Understanding I-864 Affidavit of Support and Qualifying Work Credits When Adjusting Status in the U.S.
Posted by: ScottMond Law Firm
March 13, 2012
Topic: Employment Law & Immigration
An I-864 is a special form used by U.S. Citizenship and Immigration Services (“USCIS”) to determine whether any foreign national who seeks to adjust his or her status from a non-immigrant visa (such as an H-1B visa), meets minimum income guidelines. The U.S. Citizen petitioner, for instance a spouse, has an obligation to ensure that their family member will not become a “ward of the state” and end up on public assistance if granted U.S. Permanent Resident status.
A unique issue arises, however, when a foreign national has worked in the United States and has exceeded 40 quarters under the Social Security Act (SSA). An exemption occurs which is briefly explained in this blog post.
The USCIS Website Instructions state the following:
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.
You must use this form instead of Form I-864 with your application for an immigrant visa or adjustment of status if any of the following apply:
You have earned (or can be credited with) 40 quarters of coverage under the Social Security Act (SSA). If you have 40 quarters or SSA coverage, you are exempt from the requirement to file Form I-864. You can acquire 40 qualifying quarters in the following ways: By being credited under section 213(a)(3)(B) of the Immigration and Nationality Act with quarters worked by your spouse during the marriage or a parent during the time you were under 18 years of age; or Working in the United States for 40 quarters in which you received the minimum income established by the Social Security Administration.
An example of the above is where a family member sponsors his or her spouse and is filing an I-130 and I-485 concurrently. The foreign national spouse has worked for many years on an
H-1B visa prior to apply to adjust status to a U.S. Permanent Resident. Can an I-864W (the exemption) be filed in this case rather than the I-864 in this instance? How does one determine whether he or she has the required 40 qualifying credits?
The answer is: The couple would need to get a statement from their local Social Security office as to the quarters which have been credited. He or she would also get credits for any quarters earned by the spouse while married in addition to those he or she earned on their own.
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