Is I-864 required?

[Melissa R 0]

Hi all,

So my husband and I are getting together all our paperwork for applying for his "conditional permanent resident" status. He's from Canada so we're hoping the process is speedy - we have a baby on the way! I was rereading all the instructions for our forms, and came across a mention of I-864 Affidavit of Support. Is this required to submit with our I-130 and I-485?

At the moment, my only reliable income is an internship, supplemented by kind and generous parents. He has a job waiting to hire him once DHS approves him, which will be our main source of income - but in the meantime, nothing on paper would demonstrate that we're well-off. Is this likely to be a problem?

Thanks for any experienced advice,

Melissa

[Kastrs 723]

Umm I am nearly certain that yes you will need the completed i864, but it think you would find it very helpful to

Also congradulations on the baby!

As a note you will need that form when going for the interview.

Edited March 28, 2013 by Kastrs

[NikLR 13,227]

Hi all,

So my husband and I are getting together all our paperwork for applying for his "conditional permanent resident" status. He's from Canada so we're hoping the process is speedy - we have a baby on the way! I was rereading all the instructions for our forms, and came across a mention of I-864 Affidavit of Support. Is this required to submit with our I-130 and I-485?

At the moment, my only reliable income is an internship, supplemented by kind and generous parents. He has a job waiting to hire him once DHS approves him, which will be our main source of income - but in the meantime, nothing on paper would demonstrate that we're well-off. Is this likely to be a problem?

Thanks for any experienced advice,

Melissa

Is the USC living in Canada? Did the Canadian move to the USA to get married and stay or was it a spur of the moment decision? Is the Canadian moving with a work visa?

Either way you will need the I-864. It's a legal contract between the USC and the US government so they can sue you if the permanent resident uses means-tested benefits such as food stamps and medicare. The beneficiary (the non-USC spouse) cannot do this themselves. The USC must show they can meet the 125% of the poverty guidelines or else have a co-sponsor that meets them for themselves, the beneficiary and their own family (if they have one.)

Edited March 28, 2013 by NikiR

[Penguin_ie 5,994]

Yes you need the I-864. If you are looking to get a CR-1 spousal visa, and have not started things yet, then he will not be living here by the time the baby is born, but as a Canadian, he can come over for the birth of course as a regular visitor.

[Alaska2012 462]

Is your husband living in Canada now? Speedy isn't the word I would use to describe this process, even Canadians are in for a long wait, could be up to 10 months from start to finish. With that said he can always come down and visit during the process.

His future income won't count you must make enough money on your own, and since you guys are having a baby you need to make enough to support a family of 3, if not our husband needs a co-sponsor.

Good luck!!

[newacct 688]

The beneficiary (the non-USC spouse) cannot do this themselves.

The beneficiary can co-sponsor. However, in this case it doesn't help because the beneficiary does not have a job that will continue after immigration, and future job doesn't count.

[NikLR 13,227]

The beneficiary can co-sponsor. However, in this case it doesn't help because the beneficiary does not have a job that will continue after immigration, and future job doesn't count.

They can't do it on their own. A person cannot sponsor themselves unless they have the assets to share with their spouse or have worked the required 40 quarters in the USA (or for a US company). But they can co-sponsor on employment that's already ongoing though. I didn't say that because it wasn't relevant to the original poster's questions.

What they're applying for though, is adjustment of status. I'm confused if the husband is already in the USA or if they're going the IR1/CR1 route.

Edited March 28, 2013 by NikiR

[Melissa R 0]

Thanks for the comments, everyone.

My husband is with me in the US. (I'm a US citizen, by the way, born and raised.) We got engaged about a year ago after two years of long-distance relationship, and immediately went to West Africa together, which cemented our relationship. We returned to the US together (with me newly pregnant) in November. We were honest with the customs officers about our intent to marry, and after a lengthy interview, they let him through. We married in December, when his parents were out visiting.

Thus, his 6 permitted months as a visitor, which began in November, is up in mid-May. It was my understanding from reading some other forums that if we apply for his adjustment of status, he is permitted to remain in the US from the time that application is accepted - unless he leaves the country again, which we hope to do in June for his best friend's wedding in Ontario - which can be approved via an I-131 Application for Travel, which we're planning to submit in the initial package. Either way, our daughter is due to arrive at the end of July, and we want him here.

