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Immigration and Spousal Support - Will the Affidavit of Support Haunt Me?
What is an Affidavit of Support?

For many foreigners who seek to obtain permanent U.S. residence through family-based or employment-based applications, the Affidavit of Support INS Form must be filed. This law was implemented in 1996 to further ensure that foreigners likely to become public charges were not admitted to the U.S. The Affidavit of Support requirement is an inevitable requirement that must be satisfied in order for many foreigners to ultimately obtain legal permanent residence.

The Form I-864, Affidavit of Support is a legally binding contract in which the family sponsor commits to providing financial support to the foreign relative beneficiary. This contract is enforceable for a considerable period of time and does not end by the termination of the family relationship, or by a divorce. The Affidavit of Support can only be terminated once the sponsored immigrant naturalizes or when he or she has worked or can be credited with 40 qualifying quarters of work as defined by the Social Security Act. The contractual obligation also ends if the sponsored immigrant dies or is no longer a lawful permanent resident and has departed the U.S.

Why does the INS require an Affidavit of Support?

For many applicants seeking entry into the United States, the government will require proof that the alien will have adequate financial resources to support themselves while in America. This is the case for certain non-immigrant visas, particularly those where the applicant is not permitted to work while in the U.S. such as visitor visas. People seeking to immigrate to the U.S. must demonstrate that they will not become a "public charge" after entering the U.S. INS Form I-864 creates a legal obligation on behalf of the person who signs it. This legal obligation means that the sponsored immigrants, the federal government or any state government can sue the sponsor if the sponsor fails to support the immigrant.

What are the legal ramifications when a U.S. citizen and a lawful permanent resident decide to get divorced?

Many U.S. citizens are very surprised to learn they are still financially liable to their spouses who obtained their immigrant status through marriage. When U.S. citizens marry foreign nationals, they commit to financially supporting their immigrant spouses by signing Form I-864, Affidavit of Support.

A divorce does not terminate that financial support obligation. Even when no longer married, the U.S. citizen remains financially liable for support, until the sponsored immigrant:

  • The sponsored spouse becomes a U.S. citizen;
  • The sponsored spouse is credited with 40 qualifying quarters of work in the United States. Although 40 qualifying quarters of work (credits) generally equate to ten years of work, in certain cases the work of a spouse or parent adds qualifying quarters. The Social Security Administration can provide information on how to count qualifying quarters (credits) of work;
  • The sponsored spouse becomes subject to removal, but applies for and obtains in removal proceedings a new grant of adjustment of status, based on a new affidavit of support, if one is required;
  • The sponsored spouse ceases to be a lawful permanent resident and departs the United States; or
  • The sponsored spouse dies.

In other words, the U.S. citizen spouse, even if divorced must provide any support necessary to maintain the immigrant spouse at an income that is at least 125 percent of the Federal Poverty Guidelines for their household size (100 percent if the U.S. citizen is on active duty in the U.S. Armed Forces). If the U.S. citizen does not provide sufficient support, the immigrant spouse may sue the U.S. citizen for this support.

If a federal, state or local agency, or a private agency provides any covered means-tested public benefit to the immigrant spouse, the agency may ask the U.S. citizen to reimburse the agency for the amount of the benefits it provided. (Means-tested benefits include food stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) and the State Child Health Insurance Program (SCHIP).)

If the U.S. citizen does not make the reimbursement, the agency may sue the U.S. citizen for the amount that the agency believes it is owed. If the U.S. citizen is sued, and the court enters a judgment against the U.S. citizen, the person or agency that sued may use any legally permitted procedures for enforcing or collecting the judgment. The U.S. citizen may also be required to pay the costs of collection, including attorney fees.

What are the dangers of marrying a foreign national and of signing an Affidavit of Support?

If you think that New Jersey Superior Court is the only avenue to sue for spousal support then you should think again. A foreign national spouse may still be eligible for support from a sponsor, and can sue to enforce that support through federal or state court. Thus, a word of caution to U.S. sponsors that by signing Form I-864; you are agreeing to provide the sponsored spouse whatever support is necessary to maintain her at an income that is at least 125% of the Federal poverty guideline.

Form I-864 is most commonly used for family-sponsored immigrants who seek admission to the United States, or adjustment of their immigration status as a lawful permanent resident. Form I-864 is required as an Affidavit of Support filed by a U.S. citizen on behalf of an immigrant to establish that the immigrant is not excludable from the U.S. as a public charge. The Immigration and Naturalization Act (INA) requires that this affidavit of support be enforceable as a contract. 8 U.S.C. ▀ 1183a(a)(1).

