Q: I read where you outlined the procedure and that it could take up to 12 years to sponsor a brother or sister, if approved.

I was advised that you have to have a certain salary to sponsor someone. What if you don't work, can your spouse use his or her salary to meet the requirements? Or, can another brother or sister with a 'Green Card' use his or her salary as a guarantee?

- E. C-K

A:All petitioners (person doing the filing) must complete and sign an affidavit of support (AOS), indicating their willingness to financially support the beneficiary (the intending immigrant).

This commitment to support the beneficiary is a binding contract that the beneficiary can sue the petitioner to enforce. The commitment to support the intending immigrant extends until the beneficiary becomes a United States (US) citizen, has worked for 10 years in the country, is no longer a Green Card holder and has left the US, obtains a new Green Card or dies. Divorce does not end the support obligation under the AOS. The enforceability of the AOS as a contract has led to the hesitation and unwillingness on the part of some persons to sign the document.

Beneficiary

The AOS requires that the sponsor earn a certain income before the beneficiary can obtain the required visa. The amount of income needed to qualify depends on the number of persons in the sponsor's household, the number of intending immigrants, whether the sponsor is already obligated to previous immigrants, and the number of persons claimed as dependent by the sponsor on their federal income tax returns.

A signed AOS that meets the income requirement must be filed in every family immigrant petition case and some employment-based cases in order for the intending immigrant to overcome the likelihood that he will become a public charge on the US government. While this obligation to support the immigrant exists, the immigrant is ineligible for certain 'means tested' public benefits from local, state and federal governments. If by any chance the immigrants receives benefits from any government agencies, the sponsor and any co-sponsor will be required to repay the government the benefits received by the immigrant.

Even if the sponsor is unemployed, retired or a student he must complete an AOS and submit it to the relevant department - Homeland Security if it is an adjustment of status petition, or the State Department if the petition is being consular processed at the US Embassy.

Guidelines

An AOS must be accompanied by the sponsor's latest federal income tax return, W-2 or 1099 forms for the relevant years, current employment letter and recent pay stub. If it is determined that the sponsor does not meet the income requirements, there are a couple options that can be exercised.

First, the sponsor can choose to use assets to cover the deficit. For example, if the guidelines indicate that the sponsor should earn US$40,000 and he earns US$30,000 and if he have US$50,000 in documented liquid assets (five times the difference) they can produce the proof and the AOS will be accepted. Some examples of liquid assets are equity in property, money in the bank and cash value in a life insurance policy. In some cases the assets of the immigrant may also be used to satisfy the requirements.

Second, the sponsor can find a co-sponsor or use the income of a household member. A co-sponsor or the household member must be a permanent resident or a US citizen; they do not need to be related to the intending immigrant, and they must submit all the supporting documents as the original sponsor. The same commitment extends to the co-sponsor or the household member as with the original sponsor.

Immigrant's income

Under certain limited conditions the intending immigrant's income may also be used to satisfy the income requirement.

It is important that if you are a petitioner or beneficiary you begin to determine whether the AOS will present a problem. So many intending immigrants are otherwise eligible for permanent residency, but are unable to migrate because they cannot secure an approved AOS. Well-meaning sponsors or co-sponsors will tell you that they earn a certain salary but when it comes down to their tax return and their declared income, it does not qualify them as a financial sponsor.

Dahlia A. Walker-Huntington, Esq is a Jamaican American attorney who practises law in Florida in the areas of immigration, family, corporate & personal injury. She is a mediator, arbitrator and special magistrate in Broward County, Florida. email us at editor@gleanerjm.com or info@walkerhuntington.com.