Exceptions or Exemptions to Filing I-864 – Affidavit of Support

An Affidavit of Support Form I-864 should not be filed for the following types of intending immigrants:

  • An intending immigrant who has earned or can be credited with 40 qualifying quarters (credits) of work in the United States.

    One can acquire 40 qualifying quarters through the following methods:
    • Working in the U.S. for 40 quarters in which you received the minimum income established by the Social Security Administration (SSA) .

      It is important to note that, when calculating the qualifying quarters that may be credited to an intending immigrant, the intending immigrant may not count any qualifying quarters worked during any period after December 31, 1996, in which they received a federal means-tested public benefit.

      Because it would serve no purpose, an I-864 is not required in this case, since there would be no support obligation.

    • By being credited with quarters worked by your spouse during the marriage to your current spouse or a parent during the time you were under 18 years of age.

      The beneficiary can claim all quarters worked by a parent prior to the beneficiary’s 18th birthday, even including time worked before the beneficiary was born to or adopted by the parent. However, one can claim qualifying quarters worked by a spouse only if one is still married to that spouse or if the spouse has died. Only those quarters worked during the marriage can be claimed.

      You cannot count any quarter in which the spouse or parent was receiving means-tested public benefits.

    • A combination of the above.

      Include all SSA forms necessary to establish that you have or can be credited with 40 quarters of coverage.

      The SSA can provide information on how to count quarters of work earned or credited and how to provide evidence of such. Please visit the SSA website for more information.

  • An intending immigrant who is a child that will become a U.S. citizen immediately upon admission to the U.S. under the Child Citizenship Act of 2000 (CCA).

    For this classification to apply:
    • At least one parents of the child is a U.S. citizen;

    • The child is under 18 years of age at the time of admission or adjustment of status;

    • The child is residing permanently in the United States in the legal and physical custody of the U.S. parent; and

    • If the child is an alien orphan adopted abroad, the adoption was legally finalized prior to admission into the United States, and both adoptive parents or the unmarried U.S. citizen parent personally observed the alien orphan before or during the adoption proceeding.

      If the citizen parent(s) adopted the alien orphan abroad, but at least one of the adoptive parents or the unmarried parent did not see and observe the alien orphan before or during the foreign adoption proceeding, then an affidavit of support is still required. It is not required if the citizen parent submits evidence that, under the law of the state of the alien orphan’s intended residence in the United States, the foreign adoption decree is entitled to recognition without the need for a formal administrative or judicial proceeding in the State of the proposed residence. Orphans whose adoptions were not legally finalized until after admission into the United States would not qualify for this exemption and must file a Form I-864.

  • Self-petitioning widow(er)s and battered spouses or children of a U.S. citizen, who have an approved Petition using the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

If any case in the above categories apply, Form I-864 should not be filed at all.

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I-134

A Form I-134 should be filed in the cases below.

  • Fiancé visas (K1 visas) are technically non-immigrant visa applicants, therefore they should use the I-134. An I-864 will have to be submitted to the United States Citizenship and Immigration Services (USCIS) at the time of adjustment of status to become a conditional immigrant in the United States after they are married.

  • Diversity Visa (DV) applicants.

  • Returning Resident (SB) applicants.

  • For non-immigrant visas such as visitor visas or other types of aliens, including parolees and students.

Applicants using the I-134 would need to show that their sponsor’s income is 100 percent of the federal poverty guidelines as required.

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