EP22: Apply For CR1 Spouse Visa If Petitioner Is Unemployed or Self-Employed

And we’re back with another episode of the My Path To Citizenship podcast! 😝 I’m excited to discuss the income requirements of the affidavit of support form I-864 when the petitioner is unemployed or self-employed.
A common question I get asked a lot is about the affidavit of support and how to prove your income when petitioner is unemployed. So, unless you have a regular W2 income, you will likely need to provide more evidence than just a paystub.

Basic Requirements For The Affidavit of Support:

  • Must meet the income requirement
  • Must provide proof of income/assets
  • Beneficiary must not become a public charge (ep12)
Now that we know the basics, let’s learn more about the I-864 affidavit of support process and what happens when the petition is unemployed.
Case Example:
Jeff is a US citizen who is petition his wife, Katherine, for a CR1 spouse visa. Jeff has recently lost his job due to downsizing and he is concerned about completing the I-864 affidavit of support when he is unemployed.
In the case example above, Jeff will still need to complete the I-864 even if petitioner is unemployed. He will then need to find a joint sponsor  that does meet the income requirement for their household size plus Jeff’s wife.

Who Needs To Complete An Affidavit of Support?

Anyone who intends to bring a foreigner to the US on an immigrant visa such as the CR1 spouse visa will be required to complete and sign the I-864 affidavit of support.
Why does everyone need to complete this form? Simple… it’s due to the public charge testing that will be done by the US consulate to determine if someone will end up on government welfare. 🤨
Without the affidavit of support, USCIS will not allow anyone to enter the US on an immigrant visa because of the risk of becoming a public charge.

What is a public charge?

A public charge is someone who applies for and receives US government welfare or is at risk of doing so.
USCIS considers any means-tested benefit received as a public charge. You do not want to be labeled as a public charge because it basically means you won’t be allowed into the United States.

What are means-tested benefits?

Means-tested benefits are a category of government welfare programs that you must qualify for. The programs are limited for now but there are efforts in the US government that want to make it more difficult for immigrants to pass this test.
Generally, most immigrants must wait at least 5 years (hold a green card for this long) before they become eligible. Applying before the 5 year timeline will risk your green card application or renewal.
There also may be some means-tested benefits that only US citizens qualify for. Check with your state before applying for any benefits if you are not a US citizen.

List of means-tested benefits:

  • Food stamps
  • Supplemental Security Income (SSI)
  • Medicaid
  • Temporary Assistance for Needy Families (TANF)
  • State Child Health Insurance Program (CHIP)

Not means-tested benefits:

  • Emergency Medicaid
  • School lunches
  • Immunizations and treatment for communicable diseases
  • Student assistance to attend colleges and institutions of higher learning
  • Some kinds of foster care or adoption assistance
  • Job-training programs
  • Head Start
  • Short-term, non-cash emergency relief

Learn more about the I-864 from travel.state.gov.

Note: If your spouse applies for means-tested benefits but is denied, USCIS will not come after you as the sponsor for anything. This is because your spouse didn’t actually receive any benefits to begin with.
If, however, they do receive means-tested benefits, be ready for USCIS to take you to court to try to recover the funds.
Although it is rare for USCIS to sue you for the funds, it’s not unheard of.

When Do You Have To Complete I-864?

When you first begin the spouse visa process, you need to submit the I-130 petition asking USCIS for permission to apply for the visa abraod.

After the I-130 petition is approved, it will be routed to the National Visa Center (NVC). The NVC will then send you a letter with a checklist asking you to pay the IV and Affidavit of support fees online.

  • Payment made online:  NVC will process the I-864 Affidavit of Support and immigrant visa fees, payment receipts can be downloaded from the Immigrant Visa Invoice Payment Center.
  • Payment made by check or money order: After the I-864 processing fee is paid, NVC will contact the petitioner, who is also the primary sponsor on the Affidavit of Support with a fee receipt and instructions to download the I-864 form and instructions to return it to NVC with all required supporting documents (such as tax returns, employer letters, etc.) along with a “Document Cover sheet,” which is a bar code sheet that identifies your case

You will be given instructions on how to complete the online forms DS-261 and DS-261. Once you complete these, you will move on to completing the I-864 affidavit of support.

