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  • Article : Affidavit of Support for Immigration used in Divorces by Sherry Neal, Esq. and Christopher M. Pogue, Esq.

    Affidavit of Support for Immigration used in Divorces

    by Sherry Neal, Esq. and Christopher M. Pogue, Esq.

    Immigration law often intersects with other areas of the law, including domestic relations. This is becoming increasingly common in divorce actions where a foreign national tries to use the "Affidavit of Support", in particular USCIS Form I-864, from an immigration petition to enforce an ongoing obligation for the US citizen to support the foreign national after divorce.

    A US citizen that seeks to obtain permanent residence (a "Green Card") for a foreign national spouse based upon the marriage is required by law to complete and sign an Affidavit of Support. The form, as stated on the instructions themselves, is a contract between the sponsor and the U.S. government. The intent is to allow the U.S. government to seek reimbursement from the US sponsor for any means-tested public benefits the government issues to the foreign national.

    The obligation under the Affidavit of Support continues until one of the following occur: (1) the foreign national completes 40 quarters of coverage under the Social Security Act; (2) the foreign national becomes a U.S. citizen; or (3) the foreign national loses permanent residence status. In fact, the term of the "contractual" obligation to support may, and very often does, outlive the marriage itself.

    Not only does divorce not terminate the obligation, it may actually lead to enforcement of the obligation.

    Recently the Affidavit of Support has been stretched to be not just a contract between the sponsor and U.S. government, but also a contract between the sponsor and the foreign national. Specifically, the foreign national spouse may use the Affidavit of Support as a "contract" for the court to enforce spousal support - up to 125% of the poverty level annually until the sponsor's obligations terminates.

    A U.S. citizen who sponsored the foreign national spouse, and signed the affidavit of support, might raise several defenses (perhaps successfully, depending upon the state court where the divorce is judged) to get the court to deny spousal support, or at least minimize the amount of spousal support.

    For example, if a US citizen/sponsor can show the foreign national committed fraud, i.e. the foreign national never intended to enter into a lasting marriage, but simply used the US citizen to get a Green Card - that can be a complete defense to any liability.

    Aside from that, the US citizen may try the following arguments to attack the affidavit as a contract:
    • Ambiguity: The I-864 uses the term "Affidavit of Support" rather than "contract". The "contract" statement in the instructions refers to the sponsor's obligations to reimburse the government for benefits received by the sponsor. Therefore it could be understood by the US citizen/sponsor as an obligation to solely reimburse the government if the beneficiary seeks public benefits - sort of a reactive obligation rather than a proactive obligation to support the foreign national.
    • Contractual Vagueness: The term of the contract is too indefinite, thus the contract should be void for vagueness. For example, the Affidavit terminates only when one of five events happen, which could be indefinite and outside the control of the US citizen/sponsor. Another key term, the amount of potential liability, is also undefined. An enforceable contract should have at least an estimate of liability, and here the liability is theoretically without limit as the foreign national could receive public benefits of any amount they may request.
    • Adhesion: The Affidavit of Support is an adhesion contract since the parties (the government and the US citizen/sponsor) are in unequal bargaining positions, and the sponsor is required to sign the Affidavit as a condition of sponsoring the foreign national spouse for permanent residence. In other words, there is no real choice but to sign the affidavit of support in order to bring a spouse to the US to live on a Green Card.
    If the US citizen/sponsor cannot limit all liability, the secondary tactic would be to minimize the amount of support.

    For example, the US citizen/sponsor could argue that they should be required to pay only the difference between the sponsored non-citizen's income and the 125% of poverty threshold. Therefore, if the non-citizen is not working at all or working below a capable level, it may involve the court "imputing" income to the unemployed or underemployed non-citizen.

    Similarly, the duration of the support can be limited based upon the natural end of the affidavit of support obligation. That is, the obligation ends if one of the following events occur: (1) the foreign national completes 40 quarters of coverage under the Social Security Act; (2) the foreign national becomes a U.S. citizen; or (3) the foreign national loses permanent residence status.

    With the ever rising rate of divorce in the US, it is important for both US citizen/sponsors and their foreign national betrothed to be mindful that the obligations an Affidavit of Support may impose may be broader than they on its face.


    About The Author

    Sherry Neal is a Partner/Immigration Attorney with Hammond Law Group, LLC. Her emphasis is on employment-based immigration - advising corporations and individuals on immigration law issues. She has served on the Board of Governors of the American Immigration Lawyers Association (AILA) and served a two-year term as President of the Ohio Immigration Lawyers of AILA. Sherry has published numerous articles relevant to her field and her work has appeared in local, national and international books and magazines. She can be reached at SLN@HAMMONDLAWGROUP.COM.

    Christopher M. Pogue is an associate attorney with the Hammond Law Group, LLC. His practice concentrates on a broad range of immigration cases including family, employment, and immigration consequences of criminal convictions. Prior to practicing law, Christopher was a Fellow with the Urban Morgan Institute for Human Rights and the Senior Book Review Editor for the Human Rights Quarterly (HRQ), published by The Johns Hopkins University Press. The "HRQ is widely recognized as the leader in human rights" journalism. Christopher currently lives with his wife (a Belgian national) and his son (a dual Belgian / US citizen) in Cincinnati, Ohio. He can be reached at cpogue@immigrate2usa.com


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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