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  • Article: 9th Circuit Expands Scope of Liability for Family Immigration Sponsors on Form I-864 Affidavit of Support. By Joseph M. Barnett, Esq.

    9th Circuit Expands Scope of Liability for Family Immigration Sponsors on Form I-864 Affidavit of Support


    On June 8, 2016, the U.S. Court of Appeals for the Ninth Circuit entered an order in Erler v. Erler which provided a new manner in measuring an immigrant’s post-separation household size and post-separation income for Form I-864 purposes.  The Ninth Circuit ruled that, in the event of a separation or divorce between the sponsor and the immigrant, the sponsor’s duty of support must be based on a household size that is equivalent to the number of sponsored immigrants living in the household, not on the total number of people living in the household.

    Form I-864 Affidavit of Support Under Section 213A of the INA

    A Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support.  A sponsor must show on a Form I-864 that he/she has income and/or assets to maintain the intending immigrant(s) and the rest of his/her household at 125 percent of the Federal Poverty Guidelines in accordance with INA §§ 212(a)(4)(C) and 213A(1)(A).  Once executed, a Form I-864 becomes a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, State, or local governmental agency or private entity that administers any “means-tested public benefits program” and creates a continuing obligation on behalf of the sponsor to provide the immigrant “with any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size.”

    Erler v. Erler

    The Ninth Circuit’s Erler decision involved a U.S. citizens’ obligation to provide financial support after the divorce and separation from an immigrant listed on a Form I-864.  In Erler, the sponsored immigrant moved into an apartment with her adult son after divorce.  The U.S. citizen stopped making financial support payments to the sponsored immigrant after divorce, while the adult son had been maintaining his mother at an annual income of at least 125% of the Federal poverty guidelines for a two-person household.  The immigrant sued, seeking to enforce her ex-husband’s duty to provide financial support under a Form I-864 and arguing that the U.S. citizen’s support obligation should be based on a household size of one without crediting the immigrant with her adult son’s income.  The question before the court is whether the sponsor’s duty of support should be based on the total number of individuals living in the new household (including adult son), or the number of sponsored immigrants living in the household (just the divorcee).

    The Ninth Circuit first ruled that, under federal law, neither a divorce judgment nor a premarital agreement may terminate an obligation of support pursuant to a Form I-864.  The court then determined that, at the time a sponsor signs an affidavit of support for a single intending immigrant, he or she would reasonably expect that, if the immigrant separates from the sponsor’s household, the obligation of support would be based on a household size of one.  Likewise, the court determined that if the sponsor agreed to sponsor multiple immigrants, such as a parent and child, then the sponsor would reasonably expect that, in the event of a separation, the obligation of support would be based on a household size that includes the total number of sponsored immigrants living in the household.  Accordingly, the court ruled that when measuring the immigrant’s income, the court must disregard the income of anyone in the household who is not a sponsored immigrant.

    Consequences of Erler v Erler

    As noted by the dissenting judge, the Ninth Circuit’s decision requires a sponsor to pay support to his/her former spouse, even though the former spouse is living in a household with income above the poverty level for its size, which creates a windfall for the immigrant.

    Sponsors or potential co-sponsors asked to sign a Form I-864 should be aware of this new development.

    This post is designed to provide practical and useful information on the subject matter covered.  However, it is provided with the understanding that no legal, tax, accounting, or other professional services are being rendered or provided.  If legal advice or other expert assistance is required, the services of a competent professional should be sought.

    This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2016 Wolfsdorf Connect - All Rights Reserved. Reprinted with permission.

    About The Author

    Joseph Barnett Joseph Barnett is licensed as an attorney in the State of Illinois and the State of Wisconsin and practices exclusively in immigration and nationality law. Mr. Barnett's practice focuses in the area of EB-5 Immigrant Investor Program and other business immigration matters. Mr. Barnett received his J.D. from Vermont Law School. Mr. Barnett may be contact at jbarnett@wolfsdorf.com

    Should you have any questions about a Form I-864, or if you are looking to sponsor a family-based green card application, please contact a Wolfsdorf Rosenthal LLP attorney to discuss your case.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. Unregistered222's Avatar
      Unregistered222 -
      Photograph looks unprofessional. Caveatus emptor
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