Home Op-Ed Before you sign that Affidavit of Support – By Ogochukwu Victor Onwaeze

Before you sign that Affidavit of Support – By Ogochukwu Victor Onwaeze

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Citizens of the United States are frequently approached by family and friends applying to immigrate to the United States to provide an affidavit of support to aid in the consideration of their application. The Department of Homeland Securityrequires such persons to file an affidavit of support to ensure they will not become a public charge when they get to the United States. The applicant is required to submit either a form I-864 or if not applicable, a form I-134. There are a few differences between the two, but the general purpose of both is to provide an affidavit that the sponsor, will provide financial support for the applicant during the period that the affidavit of support will be in effect.

Most citizens that are requested to act as sponsors and provide an affidavit of support on behalf of friends or family members, do so without thought to the legal implication of signing the affidavit of support. Although the legal consequences of signing the affidavit of support are fully spelt out in part 8 of form I-864, most sponsors do not pay attention to that section before signing the affidavit. This is understandable since the person being sponsored is usually a family member or very close friend.

The purpose of the affidavit of support is to ensure that the sponsored immigrant has enough financial support to live in the United States without concern of becoming reliant on the United States government for public support. This is the sense in which most people understand the affidavit of support. This is, that if the applicant applies for any public benefits program such as food stamps and welfare, then the sponsor will be responsible to reimburse the government for any monies paid to or on behalf of the applicant. Most people also assume that the obligation lasts for three or so years. Both assumptions are incorrect. The obligation of the sponsor goes beyond food stamps and welfare benefits and cover any kind of public means tested program, including Medicare and other health benefits.

More importantly, in addition to ensuring that the applicant does not become a public charge, the affidavit of support is a contract between the sponsor and the applicant that the sponsor will provide financial assistance to the applicant at 125% of the federal income poverty guidelines. This second aspect of the affidavit of support is not understood by most sponsors and will be explained fully below.

The law regarding affidavits of support is set forth in the Immigration and Nationality Act sections 212(a)(4) and 213A as codified in the Code of Federal Regulations 8CFR 213a.

If the sponsored immigrant receives any “means-tested public assistance”, the sponsor is responsible for repaying the cost of those benefits to the public agency that provided it and may be sued by such agency for recovery of the monies spent on or provided to the applicant. As such, if the applicant, after emigrating to the United States applies for and receives
Medicare, for example, and is treated at the hospital and the bill for such treatment is paid by the Medicare, the sponsor can be sued by that agency to recover the cost of the treatment. This could be significant, especially if the applicant has a serious medical condition that requires expensive and prolonged care. When it is considered that many sponsors sign the affidavit of support to allow whole families (sometimes up to five or more family members) to immigrate, the financial nightmare that a sponsor may face in the future can be enormous. Consider, a sponsored immigrant and family of four
that applies for and receives section 8 housing subsidy of $1500.00 per month and food stamps of $150.00 per person per month. In that case, the sponsors obligation for which they can be sued by the federal agency is $2250.00, for the period the the receive the beneftis and the affidavit of support is enforceable.

A critical factor is that once signed, the sponsor cannot withdraw or terminate the contract. There are only five ways to terminate the obligation arising from the signing of an affidavit of support. (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. If none of the first four factors apply, then the enforceability period is determined by factor number five which typically equals ten years of employment. If the employment history of the sponsored immigrant is not consistent, it will take more than ten years to meet this requirement. In fact, if the sponsored immigrant never works, the obligation arising from the affidavit of support will subsist until one of the other four factors kick in.

Also, it does not appear that a sponsor can evade their obligation arising from the affidavit of support just because the sponsor’s own income has diminished in the years after the signing of the affidavit of support. As such, the sponsor is still on the hook for any monies paid out by a government agency, even if they lose their job, have retired and no longer working or have increased obligations of their own.