Additionally, several federal courts have "consistently found that Form I-864 constitutes a legally binding and enforceable contract between a sponsored immigrant and the sponsor executing the form." Cheshire v. Cheshire, 2006 U.S. Dist. LEXIS 26602 at *9 (M.D. Fl. May 4, 2006). Government agencies as well as the sponsored immigrant have standing to sue the sponsor for enforcement of the affidavit and support for the alien. By signing Form I-864, the sponsor "acknowledge[s] that section 213A(a)(1)(B) of the INA grants the sponsored immigrant(s) . . . standing to sue . . . for failing to meet . . . obligations under this affidavit of support." See, Form I-864 at 6.

I am getting divorced from my wife and she is originally from the Philippines. I have only been married to her for one year. What is my alimony exposure in the State of New Jersey?

In my opinion, you will be legally required to pay for alimony because you agreed to sign the Affidavit of Support. In the recent case of Naik v. Naik, No. A-6270-05T5 the Appellate Division held that a sponsor/spouse has a duty of support to a sponsored immigrant based upon the provisions set forth in Section 213A of the Immigration and Nationality Act and more specifically form I-864EZ. The Naik court further held that when a sponsoring party signs a form I-846EZ, he or she agrees to provide the sponsored party/immigrant with "any support necessary" to maintain him or her at an annual rate of "not less than 125 percent" of the federal poverty line until a triggering termination event occurs.

In the Naik case, an Indian couple was married in India via an arranged marriage. The husband, just a few days after the marriage, left India to return to New Jersey. The wife remained in India for 15 months. Thereafter, she joined her husband in Englewood, NJ. As part of the immigration process to enable his wife to live in New Jersey, the husband signed a form I-846EZ. In this form the husband agreed to provide her with the support necessary and not less than 125% of the federal poverty line. Once the wife was granted a family-based visa, the parties resided together as husband and wife, although the husband claims the marriage was never consummated. Some three months after her arrival, they began sleeping in separate rooms and eventually the wife moved out.

Thereafter, the husband filed for divorce. The wife filed a motion for pendente lite support, and she received $200 per week. The case went to trial. At trial, the judge denied the wife's request for alimony, the value of the vehicle was equitably distribute, their only asset, and denied both parties' request for counsel fees. Thereafter, the wife filed a motion for reconsideration, claiming that among other things, the judge erred in failing to award her alimony because the form I-846EZ signed by the husband placed an affirmative duty of support upon him. This argument was not raised at trial by the wife. The court denied the motion for reconsideration.

The case was then appealed. The Appellate Division affirmed the lower court's ruling as to equitable distribution and the denial of counsel fees. However, the Appellate Division remanded the issue of support back down to the trial court to determine to what extent, if any, the wife would be entitled to immigrant support under the form I-846EZ. Before remanding the issue to the lower court, the Appellate Division held that the form I-846EZ was enforceable in the New Jersey courts when the obligation that the form creates is against a resident of New Jersey, or is for the benefit of a resident of New Jersey. It also concluded that the sponsored immigrant's own income, assets and other sources of support can reduce the immigration support obligation of the sponsor. Further, if the sponsor and sponsored immigrant are married, then the court must include alimony, child support and the equitable distribution of income producing assets in its calculation of the sponsored immigrant's available resources.

In summary, the Naik court held that Form I-846EZ is a legally enforceable contract "against the sponsor by the sponsored alien" and that an action to enforce the contract can be brought "against the sponsor in any appropriate court." Moreover, the Appellate Division held that the sponsor is not automatically required to support the sponsored immigrant at 125% of the federal poverty guidelines for the appropriate family unit size. Rather, the sponsor's obligation is to pay any deficiency needed to reach the 125% level once the sponsored immigrant's own income, assets and other sources of support are accounted for.

What is the main point of the Naik holding?

The main point of the Naik case is that sponsoring an immigrant to come to this country could also include an obligation of support based upon the sponsored immigrant's need and whether or not he or she can stay above 125% of the federal poverty line. The act of getting divorced by itself does not terminate your obligations under an affidavit of support. The Affidavit of Support is not terminated by a divorce no matter how long the marriage lasts. It is important to emphasize that the spouse's sponsor's financial obligation in the form of immigrant support is based upon the contractual obligations created by the signature of the form I-846EZ. The major lesson to learn from the Naik case is that people should be very careful when they complete any immigration forms that promise to support the application. These forms are contracts, and they are legally enforceable if there is any future litigation.

