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Form I-134, Affidavit of Support, is a relic from pre- Illegal Immigration Reform and Immigrant Respon-sibility Act of 1996 (IIRAIRA) days. Now, its primary use is in connection with K visas. It may also be used for other nonimmigrant visa (NIV) applications, including B-1/B-2 visitors. It is used to meet public charge inadmissibility concerns. It is not used in immigrant visa or adjustment of status applications. These applica-tions are subject to a different provision of the Immigration and Nationality Act (INA) requiring submission of an I-864, Affidavit of Support under INA §213A.

In contrast to the I-864, the I-134 is an optional form. It is not required for any NIV application, but can be submitted preemptively to allay public charge concerns on the part of the adjudicator. It can also be submitted in response to an adjudicator’s request. As a matter of practice, an I-134 should always be submitted in con-junction with K visa applications. The K petitioner will need to execute an I-864 affidavit of support at the adjustment stage, so there is no strong reason to risk denial of the visa on public charge grounds by failing to submit an I-134 with the visa application.

QUESTION 1 – INFORMATION ABOUT SPONSOR’S CITIZENSHIP OR IMMIGRATION STATUS

Unlike the I-864, there is no requirement that an I-134 be signed by a U.S. citizen (USC) or lawful perma-nent resident (LPR). Persons in valid nonimmigrant status may also execute an I-134. For nonimmigrant sponsors, information regarding employment authorization should be provided to document that the resources being promised for the foreign national’s support are earned in compliance with the immigration laws.

Supporting documentation of the status of the sponsor should be provided. In other words, if the sponsor is a naturalized citizen, provide a copy of the naturalization certificate. If he or she is an LPR, provide a copy of both sides of a current (unexpired) alien registration card (green card).

Because there is no requirement that the sponsor have immigration status or be domiciled in the United States, an I-134 sponsor theoretically could be a foreign national living outside the United States, for instance, a relative overseas. In that scenario, it would be challenging to document the sponsor’s income/assets and such an I-134 likely would not be given much weight by an adjudicator.

QUESTION 2 – AGE AND RESIDENCE The sponsor must be at least 18 years old. Date of residence should be listed from when the sponsor had

her principal residence in the United States.

QUESTION 3 – INFORMATION ABOUT THE PERSON FOR WHOM THE AFFIDAVIT IS EXECUTED

This section identifies the person who is seeking to enter as a nonimmigrant. He or she must overcome public charge inadmissibility considerations. In practical terms, it is the principal nonimmigrant visa appli-cant who should be listed here. Spouses and children should be listed only if they are seeking to enter at the Articles do not necessarily reflect the views of the American Immigration Lawyers Association. * Christopher Anders, an associate with Parker, Butte and Lane, P.C., focuses his practice on family immigration, naturaliza-tion, deportation/removal litigation, and asylum. He has presented at CLE events on topics ranging from naturalization to visa availability to crime victims. He is a regular guest lecturer on asylum law at Lewis & Clark Law School. Before practicing law he worked as an immigration paralegal, taught English as a Second Language both in the United States and in Latin America, took care of a lighthouse, and worked as a gourmet chef.

COMPLETING FORM I-134, AFFIDAVIT OF SUPPORT by Christopher Anders*

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same time as the principal, either as dependents on the principal’s application or as principal beneficiaries of nonimmigrant visa applications in the same category filed at the same time. For example, a family group would all file separate applications for B-2 visitor visas but a single I-134 could pledge support for the entire family group.

QUESTION 4 – PURPOSE The I-134 is primarily used in connection with K visas. Because a K visa is technically a nonimmigrant vi-

sa, INA §213A does not apply, even though the K beneficiary is an intending immigrant. That is why the I-134 is used to overcome the public charge ground of inadmissibility for K visa applicants.1

In lieu of a money bond, an alien NIV applicant may submit an I-134 to show, in essence, that someone is willing to take responsibility for his or her living expenses while in the United States.

Note that an I-134 is not used for immigrant visa or adjustment of status applicants. These immigrants are required to submit the I-864 affidavit of support.2

QUESTION 5 – PROMISE TO SUPPORT, GIVE BOND, AND ASSURE MAINTENANCE OF NIV STATUS

This section clarifies that the sponsor promises to “receive [presumably meaning offer living quarters], maintain and support” the NIV applicant. It goes further and promises to give bond if requested to assure that the nonimmigrant does not become a public charge. Beyond these purely financial obligations, the sponsor also promises to guarantee that the nonimmigrant will maintain his or her status and depart when required. These obligations are far-reaching; they would include ensuring that the nonimmigrant does not work without authorization or commit crimes that constitute status violations. Depending on the NIV classification, the rules regarding maintenance of status could be complicated and contingent on factors outside of the sponsor’s control.

QUESTION 6 – CONTRACTUAL CONSIDERATIONS AND INCOME DEEMING FOR PUBLIC BENEFITS

This section affirms that executing an I-134 is the “undertaking” noted in INA §213. It notes that the spon-sor may be sued and his or her income may be deemed if and when the nonimmigrant applies for certain means-tested public benefits. Income-deeming means that the sponsor’s income is considered to be available to the nonimmigrant in determining eligibility for benefits.