As stated above, it is the second aspect of the affidavit of support that is not understood by most people signing the form as sponsor. That is, the affidavit of support creates a contract between the sponsor and the immigrant that the sponsor will provide financial support for the immigrant at a level equal to 125% of the federal income poverty guideline for the period during which the affidavit of support is in place. The sponsored immigrant has a personal right to enforce this contract against the sponsor. For 2017, the guideline amount is as follows

For families/households with more than 8 persons, add $4,180 for each additional person. The figures are slightly higher for Hawaii and for Alaska. A sponsor of a family of 5 to the United States, is obligated to provide support to them of approximately $3000.00 per month. [$28,780.00 X 1.25 / 12 = $2997.92] This is in addition to any obligation arising from the receipt of public benefits by the sponsored immigrant, but the amount of cash or cash equivalent aid received from the public agency is credited as income to the sponsored immigrant for the purposes of determining if the amount owed by the sponsor to the sponsored immigrant.

The sponsored immigrant has a right to sue the sponsor to enforce this support obligation. There is no requirement of a familial relationship to do so. The sponsor has to provide the support for each year that the sponsored immigrant earns income that is less than 125% of the poverty guidelines. The sponsored immigrant suing to enforce the obligation has not duty to exercise due diligence to become self supporting. Therefore, the sponsor cannot insist that the sponsored immigrant look for employment or show that they are seeking employment before they can enforce the support obligation against them. The sponsored immigrant may well choose not to work or seek any employment and fully rely on the sponsor to provide support at the required level. This obligation is enforceable until terminated by one of the five factors set forth above.

In determining whether monies are owed by the sponsor to the sponsored immigrant, the court must look at each year for which the sponsored immigrant is making a claim. Also, the accumulated income or assets of the sponsored immigrant is irrelevant. Nor is the fact that the sponsored immigrant is living with someone else that is paying their bills, so long as such payments do not amount to income for the sponsored immigrant.

It is the income earned by the sponsored immigrant for each year that determines the sponsor’s obligation. For example, a sponsored immigrant comes to the United States and get a good paying job making $100,000.00 per annum for five years and is able to save half of that or $250,000.00. After five years, he or she become unemployed or just stops working and move in with a wealthy individual who covers the rent, food and other needs of the sponsored immigrant. The sponsored immigrant then sues the sponsor for support for five years for which they were not earning income equivalent to 125% of the federal poverty guidelines. The sponsor cannot escape liability by pointing to the accumulated savings of $250,000.00 that the sponsored immigrant has from the five years that they worked and which is available and more than enough to provide support for the sponsored immigrant. The sponsor may not request the court to add up the monies earned by the immigrant over the ten year period in question and average it out for that time period to see if they earned up to 125% of the federal poverty guideline over that ten year period. The sponsor is not given a break because the immigrant is living with someone who is otherwise covering their everyday needs.

In determining the household size for the purposes of the poverty guideline, it is the income earned by the number of sponsored immigrants living in the household that counts. So, if a sponsor signs to support 5 people, any additional children the immigrant has after arriving in the United States do no count. Any income earned by any person living with the sponsored immigrant, but not part of those sponsored on the affidavit of support do not count either. While this may seem unfair, the legal explanation is to create an even field. Since the sponsor cannot be burdened by the immigrant having a bigger family than he agreed to be responsible for, he cannot get a windfall by another persons assistance to the sponsored family.

A common reason for use of the affidavit of support is by United States Citizens who sponsor a spouse to join then in the United States. Sometimes, when the sponsored spouse gets to the United States, the marriage does not work out and ends in immediate dissolution. It is worthy of note that the affidavit of support is contractual and the sponsor’s obligation is not
terminated by the divorce. In most jurisdiction, when there is a dissolution, one of the spouses may be entitled to spousal support or alimony. The entitlement to spousal support is determined by several factors determined by the family laws of the applicable states. Under those laws, a divorcing spouse not entitled to spousal support, but for whom an affidavit of support was signed by the sponsoring spouse, will be able to seek and get support equal to 125% of the federal poverty guidelines. Also, if spousal support is granted in the dissolution proceedings but the amount awarded is less than 125% of the federal poverty guidelines, the spouse can still file a contractual action pursuant to the affidavit of support signed by the sponsoring spouse to obtain the difference between the spousal support amount and the 125% of the federal poverty guideline for each year that the affidavit of support is enforceable and the sponsored spouse is not earning enough income to account for the difference. As noted above, the spouse seeking to enforce the affidavit of support obligation, does not have to make any effort to seek employment before they are entitled to enforce their rights against the sponsoring spouse. This can be considered a double whammy. You sponsor the immigrant to come to the United States as your spouse, they come in and there is an actual marriage but the marriage lasts for a month. The sponsored spouse then decides not to seek any employment and you are on the hook to support him or her financially so long as the affidavit of support is not otherwise terminated by one of the five factors discussed above.

