Most practitioners, I would guess, are not aware of a sponsor’s legal exposure after executing an affidavit of support. This is also true of joint sponsors and household members who agree to help the sponsor when his or her income is insufficient. If practitioners were aware, they might take more time explaining the full range of risks and downsides of executing an I-864, Affidavit of Support under Section 213A of the INA, or recommend that the sponsor seek outside counsel before signing the form.
Fortunately, few sponsored immigrants actually initiate enforcement actions against their sponsors. When they do, these lawsuits are almost always brought by one spouse against the other one after a failed marriage. While the sponsor’s legal requirements are set forth clearly in the I-864, it is noteworthy how many sponsors appear caught off-guard after the sponsored immigrant has brought a claim for financial support. They are even more surprised upon learning how few defenses they can mount.
This article will review those legal requirements, the six situations that terminate the affidavit of support, and the legal rights of the sponsored immigrant. It will then summarize the case law that limits the sponsor’s defenses and ability to challenge enforcement actions.
By executing the affidavit of support, the sponsor, joint sponsor, or substitute sponsor agrees to do the following:
The affidavit of support is a contract between the sponsor and the federal government. 8 CFR § 213a.2(d). The intended beneficiaries are the sponsored immigrant and any federal, state, or local government agency or private entity that provides a means-tested benefit to the sponsored immigrant. The intended beneficiaries may bring a civil action to enforce the contract in federal or state court. The statute provides that the affidavit is legally enforceable against the sponsor in actions brought by either the sponsored immigrant or a federal, state, or “other entity.” In other words, the sponsored immigrant can sue the sponsor to enforce the maintenance agreement. Should the immigrant ever obtain a means-tested public benefit, the agency or entity that provided it — at least in theory — could seek reimbursement from the sponsor. For a variety of reasons, this is unlikely to happen, and this article will focus on actions brought by the sponsored immigrant.
A joint sponsor who executes an I-864 enters into the same agreement as the sponsor and is liable to the same degree. The joint sponsor shares a contractual obligation with the petitioner/sponsor to maintain the sponsored immigrant at 125 percent of FPG, rather than each bearing a separate obligation to maintain the immigrant at that level. The sponsored immigrant can elect to enforce the affidavit agreement against either the joint sponsor or the petitioner/sponsor, or both. However, he or she can only collect a judgment up to 125 percent of FPG.
The household member who executes Form I-864A, Contract Between Sponsor and Household Member, who could be a relative or even the intending immigrant, agrees “to provide the sponsor as much financial assistance as may be necessary to enable the sponsor to maintain the intending immigrants at the annual income level required by . the Act.” 8 CFR § 212a.2(c)(2)(i)(C). All parties to Form I-864A must agree to be jointly and severally liable for any reimbursement obligation that the sponsor may incur, as well as submit to the personal jurisdiction of any court hearing the matter. Several liability means that the sponsored immigrant may choose to enforce the affidavit of support against either the petitioner/sponsor, the joint sponsor, or the household member.
The liability of the sponsor executing the affidavit of support only terminates upon one of the following occurrences:
Sponsored immigrants who work in the United States with a valid Social Security card in covered employment earn qualifying quarters that count toward Social Security coverage. The worker can earn up to four quarters per year; the sponsored immigrant can also be credited for quarters earned by a spouse during the marriage or by either parent before he or she turns 18.
Abandonment or loss of LPR status can occur through affirmative misconduct or departure from the United States. Misconduct includes the commission of crimes, fraud, or other miscellaneous acts. Abandonment turns on the length of time the LPR has been absent from the United States — usually more than one year — as well as other factors, including the maintenance of a residence in the United States, employment, family and other ties to the United States, and the LPR’s intention at the time of departing.
The statute allows for termination of the contract upon the sponsor’s death. However, future liability of the sponsor’s estate for actions brought by the sponsored immigrant likely will be a matter of state law interpretation. In any event, the regulations state that the sponsor’s estate is not relieved from liability for any reimbursement obligation that accrued before the sponsor’s death. 8 CFR § 213a.2(e)(3).
The sponsor’s or household member’s contractual obligations under the affidavit of support do not begin until and unless the intending immigrant obtains LPR status. It is not binding upon execution and submission. Therefore, the sponsor, joint sponsor or household member may withdraw the affidavit at any point up to the time the intending immigrant is granted LPR status. 8 CFR §§ 213a.2(e), (f).
The typical enforcement action happens between disgruntled spouses. The sponsor executes an affidavit of support for his or her spouse, that spouse immigrates, and subsequently they separate or divorce. The sponsor’s continuing obligation is to provide the immigrant with whatever support is necessary to maintain him or her at an annual income of at least 125 percent of FPG for a one-person household. The obligation begins on the day of separation and continues, year by year, until the affidavit of support terminates. For 2023, this amounts to $18,225 based on the current FPG.
Example. Roberta petitioned for her husband, Alex, who immigrated based on an affidavit of support that she filed. Two years later, Alex moved out. Roberta is obligated to maintain Alex at 125 percent of FPG for the duration of the contract. Alex is unemployed and has no interest in naturalizing. Alex is treated as a household of one, and for 2023 can expect to receive from Roberta at least $18,225. In most years, the FPG increases incrementally. For example, it increased by $1,238 from 2022.