Cap City Law - Attorneys for the Business of Life

Attorneys for the Business of Life

Affidavit of Support

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Written by Susan Pai, Immigration Attorney, Cap City Law, PS

Use the Health and Human Services Federal Poverty Guidelines to determine if the petitioner makes over 125% of the minimum level for his or her household. Your NET income (not gross reported income) is the figure that must exceed the Federal Poverty Guidelines.

The government can sue the sponsor to recover cost of means-tested benefits. Any federal, state, or local government can sue the sponsor to recover the cost of federal or state “means-tested public benefits” that were received by the immigrant during the period of enforcement of the affidavit of support. USCIS may disclose a sponsor’s Social Security number and the sponsor’s last known address to a benefits-granting agency to help it obtain a reimbursement from the sponsor.50 Federal means-tested public benefits have been defined to include only Medicaid (non-emergency), Supplemental Nutrition Assistance Program (SNAP, formerly known as the Food Stamp Program) for adults, the Children’s Health Insurance Program (CHIP), Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI).  Advocates should keep abreast of which state or local benefits have been designated as being recoverable under the affidavit of support.

Although these suits are legally possible, in practice there have been few government actions to obtain reimbursements for these benefits. Note that government agencies cannot sue to collect reimbursement for benefits that the immigrant received more than ten years earlier. The Trump administration proposed strengthening enforcement of affidavit of support reimbursements in a memorandum that was later rescinded on February 2, 2021 by President Biden. The sponsored immigrant can sue the sponsor to be supported at a level equal to 125%. There have been a few cases brought against sponsors by the sponsored persons, and all have been former spouses. In 2017, a California appellate court found that a sponsored person had standing in state court to sue to enforce the support obligation created by an I-864 and, furthermore, that the sponsored person had no duty to mitigate damages. Similarly, a federal district court in Indiana upheld a sponsored person’s right to recover from her sponsor ex-husband, awarded $19,000 in damages, plaintiff’s attorneys’ fees, and held that the sponsor had a continuing obligation to support the immigrant at the 125% level until the contract terminated. Based on this case law, sponsors who file affidavits of support for their spouses should be aware that they can be found liable to their spouses even after divorce.

Sponsors must notify the government if they change their address. If a sponsor moves, they must notify both USCIS and the state in which the sponsored immigrant resides within thirty days of changing their address. The sponsor can do this by filing Form I- 865; the form gives information about where it must be mailed. If the sponsor does not do this, they can be fined from $250 to $2,000, or up to $5,000 if they know the immigrant has collected benefits.

When does the sponsor’s obligation begin?

The sponsor’s and joint sponsor’s obligations under the affidavit of support do not begin when the affidavit of support is submitted to USCIS, but rather when the intending immigrant obtains lawful permanent resident status. This means that a sponsor may withdraw the affidavit at any time before the intending immigrant is granted permanent resident status.

When does the sponsor’s obligation end?

This section sets out how long the sponsor is obligated under the affidavit of support. The sponsor’s obligation ends when one of the following occurs:

1. The sponsored immigrant becomes a U.S. citizen;
2. The sponsored immigrant has worked or is credited for forty “qualifying quarters” of employment as reflected by Social Security payments;
  • A “quarter” refers to a quarter of a year, so the person will have to work at a certain wage for at least ten years to equal forty quarters.
  • Beginning after December 31, 1996, if the person receives any federal means tested public benefit during the quarter, the quarter does not count.
  • A person under eighteen can count all their parent’s qualifying quarters since the day they were born, and a spouse or widow(er) can count their spouse’s quarters earned since the date of the marriage.
3. The sponsored immigrant ceases to be a lawful permanent resident and has left the United States;
4. The sponsored immigrant, the sponsor, or the joint sponsor dies; or
5. The sponsored immigrant obtains a new grant of adjustment of status in removal proceedings as relief from removal. If the sponsored immigrant requires an affidavit of support for the new adjustment, only the sponsor(s) who filed new affidavits of support in conjunction with the new adjustment application will be obligated.

The sponsor’s obligation does not end due to divorce, even if a premarital agreement or divorce agreement attempts to eliminate this responsibility. The sponsor’s obligation also does not end if the sponsor and immigrant become estranged and the sponsor loses track of the immigrant’s whereabouts, or for other personal reasons. It does end if the sponsor dies, but the sponsor’s estate may have to pay obligations that arose before the sponsor died. Many important issues about liability are not yet decided. In reality, the affidavit of support has not been enforced with any frequency by the government against sponsors, although the Trump administration had signaled an intent to change this that was later reversed by the Biden administration.

A 2009 fact sheet about affidavits of support (in English) can be downloaded here.

If you are looking for an attorney to help you enforce the Affidavit of Support, contact Greg McLawsen here.

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