Things were proceeding on track to get the paperwork submitted until I found out about the I-864. That's the major sticking point for us. I'm 21, educated and experienced but not advanced in the work world, and certainly not earning poverty level for three. I'm thinking an I-864A with my parents might be our best bet, but it's a route we don't want to take if we don't have to.

Then again, nothing in this process is about what works for the applicants.

[Melissa R 0]

The other thing I'm unclear on is the terms of his 6-month permitted stay. Is that per calendar year or per twelve-month period? Ie, although he'd have to leave in May if we didn't file in time because that's the end of 6 continuous months, could he come back for the birth because a month and a half of that time was in 2012 not 2013?

Thanks, much appreciated.

[Penguin_ie 5,994]

*** Moving from CR-1 spousal visa to AOS from Tourist visa as OP's husband is in the USA ****

The general rule for a tourist visa is that you need to stay out as long as you are in/ spend less than 6 months in the USA in any rolling year, so if he spends 6 months in the USA, he'd need to spend at least that long outside. However, the CBP at the border can make an exception, especially for something as important as the birth of a baby, and if there is good reason to believe your husband would leave shortly- for example a return flight for in one months time, job waiting for him back home etc.

If he does AOS, he is unlikely to be done and able to travel in June. The other issue is that it sounds like he was questioned closely at the border when he entered, and he is not supposed to use the tourist visa to come and stay (getting married is fine, using the tourist visa to immigrate is not), so there may be problem with AOSing.

You could also file the I-130 petition now, but instead of doing AOS (requiring the I-864 now), go for consular processing, where he would have his medical and interview back home. In such a case, the I-864 is not needed till NVC stage and final determination is not made till interview, so you';d have some 8+ months to get financials sorted.

[kzielu 1,149]

Things were proceeding on track to get the paperwork submitted until I found out about the I-864. That's the major sticking point for us. I'm 21, educated and experienced but not advanced in the work world, and certainly not earning poverty level for three. I'm thinking an I-864A with my parents might be our best bet, but it's a route we don't want to take if we don't have to.

Then again, nothing in this process is about what works for the applicants.

Well, you will have to. Without I-864 your AoS will get denied.

[NikLR 13,227]

Thanks for the comments, everyone.

My husband is with me in the US. (I'm a US citizen, by the way, born and raised.) We got engaged about a year ago after two years of long-distance relationship, and immediately went to West Africa together, which cemented our relationship. We returned to the US together (with me newly pregnant) in November. We were honest with the customs officers about our intent to marry, and after a lengthy interview, they let him through. We married in December, when his parents were out visiting.

Thus, his 6 permitted months as a visitor, which began in November, is up in mid-May. It was my understanding from reading some other forums that if we apply for his adjustment of status, he is permitted to remain in the US from the time that application is accepted - unless he leaves the country again, which we hope to do in June for his best friend's wedding in Ontario - which can be approved via an I-131 Application for Travel, which we're planning to submit in the initial package. Either way, our daughter is due to arrive at the end of July, and we want him here.

Things were proceeding on track to get the paperwork submitted until I found out about the I-864. That's the major sticking point for us. I'm 21, educated and experienced but not advanced in the work world, and certainly not earning poverty level for three. I'm thinking an I-864A with my parents might be our best bet, but it's a route we don't want to take if we don't have to.

Then again, nothing in this process is about what works for the applicants.

If you go the AOS route, unless he has advanced parole, he CANNOT leave the USA. It's not that he's permitted to stay, he literally cannot leave without advance permission called advance parole. If he does you're abandoning the AOS and would have to start over as a CR1. He may also incur a ban if he's overstayed.

Now, when he was admitted to the USA did he say he would only be staying as a tourist or did he say he was intending to stay with you period. If he was only granted a 6 month visitation, he needs to leave and you need to file for a CR1 not AOS. They may have allowed him into the country thinking he was just visiting. As a visitor he could leave and come back to visit, but may be asked to show proof of ties to Canada, such as a lease, a letter from employer, bills etc... Most Canadians do not have trouble crossing, but some do. He most likely would be allowed to attend the birth. There is some debate if it is 6 months per visit or 6 months per calendar year (Jan 1 - Dec 31). You may want to contact CBP about it.