  • First step is to submit online Form DS-260 Immigration Visa Application Form .
  • Next step is to submit Affidavit of Support and supporting financial evidence to NVC.
  • Can download the I-864 from USCIS.gov

Related Post: 2019 CR1 Visa Process: Get Approved For The Spouse Visa In 10 Easy Steps

Evidence of Income To Include With I-864

After completing the affidavit of support you’ll need to gather and submit supporting evidence proving your income. The listed documents below are just a start, you can include as many supporting documents as you have.

  • If you are employed by an individual or company,
    • submit a photocopy of an employment letter,
    • pay stub, or
    • pay advance (direct-deposit receipt) that meets the criteria below:
      • Includes your name and the company’s name;
      • Is on signed, business letterhead (you cannot sign the letter yourself); and
      • Is issued within the last three months.
  • If you are self-employed, obtain a photocopy of one of the following:
    • Your business license.
    • A signed letter on business letterhead that was written within in the last three months.
    • A contract between you as an independent contractor and a company.
  • If you are unemployed or retired, submit a photocopy of ongoing income from other means, such as:
    • retirement benefits;
    • other household members’ income; or
    • other significant assets.
  • If you are self-employed in any of the following ways, you do not need to submit evidence of income:
    • Babysitter,
    • elderly caretaker,
    • construction worker,
    • handyperson,
    • housekeeper,
    • landlord,
    • musician,
    • nanny,
    • seamstress,
    • tailor,
    • artist, or
    • writer.
The petitioner and any other financial sponsors can download the forms at www.uscis.gov, and can use the chart on our “Collect Financial Documents” page to learn which forms are required

What Happens After Submitting I-864?

    • The NVC reviews the I-864 for completeness:
      •  Must have signatures,
      • proof of U.S. citizen or LPR status,
      • proof of current income, and
      • required tax returns
Only the consulate can make a decision as to whether the affidavit is legally sufficient to meet the public charge requirements.

The I-864 is a very complex document, and you should be careful to complete it correctly!

Related Post: EP4: CR1 Spouse Visa Interview Questions & Answers

Completing I-864 When You’re Unemployed

When the petitioner is unemployed, it will make things a bit more complicated. You can still be approved or the spouse visa but you will likely need to get help from someone who can prove their income.

  • Being unemployed can be a problem. 😩
  • Petitioner should be able to financially support the intending immigrant.
  • USCIS sees these cases as high risk that beneficiary will become a public charge.
  • You can use joint sponsor to help meet the income requirement above.
  • Being a student is also considered being unemployed. (Student loans are not income)

Related Post: CR1 Visa Administrative Processing: How Long Will It Take?

Using Retirement Income For Affidavit of Support

Receiving Social Security can definitely be used as income on the affidavit of support. This is considered income and it is stable and long term which USCIS tends to like.
To prove your retirement income, you can request a earnings statement from the Social Security Administration (SSA).
You can also include copies of your bank statement that show regular deposits from SSA.
Remember, retirement income must still meet the minimum income requirement. If it’s not enough, you can either use your assets to meet the requirement or you can find a joint sponsor that meets the income requirement.
In some ways, proving income is much easier for someone who is retired compared with when a petitioner is unemployed.

Legal Obligations of The Affidavit of Support

Divorce and separation will not end your financial obligations under the affidavit of support. Even if you are no longer with the beneficiary, you are still legally required to financially support them and to make sure they don’t apply (and get) government welfare.
How will you know if they apply for welfare if you are no longer together? It doesn’t matter!
If they apply, you are on the hook to pay back the US government. You just better hope they decide not to come after you but be prepared if they do.
So, when do your financial obligations end under the affidavit of support?
  • The death of either spouse.
  • The spouse seeking a green card becomes a U.S. citizen.
  • The spouse seeking a green card has worked for 40 quarters in the United States.
  • The spouse seeking a green card moves out of the United States permanently.
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