I-864 Affidavit of Support, know before you sign

[Wayne and Claudia 40]

This is an affidavit that my attorney had me sign as an addition to the I-864. I wanted to share it with this community but it may be moved by the bosses.

Potential Responsibility for those Signing Form I-864

The following is a short summary of an article written by immigration attorney Charles

Wheeler regarding the potential liability of a U.S. citizen sponsor or of a co-sponsor

when signing form I-864 Affidavit of Support. It discusses a Federal Court case, Stump

vs. Stump, 2005 U.S. Dist. LEXIS 26002 (October 25, 2005). Attached to this Summary

is the article by Charles Wheeler and also a copy of Stump vs. Stump. After reading this

short summary and also the article by Charles Wheeler and the case itself, we request

that you please sign below and return this acknowledgement to us for our files. We want

to make sure you have received these materials and understand the potential

implications of entering into the I-864 contract.

Our firm has no opinion whether the issues involved in Stump vs. Stump is enforceable

in your situation. It was a trial court decision that we understand has no legal binding

authority since it is not a published Appellate Court decision. Notably, there are

defenses raised in the Charles Wheeler article that were apparently not argued in Stump

vs. Stump.

Summary

In order for a foreigner to immigrant through a family-based petition (such as a CR or an

IR visa, or stateside adjustment of status “green card”), the U.S. citizen petitioner must

execute and submit a legally-enforceable affidavit of support on Form I-864. (An

exception mentioned in Wheeler can be when adjusting status based on entry on a K1

fiancee visa.) The sponsor must agree in this affidavit to "provide support to maintain

the sponsored alien at an annual income that is not less than 125 percent of the Federal

poverty line during the period in which the affidavit is enforceable." The affidavit of

support must be "legally enforceable against the sponsor by the sponsored alien."

Jurisdiction to enforce the affidavit of support lies in "any appropriate court" in actions

brought by the sponsored alien against the sponsor "with respect to financial support."

The possible remedies include payment of spousal support or other maintenance.

In a court decision, Stump v. Stump, the federal court found the financial sponsor liable

under form I-864 contract, concluding that the sponsor was obligated to maintain the

foreign spouse at 125 percent of the poverty income level. It then awarded the alien

spouse almost $19,000. This was the amount of money she was entitled to receive from

the sponsor, calculated from the day the couple separated until the date of the decision,

based on her right to receive maintenance at the 125 percent of poverty level. The court

took into account the amount of money the alien spouse had already received during

that period from the citizen spouse and from wages she had earned. The court also

indicated it would award plaintiff's counsel reasonable attorneys fees in bringing the

action and reminded the sponsor of his continuing obligation to maintain the alien

spouse at the 125 percent level until the contract is terminated.

Issues dealing with spousal support do not only belong exclusively in state court as part

of the dissolution proceedings. A law suit may be filed in Federal court, for example, as

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was the case in Stump. Enforceability of the form I-864 affidavit of support is not merely only

enforceable against the sponsor by agencies that had provided the alien with means-tested

benefits. Instead, it can generally be enforceable to collect maintenance from the U.S. citizen

sponsor, and perhaps from a co-sponsor as well.

The affidavit remains in effect until the foreigner either becomes a U.S. citizen or earns/is

credited with 40 qualifying quarters of employment, as defined under social security law. The

regulations also allow for termination of the affidavit in the event that either the U.S. citizen

sponsor or the foreigner dies or the foreigner abandons lawful permanent resident (LPR) status

and leaves the United States.

The I-864 affidavit does not terminate upon the dissolution of the marriage between the sponsor

and the sponsored alien. In fact, 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 1) dies;

2) naturalizes; or 3) works ten years and satisfies the 40-qualifying quarter requirement. It can

be argued, therefore, that Congress has created a disincentive for foreign 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.

The second paragraph of the instructions to form I-864 advises the sponsor that by executing

the form he or she is agreeing "to support the intending immigrant and any spouse and/or

children immigrating with him or her" until the contract terminates. "Divorce does not terminate

the obligation." Part 7 of the form states: "The sponsor must provide the sponsored

immigrant(s) whatever support is necessary to maintain them at an income that is at least 125

percent of the Federal poverty income guidelines." When sponsors sign the I-864, they are

agreeing to provide the sponsored immigrant with that level of support until the contract

terminates, acknowledging their understanding of when the contract terminates, admitting that

the sponsored immigrant may sue to enforce the contract, and conceding to the personal

jurisdiction of any court in the United States to enforce the contract.

In its order granting summary judgment, the court found that the sponsored alien could maintain

an action against the sponsor for financial support, and that those actions are independent of

ones that might be brought by a government agency seeking reimbursement for benefits

received by the alien. It also held that the plaintiff was not precluded from enforcing the affidavit

even if she had not worked or sought work; mitigation went to the issue of damages, not liability,

which would be addressed in a subsequent trial.

According to the court in Stump, once executed and submitted, the I-864 could not be

withdrawn, and it is enforceable even if the intending alien never obtains LPR status as a “green

card” holder.

The most interesting part of the final decision in Stump was the court's method of calculating the

amount of damages. At the trial, the plaintiff presented evidence of her income from the period

after separating from the sponsor up to the present time, as well as all her efforts to seek

employment. The court subtracted the amount of money she had earned during that period, as

well as the maintenance she had received from the sponsor, from his obligation to support her

at "an annual income that is not less than 125 percent of the Federal poverty line." While the

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court did not find that the plaintiff was required to mitigate her damages, it found that she had

done so anyway.

The court did not want to place the plaintiff in a better position than she would have been had

the breach not occurred, so it rejected the second argument. It also decided that since the

purpose of the affidavit of support was to ensure that the sponsored alien did not become

financially eligible for means-tested programs, he had an obligation to provide support

equivalent to 125 percent of the poverty line for a family of one, which is what she became when

the parties separated. For 2005, that amount was $11,963.

This finding still leaves open the question of what formula to apply where the sponsor executed

multiple affidavits of support for the spouse and other family members.

The Charles Wheeler article recited possible defenses available that were not asserted in

Stump. We recommend that you discuss any obligations and defenses relating to form I-864

with a family law attorney who handles prenuptial agreements, or another attorney of your

choice.

I hereby acknowledge that I have read and understand the foregoing Summary of Potential

Liability for those Signing Form I-864 and the Charles Wheeler articles.

Date:

Edited October 15, 2010 by Wayne and Claudia

[RumbaBumba 4]

Extremely good to know. I like this article. Thanks for the post. Not a pretty subject to think about but Important nonetheless.

[IndigoSkies 168]

Why would a person not know this if they are siginging the AoS I-864 package? Don't be siging c.rap without reading the things, sistah! Na-ah. Don't even think about it, girlfriend!

[IndigoSkies 168]

Why would a person not know this if they are siginging the AoS I-864 package? Don't be siging c.rap without reading the things, sistah! Na-ah. Don't even think about it, girlfriend!

[LotofPatience 65]

Original post is good one

Loto

Edited October 15, 2010 by LotOfPatience

[TravellingNomad 12]

this is good information. i guess i can't threaten the wife with divorce when she gets here with this hanging over my head, huh?...LOL....j/k.

i wonder though....why did it not specify that the contract gets terminated if the alien spouse gets re-married after a divorce?

[PuraVida11 3]

Thanks for this helpful post. I realize this is an old thread, but if anyone's still paying attention, do you have any advice for seeking out a lawyer who practices family law and is familiar with prenups and implications if I-864 (per the OP's lawyer's recommendation)? Thanks, in advance!