Every so often (quite often actually) I see people challenging the understanding that DV lottery cases use the I-134. They have read about the I-864 (Affidavit of Support), and often see it listed as a requirement for immigrant cases. However, the I-864 cannot be used for DV lottery cases – and in this post I will explain some differences and why that difference exists. It will offer a little more technical depth than I would usually include, so if you just want the punchline it is “use the I-134 in DV cases”.
As discussed before in this post, there is standard requirement that any immigrant case be assessed to make sure the immigrant will not become a public charge. In Employment based cases, that is implied by the job offer itself – the employer is the “petitions”. In Family based cases there is a member of the family who “petitions” for the immigrant and therefore takes responsibility for the immigrant. In DV cases there is no “petitioner” – so the matter is a little different.
If there is a petitioner the government can require a contract to require the petitioner to sponsor the beneficiary and avoid the government having to pick up the bill. This contract is the I-864 – a legally binding agreement where the sponsor can be held responsible for financial support of the beneficiary (up to 125% of the federal poverty guidelines). There can even be co-sponsors. The obligations of the I-864 stay in place until the immigrant has worked for 40 quarters (10 years), becomes a citizen, or leaves the USA. The sponsor is also considered “free” of the obligation upon their death. Happy days.
If there is not a petitioner as in DV cases a legally binding contract is not possible. This is important to understand correctly. The I-134 must be completed by a legal US resident, and the information provided on the form must be true – because the person completing the form (the sponsor) could be charged with perjury (lying) if the information provided is not true. However, the sponsor cannot be forced to provide the help offered in the form. For this reason there is no need to apply to the 125% standard, and the amount of income considered sufficient is 100% of the federal poverty guideline. In terms of the term of the obligation, well there is no legal obligation, so that isn’t an issue. However, we have seen cases where the sponsor has put some time limit on the support, and that has caused the CO to disregard the I-134.
The public charge information is a part of immigration law (INA), but for a good description of how the laws are implemented we can turn to the US Department of State Foreign Affairs Manual on public charge matters. In terms of DV cases not using the I-864 that is covered several times, but most clearly stated on page 15/16 of the linked document. That section covers a number of main concepts about the I-134. Reading this one section answers almost all questions about the I-134, so I am including some areas of interest/relevance.
9 FAM 40.41 N5.6-3 Use of Form I-134, Affidavit of Support
(This affidavit, submitted by the applicant at your
request, is not legally binding on the sponsor and should not be accorded the
same weight as Form I-864. Form I-134 should be given consideration as one
form of evidence,
c. If you determine that any of the following types of applicants need an Affidavit
of Support to meet the public charge requirement, they may use Form I-134,
as they are not authorized to use Form I-864 or I-864W:
(1) Returning resident aliens (SBs);
(2) Diversity visa applicants (DVs); and
(3) Fiancé(e)s (K1s or K3s)
d. The simple submission of Form I-134, Affidavit of Support, however, is not
sufficient to establish that the beneficiary is not likely to become a public
charge. Although the minimum income requirements of Form I-864, do not
apply in such cases (e.g., the 125 percent minimum income amount which is
only required by the I-864), you must make a thorough evaluation of other
factors, such as:
(1) The sponsor’s motives in submitting the affidavit;
(2) The sponsor’s relationship to the applicant (e.g., relative by blood or
marriage, former employer or employee, schoolmates, or business
(3) The length of time the sponsor and applicant have known each other;
(4) The sponsor’s financial resources; and
(5) Other responsibilities of the sponsor.
DV lottery cases use the I-134