The scenarios discussed above are illustrated in the case of Shumye vs. Felleke 555 F.Supp.2d 1020 (2008) [United States District Court, N.D. California.]. In that case, Plaintiff, a citizen of Ethiopia, arrived in the United States in November 1998 to marry Defendant. Defendant, a United States citizen, sponsored Plaintiff and signed an Affidavit of Support Form 1-864
(“Form 1-864”). Plaintiff and Defendant were married in January 1999 and separated in October 1999. In 2003, they filed for divorce. In 2005, Plaintiff and Defendant agreed to a divorce settlement in which Defendant agreed to pay Plaintiff the sum of $49,000 which payment satisfied settlement of the couple’s California community property rights. The property settlement was made without prejudice to any and all of Plaintiffs INS and/or immigration claims. Later in 2005, Plaintiff filed this claim to enforce Defendant sponsor’s financial obligations under the Form 1-864 and for damages.

In denying the Husband’s motion for summary adjudication, the court held that the wife was entitled to pursue the action. The court rejected the husband’s contention that the income earned by the wife from 2000 to 2007 be added up and averaged over the 8 year period to see if they equal or exceed 125% of the federal poverty guideline for those 8 years. This is because the husband was obligated to provide the required support on an “annual basis” not over the extended period of time. ‘”The Affidavit of Support provides for the measure of damages that would put the Plaintiff in as good a position as she would have been in had the contract been performed.” To be placed in as good a position as she would have been had Defendant performed his support obligation on an annual basis, this Court must compare Plaintiffs income against the 125% poverty threshold for each individual year in question.” Wife’s income was at least 125% of the federal poverty guidelines in the years 2000, 2001, 2002, 2004, and 2005, but not for 2003, 2006, and 2007 and husband was liable to make the payments for those three years.

The court also rejected Husband’s contention that the $49,000 payment made by him to wife as a result of their divorce settlement satisfied his Form 1-864 support obligations. The Stipulation entered in the divorce proceedings clearly stated that the $49,000 was a settlement of the former couple’s California community property rights and that the settlement was made without prejudice to wife’s INS rights and/or claims that may arise out of husband’s sponsorship obligations. The $49,000 represents the value of wife’s existing assets not income earned by her within that specific year for purposes
of calculating the 125% federal poverty guideline requirement.

Thus, while the husband and wife separated ten months after the marriage, husband’s support obligation under the affidavit of support was still enforceable at least until 2007, 8 years after the separation, and will continue to be enforceable so long as the obligation is not terminated by any of the five factors required to terminate the obligation.

The affidavit of support has such a far reaching effect, that even if the spouses in the dissolution sign a premarital settlement agreement whereby they waive the right to spousal support and alimony or waive spousal support as part of the dissolution proceedings, the sponsored spouse may still sue the

sponsoring spouse to enforce the support obligations arising from the form I-864. See Erler v. Erler 824 F.3d 1173 (2016) [9th Circuit] illustrates the former and In re Marriage of Kumar (California Court of Appeal 1 st District July 28, 2017) illustrate the latter.

Finally, the obligations arising from the affidavit of support can be enforced in the state court where the sponsor lives or in any federal court in the country.

Due to the far reaching implications of the affidavit of support, one has to be careful before signing one and be aware of the full ramifications of the financial obligations they are undertaking both to the government and to the sponsored immigrant.

Ogochukwu Victor Onwaeze is an attorney based in Los Angeles. He can be reached at 213-738-5066 or at onwaeze@aol.com.

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