How long does the affidavit of support remain in effect?

The Affidavit of Support remains in effect until the sponsored alien either naturalizes or earns/is credited with 40 qualifying quarters, as defined under social security law. The regulations also allow for the termination of the affidavit in the event the sponsor or sponsored alien dies or the sponsored alien abandons lawful permanent resident (LPR) status and leaves the United States.

It is important to emphasize that the Affidavit of Support does not terminate if there is a divorce between the sponsor and the sponsored alien. In fact, a divorce eliminates the ability of the parties to combine social security quarters earned during marriage and terminate the contract in that manner. In those situations the sponsor remains liable for maintaining the ex-spouse until the alien either dies, naturalizes, or works ten years and satisfies the 40-qualifying quarter requirement. It can be argued, therefore, that Congress has created a disincentive for alien spouses to naturalize or work after divorcing the citizen/LPR spouse, since doing so would eliminate or restrict their ability to receive guaranteed maintenance from the sponsor at a level not less than 125 percent of the federal poverty income guidelines.

What are some possible defenses that can be used against the enforcement actions by a sponsored spouse/alien?

Sponsors who wish to defend against enforcement actions brought by sponsored aliens might consider raising some of the following arguments:

  • Ambiguity. While the statute and regulations may be clear, the Affidavit of Support itself is ambiguous as to the sponsor's obligation to maintain the sponsored alien. It is the language in the I-864 that determines whether it is an enforceable contract, not what is contained in the statute and regulations. Most of the form's ten pages relate to instructions on how to complete it, and most of the contractual language refers to the sponsor's obligations to reimburse the government for benefits received by the sponsor. Even the few places that mention the sponsor's promise to maintain the alien could be interpreted as a promise to ensure that he or she does not obtain these benefits. There was a reasonable misunderstanding among the parties over key aspects of the affidavit.
  • Vagueness. The contract is void for vagueness, since one of the key terms - the duration or term of the contract - is too indefinite. In fact, it is telling that the I-864 never uses the term "contract," but rather the term "affidavit of support." The affidavit only terminates when one of five events happen. Decades could pass before one of the parties dies or the sponsored alien naturalizes, abandons LPR status, or acquires 40 qualifying quarters. All of these conditions are outside the control of the sponsor.

    Another key term - the amount of potential liability - is also left wide open. For the contract to be enforceable, the sponsor should be able to at least estimate the limit of his or her liability. Given that the sponsor is required to reimburse the government for any means-tested benefits received by the sponsored alien, including Medicaid, and the alien is capable of running up tremendous medical expenses, the sponsor is incapable of predicting the amount of potential liability. The benefits reimbursement provision could potentially force the sponsor to expend far more money than he needed to evidence in order to qualify as a sponsor.
  • Lack of Consideration. There is a lack of consideration. The sponsor's promise to support the intending immigrant was a gift, which is unenforceable. Furthermore, the sponsor executed the affidavit only because without the Affidavit of Support the alien would be found inadmissible under INA ▀ 212(a)(4). But consular and INS officials still retain the discretion to deny the application and find the intending alien likely to become a public charge, even when a satisfactory affidavit is submitted. Hence, the sponsor is receiving little in return for executing the document.
  • The Affidavit is an Adhesion Contract. The Affidavit of Support is an adhesion contract, since the parties (the government and the sponsor) are in disparately unequal bargaining positions. The sponsor has no choice but to sign the affidavit if he or she wants the alien family member to reside lawfully in the United States. Faced with the possibility of permanent separation from a spouse or child, the sponsor has no option but to sign the form.
  • The Intent of the Sponsored Alien. The sponsored alien never intended to enter into a lasting marital relationship, but was merely using the sponsor to gain immigrant status. If the sponsor can show that the alien committed fraud, this is a complete defense to any future liability.

How should a lawyer advise his client if he wants to get married to a foreign national and sponsor her?

It is even more important for a lawyer to fully explain the potential legal obligations of executing an Affidavit of Support. It is important to provide a realistic assessment of the probability of actions to enforce the Affidavit of Support. Moreover, counsel should advise a client to consider drafting a premarital agreement where the sponsored alien-spouse renounces any claim against the sponsor for spousal support under the Affidavit of Support, and agrees to indemnify the sponsor should the alien access any means-tested public benefits.

My daughter is a successful business woman. She has recently married a foreign national from Europeů

The marriage has been a disaster! Can my daughter be required to support her former husband even though they have been married a little more than one year?

