When filing Form I-485, Application to Register Permanent Residence or Adjust Status, many employment-based applicants pause at a confusing question: “Request for Exemption for Intending Immigrant’s Affidavit of Support under Section 213A of the INA.”
This section often causes anxiety because it references a form—Form I-864, Affidavit of Support—that is familiar mostly to family-based applicants. The good news is that for most employment-based green card applicants, this requirement does not apply. Still, understanding the rule and marking the correct box is essential to avoid unnecessary Requests for Evidence (RFEs) or confusion at USCIS.
What Is the Affidavit of Support?
The Affidavit of Support (Form I-864) is a contract between a sponsor and the U.S. Government. By signing it, the sponsor promises to maintain the intending immigrant at an income level at least 125% of the Federal Poverty Guidelines until the immigrant becomes a U.S. citizen or earns 40 qualifying quarters of work (roughly 10 years).
This financial guarantee is legally binding. Sponsors who sign Form I-864 can even be sued by the immigrant to enforce support obligations. It is a safeguard mainly used in family-based immigration, where sponsorship is based on personal relationships rather than employment or merit.
The Legal Background — Section 213A of the INA
Section 213A of the Immigration and Nationality Act was created through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Congress introduced it to ensure that family-sponsored immigrants would not become dependent on public assistance.
Under INA § 213A(a)(1), an Affidavit of Support is required for most immigrants seeking permanent residence based on a petition filed by a relative. However, INA § 213A(a)(2)(A) provides an important limitation. The affidavit requirement does not apply to employment-based immigrants unless the petitioning employer is a relative of the applicant or a relative owns at least five percent of the business entity that filed the Form I-140.
This language effectively excludes the vast majority of employment-based immigrants from having to provide Form I-864.
When the I-864 Is Not Required?
If your Form I-140 petition was filed by your employer and that employer is not related to you, you are not required to submit Form I-864. The law simply does not apply to you.
Common examples include:
- A professional sponsored by a company where no family relationship exists
- An EB-1A self-petitioner demonstrating extraordinary ability
- A National Interest Waiver applicant filing without an employer
- A multinational manager sponsored by a corporation unrelated by family ties
In these cases, the I-485 should indicate that the applicant is not required to submit or request an exemption from the affidavit requirement.
When the I-864 Is Required in Employment-Based Cases?
The Affidavit of Support must still be filed in a narrow category of employment-based cases. It is required when a qualifying relative is involved in the petition. This includes situations where:
- A relative filed the I-140 petition on behalf of the applicant, or
- A qualifying relative owns five percent or more of the petitioning company
This prevents applicants from avoiding the family-based financial sponsorship rules through a business ownership structure. The relative must complete Form I-864 and demonstrate adequate income or assets to meet the 125% poverty guideline threshold.
How to Complete the I-485 Section Correctly?
In the January 20, 2025 edition of Form I-485, Part 3 is titled “Request for Exemption for Intending Immigrant’s Affidavit of Support under Section 213A of the INA.” The form provides six options (1.a through 1.f).
For most employment-based applicants, the correct selection is:
1.e. “None of these exemptions apply to me and I am not required by statute to submit an Affidavit of Support Under Section 213A of the INA, nor am I required to request an exemption.”
Selecting this option tells USCIS that the rule does not apply to you. You are not asking for a waiver; you are confirming that you are outside the statute’s scope. No separate form or explanation is required.
Optional Clarification or Cover Letter Language
Although not mandatory, some applicants or attorneys add a brief clarification in Part 14 (Additional Information) or in the cover letter for the adjustment package.
Example statement:
“The applicant is applying for adjustment of status under an approved employment-based Form I-140 petition filed by the petitioner employer, who is not related to the applicant. Under INA § 213A(a)(2)(A), employment-based immigrants whose petitioning employer is not a relative are exempt from the Form I-864 Affidavit of Support requirement.”
Including a note like this is optional but can help avoid unnecessary questions or RFEs.
Common Mistakes in Employment-Based Filings
- Checking the wrong box on Form I-485, particularly selecting 1.f instead of 1.e
- Submitting an unnecessary Form I-864, which can confuse the reviewing officer
- Failing to disclose when a qualifying relative owns five percent or more of the company
- Misunderstanding that self-petitioners in EB-1A, NIW, or EB-5 cases are automatically outside the I-864 requirement
Avoiding these mistakes keeps the application clear and consistent with statutory and form instructions.
Why USCIS Still Includes This Question?
USCIS removed the standalone Form I-864W (Request for Exemption) in the 2025 revision of Form I-485. Instead, all applicants now address this issue directly within the I-485. This change ensures that every adjustment applicant—whether family-based or employment-based—makes an explicit statement about their applicability under Section 213A.
This approach simplifies adjudication and helps USCIS confirm at the outset that no Affidavit of Support is missing or incorrectly omitted.
Key Takeaways
- Most employment-based applicants are exempt from the I-864 requirement
- Select 1.e on Form I-485 if your employer is not a relative
- Submit Form I-864 only when a qualifying relative owns five percent or more of the petitioning business
- Self-petitioners, such as EB-1A or NIW applicants, are automatically outside the requirement
- No separate addendum is required when selecting 1.e, but a short clarification may be included for completeness
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Immigration eligibility and filing requirements vary depending on each individual’s circumstances. Applicants should consult an experienced immigration attorney to determine whether Form I-864 applies to their specific case.
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