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November 10, 2008: Affidavit of Support Issues

Affidavit of Support Issues

Greetings. I’m having trouble with the affidavit of support in order to sponsor my husband. Reason being I am currently unemployed and don’t have anyone to turn to for sponsoring help. My husband is a professional but can’t practice in his field until he receives a work permit. My question is can we submit Form I-765 first? I know the right thing to do is to submit the entire I-485 package, however the affidavit of support is preventing us from doing so.
— Anonymous

It is not possible for your husband to file with the United States Citizenship and Immigration Services (USCIS) Form I-765, Application for Employment Authorization without also filing Form I-485, Application to Register Permanent Residence or Adjust Status. Generally, you must have either concurrently filed Forms I-485 and I-765 (as would be the case in an initial filing) or be able to prove that you have a pending I-485 (as would be the case in an I-765 replacement or renewal filing). If you attempt to only file the Form I-765, without proof of a pending I-485 application, it will be rejected by USCIS.

All adjustment of status Applicants must file a file Form I-864, Affidavit of Support, signed by the original Petitioner. The Petitioner (you) must provide proof of their most recent U.S. Individual Income Tax Returns and current employment. Your income must meet 125% of the 2008 Poverty Guidelines for the appropriate household size. If it does not, then you may use your husband’s current income if the income will continue to come from the same source after he obtains lawful permanent resident status.

If neither scenario works, then you may be able to use “assets that can be converted into cash within one year and without considerable hardship or financial loss to the owner.” This may include the net value of your home and bank accounts, among other types of readily convertible assets. If you don’t have any assets and you and your spouse’s combined income does not meet 125% of the Guidelines, then the Petitioner will have to find a joint sponsor who is a United States citizen or lawful permanent resident who does meet it. This joint sponsor does not have to be a relative.

It would be wise for you to contact an experienced immigration attorney to advise you of all of your options for properly filling out the Affidavit of Support and the filing of the entire immigration package.

Michael Shane and Evan Shane, Immigration Attorneys

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