Because of the short-term nature of her marriage, your daughter may have no alimony exposure to her husband. One of the major requirements of determining an alimony award is the length of the marriage. The shorter the marriage, then the less the alimony award. However, she does have a risk of having to support her husband under the immigration laws if she did agree to be his sponsor for immigration law purposes.

If your daughter signed and filed an Affidavit of Support as part of her husband's application to become a permanent resident, then the answer will turn on whether or not her husband's application for permanent resident status has been granted. If it has, then your daughter may well have an obligation to provide financial support for her husband, even thought it was a short-term marriage. If it has not been granted, then your daughter should immediately take the necessary steps to withdraw and disavow her Affidavit of Support before her husband obtains his permanent residence status.

The Affidavit of Support creates a binding contract between the sponsor and the United States Government which makes the income and assets of the sponsor available to the sponsored immigrant to maintain him at an income that is at least 125% of the Federal Poverty Guidelines for his or her household size. This obligation is enforceable against the sponsor (meaning, your daughter) by the sponsored immigrant (meaning, her husband).

The sponsor's obligation to provide financial support to the sponsored immigrant can continue for a long time. For example, the obligation continues until the sponsored immigrant either (I) becomes a U.S. citizen; (ii) has been credited with 40 calendar quarters of coverage under the Social Security Act (generally speaking, has lawfully worked in this country for ten (10) years); (iii) has lost lawful permanent resident status, and departed the United States; or (iv) dies. Divorce does not terminate the sponsor's obligations under the Affidavit of Support.

If your daughter's husband has obtained permanent resident status, and if your daughter submitted an Affidavit of Support as part of his application for permanent resident status, then she faces a serious problem. She may well have responsibility for her husband's financial support for the period of effectiveness of the Affidavit of Support. She may also have liability to reimburse the federal government and state and local governments if her husband receives means-tested public benefits during the period of effectiveness of the Affidavit of Support.

How can the sponsor/spouse minimize his alimony exposure if he has already executed an Affidavit of Support?

One way to achieve this is to have the alien sign what is known as a save harmless agreement in which the alien is obliged to pay back the sponsor if the sponsor has to reimburse a government agency or has to support the alien directly. To make this agreement effective some or all of the following provisions might be included in the save harmless agreement.

  • A provision whereby the alien makes certain representations which might result in his or her loss of permanent residence should it turn out that any representation is not true. For example, if the alien represents that he or she intends to seek naturalization as soon as eligible, which would terminate the obligation of support, and the alien fails to do so, this might call into question whether or not the alien made a fraudulent representation in order to induce the sponsor to petition for him or her. Depending on all the circumstances, this could result in a revocation of the alien's permanent residence. This would be a powerful incentive to the alien to seek naturalization at the earliest possible moment.
  • A provision specifying that the sponsor at all times retains the right to render support in kind, such as food, clothing and lodging. This could make it very unattractive, as opposed to cash, for the alien to sue for money damages.
  • A provision that in the event of divorce, the alien agrees to establish a fund, by lump sum or installments, in trust, for the purpose of reimbursement of the sponsor if the sponsor were required to pay support under the affidavit of support. The funds would be released to the alien only if and when the support obligation were terminated by naturalization, work for the required ten years, or otherwise.

I am getting divorced from my wife whom I also sponsored on a family-based immigration petition. What type of alimony can I expect to pay?

Each case is fact sensitive, and is decided on a case by case basis. However, there is good news. If the sponsored spouse just thought that she could just sit back and collect support in the amount of 125% of the poverty line, then she should think again. The Affidavit of Support only requires the sponsor to provide whatever support is necessary to maintain the sponsored immigrants annual income at a level of at least 125% of the federal poverty guidelines.

The statute does not say a sponsored immigrant is entitled to a lifetime of payments in the amount of 125% of the poverty level. It simply ensures that an immigrant will have access to support that is at least that much. That means that sponsors are only required to pay support if the sponsored immigrant has an annual income of less than 125% of the poverty line. Any income a sponsored immigrant makes is deducted from the amount that the sponsor is required to pay in support. In addition, one court has indicated that once a sponsored immigrant has sufficient assets, earnings or earning capability of at least 125% of the federal poverty level, she would not be entitled to continuing payments from the sponsor. Ainsworth, 2004 U.S. Dist. LEXIS 28962 at *5. It is not clear whether the court meant that the sponsored immigrant would not be entitled to support payments for that year (which is consistent with other case law) or that acquiring such assets and income would actually terminate the support obligations under the Affidavit of Support.

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