Affidavit of Support – Read the Fine Print Before Signing

October 31, 2013
Beata Leja

One of the required forms for family sponsorship of a foreign national for lawful permanent residence in the United States is the Form I-864 Affidavit of Support. As this form is actually a binding, enforceable contract between the sponsor and the U.S. Government, it is critical that potential sponsors be fully aware of the extent of their obligations before agreeing to sign the form.

The I-864 Affidavit of Support requires the sponsor to show that he or she has enough income and/or assets to maintain the intending immigrant(s) and the rest of his or her household at 125 percent of the Federal Poverty Guidelines. By signing the Form I-864, the sponsor is agreeing to use his or her resources to support the intending immigrant(s). If the sponsoring petitioner does not earn enough income, he or she may seek a co-sponsor to file an additional Form I-864.

The Form I-864 is required for; 1.) sponsors of immediate relatives of U.S. citizens; 2.) all family-based preference immigrants; and 3.) employment-based preference immigrants when a U.S. citizen or lawful permanent resident relative of the beneficiary filed the immigrant visa petition or the relative has a significant ownership interest (five percent or more) in the entity that filed the petition. There are certain narrow exemptions to the requirement for immigrant beneficiaries credited with 40 quarters of coverage under the Social Security Act, children who will immediately become citizens under the Child Citizenship Act of 2000, self-petitioning widows(ers), or self-petitioning battered spouses/children.

What is the signer of an I-864 agreeing to?

  1. Public Benefits: For any designated Federal, State or local means-tested public benefits, the income and assets of the sponsor may be deemed available to the immigrant. This means the intending immigrant may be found ineligible for certain benefits based on the sponsor’s income or assets. If the immigrant receives any such benefits, the agency providing the benefit may sue the sponsor to recover the costs of the benefits received. For more information on which benefits are included, click here.
  2. Financial Support:  The sponsor must provide the intending immigrant any support necessary to maintain the beneficiary at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size.
  3. Address changes: In addition, a sponsor is required to notify the U.S. Citizenship and Immigration Service (USCIS) of any change in address within 30 days by filing Form I-865.

How long does this obligation last?

The obligation ends when the sponsored immigrant:  1.) becomes a U.S. Citizen; 2.) has worked or can be credited a total of 40 quarters under the Social Security Act; 3.) no longer has lawful permanent resident status and has departed the U.S.; 4.) becomes subject to removal (deportation) and reapplies for adjustment of status in removal proceedings with a new affidavit of support; or 5.) dies. Death of the sponsor, however, only terminates future obligations and does not discharge any amount owed before death.

Divorce from the petitioner does not end the obligation. Courts have found that child support payments, unlike maintenance or alimony, do not offset a sponsor’s obligations under the affidavit of support. Regarding the question of whether a sponsored immigrant has a duty to mitigate damages by searching for employment, at least one court has recently found that no such duty exists.

What if the sponsor fails to meet the obligations?

The sponsored immigrant, or the agency providing designated benefits to the immigrant, can sue the sponsor for the support. If the sponsor is sued and the court enters a judgment, the person or agency that sued may use any legally permitted procedures to collect the judgment. In addition, the sponsor may be required to pay the costs of collection including attorney fees.

Given the serious financial obligations found in the Affidavit of Support, sponsors and co-sponsors should carefully consider the risks involved before agreeing to sign an I-864. The attorneys at Minsky McCormick & Hallagan P.C. are ready to answer any questions you have regarding immigration to the United States including the obligations of the affidavit of support.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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