Note that an I-134 is not a binding contract.3 An I-134 is basically a sworn promise. Note: As a matter of professional ethics an attorney must be clear as to whether he or she is representing

the I-134 sponsor, and if not, advise the sponsor to seek independent counsel regarding the obligations under-taken by signing. An attorney also may want to advise an I-134 sponsor to seek expert advice regarding liabil-ity that the sponsor may incur under the provisions of the various public benefits laws implicated by the I-134.

1 See INA §§212(a)(4) (public charge ground of inadmissibility), 213 (allowing admission of aliens determined likely to be a public charge upon giving of bond or undertaking). 2 See INA § 213A. For other unusual situations where an I-134 is used, see 9 FAM 40.41 N4.6-3(b)(self-petitioning spouse of deceased USC, VAWA self-petitioners, returning resident aliens, diversity visa applicants). 3 8 CFR §213a.5 (an I-134 does not give rise to obligations under INA §213A); contrast INA § 213 (permissive language re: suit on the bond or undertaking) with INA §213A (mandatory, detailed language requiring that the affidavit of support be an enforceable contract, requiring the person executing it submit to jurisdiction for suits for demand of repayment and specifying procedures for enforcing the contract); see also Tornheim v. Kohn, 2002 U.S. Dist. LEXIS 27914 (summarizing state court decisions and legislative history of IIRIRA for the proposition that an I-134 is not a legally binding contract).

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QUESTION 7 – INFORMATION REGARDING SPONSOR’S EMPLOYMENT, INCOME AND ASSETS

This section documents the income and assets that the sponsor relies upon to be able to support the nonimmigrant. This documentation should be provided in as much detail as possible. At a minimum, the sponsor’s most recent federal income tax return (Form 1040 or equivalent) with all supporting forms and schedules (i.e., W-2, 1099) must be submitted. In addition, a six-month history of paycheck stubs and bank statements are helpful. For self-employed people, other documents may show current income, such as invoic-es, checks from vendors, monthly profit and loss statement (P&L) or whatever documents sources of income. If using assets, submit evidence of ownership, such as deeds or titles for real property.

QUESTION 8 – DEPENDENTS This section lists dependents whom the sponsor supports. The purpose of this information is to determine

how many people count on the sponsor’s income and assets for their maintenance. The “partially dependent” column most commonly will be children whom the sponsor only has partial custody of or who live part-time with the sponsor.

QUESTION 9 – PREVIOUS SUBMISSION OF AFFIDAVITS OF SUPPORT The sponsor should list any person for whom he or she previously submitted an affidavit of support (either

I-134 or I-864), in connection with a different NIV application or an immigrant visa or adjustment applica-tion. Include the date submitted. The point is to describe how many people depend on the sponsor’s income.

The situation may arise where the I-134 sponsor signed an I-864 for someone who is not the sponsor’s de-pendent. For example, this would happen if the I-134 sponsor submitted an I-864 as a joint sponsor for an immigrant visa or adjustment application. In this case the person would be listed under Question 9 but not under Question 8.

QUESTION 10 – PREVIOUS FILINGS OF VISA PETITIONS The sponsor should include any family visa petitions (I-130) he or she filed on behalf of relatives. The in-

structions do not make this explicit, but it is doubtful whether the question pertains to nonimmigrant visa peti-tions or employment-related visa petitions that the sponsor may have been involved with. In most cases a per-son does not submit for nonimmigrant or employment-related immigrant visa petitions. These petitions typi-cally are filed by organizations, or in the case of certain NIVs, self-petitioned by the person seeking admis-sion.

QUESTION 11 – SPECIFIC CONTRIBUTIONS This is an opportunity for the sponsor to respond in narrative form, explaining how he or she intends to

support the intending NIV beneficiary. Be as specific as you realistically can. For example, the response could be:

I will provide John Doe (NIV applicant) with a place to live in my family home. I will provide food for him during his stay in the United States. I will provide him with transportation while he is staying with us. I will give him spending money in the amount of $XX per week. In addition, I am paying for his round-trip transportation from his country of origin to the United States. If a sponsor is not willing to offer a specific form of support, he or she should check the “do not” box. In

this case the sponsor is making her resources available only if needed.

OATH & AFFIRMATION By signing the form, sponsor affirms that he or she read portion of the instructions regarding liability for

public benefits received by the NIV applicant. When the attorney is preparing the form, it is important to pro-vide the sponsor with a copy of the instructions so he or she can truthfully sign this acknowledgement.

The sponsor signs under penalty of perjury. It is not necessary to notarize the sponsor’s signature. An I-134 should be submitted with the original signature.

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RELEVANT STATUTORY PROVISIONS, REGULATIONS AND GUIDANCE INA §§212(a)(4), 213, 221(g)(3) 8 Code of Federal Regulations (CFR) §§213, 213a 22 CFR §40.41 9 Foreign Affairs Manual (FAM) 40.41 (including Notes and Procedural Notes)

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Sample Form I-134, Affidavit of Support

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