Affidavit of Support


Miami immigration attorney Oleg Otten - Affidavit of Support

I-864 Affidavit of Support

What are the requirements for the Affidavit of Support?

  1. Sponsor (petitioner) has to file Form I-864.
  2. Sponsor must be a US citizen or permanent resident; be at least 18 years old; and be domiciled in the US.
  3. Affidavit of Support is legally enforceable against the Sponsor. The Sponsor can be sued either by the sponsored Beneficiary (immigrant) for support or by the US government for reimbursement of the benefits that the government paid to the immigrant.
  4. Affidavit of Support must meet strict income requirements: Sponsor must prove that he or she is able to maintain annual income of at least 125% of the federal poverty guidelines. For example, under the 2017 guidelines, for household with two members (Sponsor and Beneficiary), 125% equals $20,300.
  5. By filing the Affidavit of Support, Sponsor agrees to (1) maintain the immigrant at an annual income level of at least 125% of the federal poverty guidelines, (2) reimburse any federal or state agency that provided a means-tested benefit to the sponsored immigrant, (3) submit to a jurisdiction of a federal or state court for enforcement purposes, and (4) inform the Department of Homeland Security of any changes of the Sponsor’s address.

How long does Sponsor’s obligation lasts?

The liability and obligations of the Sponsor under the Affidavit of Support last much longer than most petitioners realize. Petitioner’s liability and obligations terminate:

  1. When the sponsored immigrant naturalizes (becomes a US citizen);
  2. When the immigrant earns 40 qualifying quarters of employment under the Social Security Act, which usually means working for 10 years;
  3. When the Beneficiary or the Sponsor dies; or
  4. When the immigrant loses or abandons his or her permanent resident status and leaves the US.

Note: even if the petitioner and the beneficiary divorce, the liability and obligations of the Sponsor under the Affidavit of Support do not terminate.

The obligations are not dischargeable even in bankruptcy!

What does the Sponsor promise under the I-864 Affidavit of Support?

The petitioner promises two things:

  1. To repay the government for means-tested public benefits that the government paid to the Beneficiary, and
  2. To maintain the Beneficiary’s income at about $15,000 a year for a household of one.

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Is Affidavit of Support a real contract?

Affidavit of Support is an enforceable contract between the Sponsor and the federal government. The immigrant Beneficiary is not a party to the contract – he or she doesn’t have to sign the Affidavit of Support. But the immigrant is a “third-party beneficiary to the contract.” Under contract law, third-party beneficiaries can sue for enforcement of contracts that were signed for their benefit. There is a lot of case law that makes it clear that the immigrant is able to sue his Sponsor in court.

What if there is a Joint Sponsor?

Sometimes, a Sponsor is not able to show enough income, and he asks a friend or relative to become a Joint Sponsor (also known as a co-sponsor). Joint Sponsor has joint and several liability with the principal Sponsor. So, if the I-864 Beneficiary decides to sue for support, she may choose whether to go after the principal Sponsor, the Joint Sponsor, or both.

What can the Beneficiary recover from the Sponsors?

The immigrant Beneficiary could recover damages, which are quite easy to calculate. The Beneficiary would be entitled to get a judgement for 125% of the poverty guideline (about $15,000 a year) for the period of time the Sponsor was not supporting her, minus any income she was actually receiving. On top of that, she could recover the attorney’s fees, which may be larger than the actual damages. It means that the Sponsor may be looking at a judgement or settlement of about $100,000. Yes, it’s a very serious matter that can bankrupt most people.

Which courts have jurisdiction to hear Affidavit of Support cases?

  1. Federal courts – immigration is a federal issue.
  2. State courts – under the contract action, as well as under the statute since the law does not take away state court’s jurisdiction in I-864 cases. However, in the family law context (alimony and child support), states differ a lot regarding enforcement of the Affidavit of Support claims.

Also, under I-864a, household members may be sued, though, it’s rare, and there are few reported cases.

What is the worst case scenario for Sponsor?

Probably the worst case scenario would involve medical bills as a result of a serious injury or illness. For example, if an immigrant gets into a bad accident, requires significant medical treatment, and, as a result, receives a large bill for medical expenses under Medicaid, then the liability under the Affidavit of Support could become astronomical.

Does Trump administration plan to make any changes to the Affidavit of Support?

In 2017, President Donald Trump issued an Executive Order mandating that federal agencies enforce Affidavit of Support against Sponsors, if beneficiaries receive means-tested public benefits. Also, this executive order significantly expands the definition of covered programs. As of June, this order is still not signed, but it can happen at any moment, which would mean that the federal government would go after Sponsors on a large scale.

Immigration lawyer in Miami, Florida, Oleg Otten