w. To quote the United States Citizenship and Immigration Service (USCIS) in their own instructions for the form itself:

“The Form I-864 is legally required for many family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and that they are not likely to become a public charge. Certain classes of immigrants are exempt from the I-864 requirement and therefore must file Form I-864W instead of Form I-864 or Form I-864EZ.”

Under the Child Citizenship Act of the year 2000, there are certain children who enter the United States and become United States Citizens by operation of law upon admission at a port of entry by the Customs and Border Protection Service (CBP). These children may then apply for a certificate of citizenship which is somewhat similar to a naturalization certificate except for the fact that the child is not naturalized, but a citizen statutorily. In cases where the child would become a citizen upon entry, the obligations incurred by an I-864 would automatically extinguish upon entry since the child would be a US Citizen. Therefore, the need to adjudicate means of support are made somewhat redundant. This may be the policy reason underlying the promulgation of the I-864w.

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29th October 2009

The National Visa Center (NVC) acts as s sort of clearinghouse and intermediary for United States visa applications. Their duties as an intermediary can be shown in the way the NVC receives cases from the Department of Homeland Security’s United States Citizenship and Immigration Service and forwards them on to United States Embassies and Consulates abroad. This function has been documented in detail in previous posts on this blog. However, NVC functions very differently in cases involving Immigrant visas (CR1, IR1) then it does in cases involving the non-immigrant dual intent family visa categories, most notably the K1 visa and the K3 visa.

A K1 visa application or K3 visa application spends a relatively short period of time in the possession of the NVC. In Immigrant visa cases, this is not true. Applications for a CR1 visa or an application submitted for an IR1 visa are held at NVC for a substantially longer period of time. Unlike the K1 and K3 visa categories, packet 3 is sent out by the NVC and not the US Embassy abroad.

The United States Immigration authorities at the American States Department have made the administrative decision to handle all packet three matters at NVC rather than making the Consulates and Embassies handle this aspect of the process. In a way, the decision makes sense as the NVC is in a better position to specialize in this phase of the process. Also, NVC conducts a rather detailed security clearance to make certain that the prospective immigrant is not a threat to National security. Also, NVC will take the affidavit of support fee and process the United States Citizen or Lawful Permanent Resident’s I-864 Affidavit of Support.

It should be noted that in cases where the petitioner is resident abroad, it may be possible to submit a Direct Consular Filing (DCF) or a USCIS local filing. In cases such as this, the case file will not be sent to the NVC, but will either be processed entirely at the Embassy or Consulate; or it will be sent from the local USCIS office directly to the US Embassy. In the case of Thailand, the Bangkok office of USCIS will send all approved locally filed Immigrant visa applications directly to the US Embassy in Bangkok. As the USCIS office is directly across the street from the US Embassy, sending this file directly to the Embassy is usually a very straightforward process.

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22nd October 2009

There is something of an “alphabet soup,” when it comes to discussing United States Immigration. There are many agencies under the jurisdiction of the United States Department of Homeland Security (DHS), the most important from an Immigration standpoint are: the Immigration and Customs Enforcement (ICE) agency, Customs and Border Protection (CBP), and the United States Citizenship and Immigration Service. Meanwhile, the United States Department of State (DOS) has jurisdiction over the National Visa Center (NVC) as well as United States Embassies and Consulates outside of the USA. This mix of acronyms alone can cause a sane man to go crazy, add on top of this the fact that sometimes different phases of the Immigration process have the SAME acronym and one is left very befuddled.

For example, the process of converting a K1 visa to permanent residence (Green Card) is called Adjustment of Status. when a Thai fiancee travels to the United States on a K1 visa she has 90 days to execute a legal marriage and submit an application to regularize her status. As stated previously, this is commonly referred to as adjustment of status.  It is possible to adjust other non-immigrant visas, such as J1 visas, F1 visas, or B2 visas, but it can be more difficult and one should not travel to the US using one of these visas with the intent to adjust as these categories do not allow for dual intent. One should not confuse the adjustment of status process with the change of status process, which is the process of converting a visa from one non-immigrant visa category to another.

Another “AOS” commonly used in United States Immigration vernacular is the Affidavit of Support. The affidavit of support is the document showing that a United States Citizen or Lawful Permanent Resident can financially maintain a foreign fiancee or spouse in the United States. The worry of government officials is that the foreign loved one may become a “public charge,” the affidvait of support is used to illustrate that this will not be an issue. An affidavit of support is signed by a K1 visa petitioner and submitted at the visa interview at the United States Embassy. At the time of the adjustment of status a different affidavit of support is submitted. K1 visa applications also utilize a different affidavit of support compared to visa petitions for a foreign spouse (K3 visa, Cr1 visa, Ir1 visa).

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5th September 2009

This blog has often compared and contrasted the difference between the Immigration procedures for obtainment of a US Visa and a Thai Visa. To further compare the two systems, this post will provide a brief overview of the financial requirements one must meet in order to obtain a visa to Thailand or the United States of America.

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.

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3rd May 2009

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:

Size of Family Unit Poverty Guidelines 125% of Poverty Guidelines
1 $10,830 $13,538
2 14,570 18,213
3 18,310 22,888
4 22,050 27,563
5 25,790 32,238
6 29,530 36,913
7 33,270 41,588
8 37,010 46,263

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.

Size of Family Unit Poverty Guidelines 125% of Poverty Guidelines
1 $13,530 $16,913
2 18,210 22,763
3 22,890 28,613
4 27,570 34,463
5 32,250 40,313
6 36,930 46,163
7 41,610 52,013
8 46,290 57,863

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

Size of Family Unit Poverty Guidelines 125% of Poverty Guidelines
1 $12,460 $15,575
2 16,760 20,950
3 21,060 26,325
4 25,360 31,700
5 29,660 37,075
6 33,960 42,450
7 38,260 47,825
8 42,560 53,200

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.)

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18th April 2009

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

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