Either way you need the Affidavit of Support. I suggest finding a co-sponsor. You would fill out an I-864, the co-sponsor would fill out an I-864 (your mom or dad, whomever makes more) and if needed the other parent can fill out an I-864a. The I-864 is required. No spousal visa will be issued, no matter what path, without it.

Edited March 30, 2013 by NikiR

[Moomin 292]

You need to not take immigration lightly and understand what you're getting yourself into.

It takes about 3 months from when you receive your receipt of having sent your application until getting advanced parole. That is IF you get AP (or work authorization) before the interview. Sometimes, if the interview is close to the 3 month mark, they'll schedule an interview and you'll have your greencard after that. However there's no guarantee it'll be within 3 months. The cost of the AP (i131) and EAD (i765) are waived when they're submitted with the AOS application. Remember to add all the evidence. Meaning, you'll have to treat the EAD with its own evidence. SO when it says you need 2 passport style photos for I485, I131 and I765, you have to submit 2 for each form. Same goes for copy of marriage cert.

The affadavit of support is crucial to the AOS. Without it, AOS is denied. If you don't make enough, you still have to fill out the affidavit of support, and then you can look for a joint sponsor to meet the requirements. The joint sponsor has to count his/her household and your husband. Your husband's job/future job doesn't qualify. Even if he had a job now, his income wouldn't qualify since he doesn't have a valid work permit.

Your husband can leave the US any time. But without AP in hand before he leaves, he will not be allowed back in. And even if he by mistake was, his AOS will be abandoned. If you're keeping your head up for the June wedding, you have to file NOW.

Your husband needs to do a medical as well.

[Moomin 292]

Now, when he was admitted to the USA did he say he would only be staying as a tourist or did he say he was intending to stay with you period. If he was only granted a 6 month visitation, he needs to leave and you need to file for a CR1 not AOS. They may have allowed him into the country thinking he was just visiting. As a visitor he could leave and come back to visit, but may be asked to show proof of ties to Canada, such as a lease, a letter from employer, bills etc... Most Canadians do not have trouble crossing, but some do. He most likely would be allowed to attend the birth. There is some debate if it is 6 months per visit or 6 months per calendar year (Jan 1 - Dec 31). You may want to contact CBP about it.

As far as I understand, OP and her husband came directly from West Africa to the US.

When a visitor is let into the US, they will rarely be scrutinized later on. The CBP officer already trusted that the visitor was indeed a visitor. Otherwise they wouldn't have let him in. While they might ask at the interview, they won't be questioned for hours and hours. Not unless they admit (or add evidence) that they had immigrant intent before entering.

It's 6 months in a rolling year. Meaning it doesn't reset by January 1st. And while CBP officers usually look into the travel pattern of visits to the US, they can take into consideration how much time the visitor has spent in other countries. I'd assume that might be another reason why they were questioned - when coming right from West Africa and then getting married. It gets harder to show strong ties to home country when having been in other countries prior to entering the US.

[NikLR 13,227]

I know my ex SIL took it to mean, with the advice of an immigration attorney, 6 months per calendar year. So when her youngest daughter was going into grade 12 they bought a house in Hawaii. She stayed from Aug to Dec, then Jan to June with some minor 1-2 week stays out of the USA. She was only refused entry once back into the USA with the officer telling her to bring specific documents proving her ties to Canada and also of her need to be in Hawaii, where her 17 year old daughter was alone. The next day she went back with said proof and was admitted without a second glance or anyone looking at the proof.

Is it not possible for the AOS to be denied because he was admitted as a visitor after a lengthy interview by POE officers? (It was lengthy by the OP's admission.) Because they were convinced he was not staying in the USA after admitting that the couple had intent to marry? Or did they let him in knowing he would be staying and said "no problemo!" ? To stay, after convincing the POE officers that he would not be staying, would be fraud, would it not?