A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Monday, April 20, 2020

Don't forget to Submit the I-944 and/or I-864 with your I-485

The public charge rule has now gone into effect, bringing some changes to the immigrant petition process.  For many applicants present in the US, Form I-485 (Application to Register Permanent Residence) must now be filed with Form I-944 Declaration of Self-Sufficiency and Form I-864 Affidavit of Support.

The I-485 application is filed to request for adjustment of status to permanent resident in the US.  Any I-485 application must have an approved underlying immigrant visa petition, the most common ones being filed by family members (I-130) and employers (I-140). Generally, Form I-485 based on a petition for a family member must be filed with both I-944 and I-864 to prove financial support, including those who are K-1/K-2 fiance visas. Most employment-based petitions will only need to include Form I-944 with the I-485 application. There are exemptions from having to file one or both of the forms, depending on circumstances.

Applicants do not need to file Form I-864 if they have 40 quarters of work in the United States, not including quarters where certain public benefit was received. 40 quarters of work is equivalent to roughly 10 years of paying into social security. An example would be someone who has worked 40 quarters under H-1B status before applying for a green card. He/she would not need to file Form I-864. Children of U.S. citizens who are unmarried and under 18 years-old are also exempt from filing I-864, provided they will become citizens upon admission.

Employment-based applicants typically need to file Form I-944 but not Form I-864. Those whose underlying I-140 was filed by a relative or who have 5% or more ownership in the petitioning business must file both forms.  The I-864 sponsor in this case must be applicant's spouse, parent, child, brother or sister. I-864 is not required if the relative is a brother or sister who is a legal resident of the US (rather than a citizen).

Some other notable categories of applicants that must file I-944 but not I-864 are widows/widowers of US citizens, those under the Diversity Visa program, foreign entrepreneurs (Form I-526), and certain special immigrants.

Some applicants are exempt from filing both I-864 and I-944 including asylees, refugees,  human trafficking victims (T visa), applicants under the Cuban Adjustment Act, etc.  U nonimmigrants and VAWA self-petitioners are as well, except, as discussed earlier, if they are employment-based applicants with family or ownership (at least 5% shares) relation with the petitioning entity.

The above describes the most common situations. Several other specific categories do not need to file one or both of the forms. Anyone planning to file Form I-485 should read the form instructions closely to determine what applies to him/her. Obtain professional legal help if necessary to ensure proper submission of application forms and information. 

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