A SPONSOR’S OBLIGATIONS UNDER AN AFFIDAVIT OF SUPPORT DO NOT END WITH DIVORCE BUT CONTRACT-BASED DEFENSES ARE AVAILABLE.

Under the Immigration and Nationality Act (“INA”), an intending immigrant is inadmissible as a public charge (INA §212(a)(4)) unless he/she is financially sponsored under an affidavit of support pursuant to INA §213A.  By signing the affidavit of support – a formal contract, a sponsor agrees to provide support to maintain the sponsored alien at an annual income of not less than 125% of the Federal poverty guidelines (not less than 100% for active military members sponsoring a spouse or child).

The affidavit of support is legally enforceable against the sponsor not only by the sponsored immigrant with respect to financial support (such as when an intending immigrant is living below the 125% poverty guidelines), but also by the federal government, any state, or any entity that provides any means-tested public benefit, with respect to reimbursement for public services provided. By signing the affidavit of support, the sponsor submits himself to the personal jurisdiction of any court of the United States or of any State, territory, or possession of the United States if the court has subject matter jurisdiction of a civil lawsuit to enforce the Form I-864.[1]

Federal courts have consistently found that Form I–864 is a legally binding and enforceable contract between the sponsor and the sponsored immigrant.[2]

The obligations under the affidavit of support end only when the sponsored immigrant (1) becomes a U.S. citizen, (2) has worked, or can receive credit for, 40 quarters of coverage under the Social Security Act, (3) is no longer a permanent resident and has departed the U.S., (4) is subject to removal, but applies for and obtains, in removal proceedings, a new grant of adjustment of status (permanent residency) with a new affidavit of support, or (5) dies.

Because financial obligations under the affidavit of support terminate only upon the occurrence of one of the five circumstances above, divorce will not invalidate the contract created by the affidavit of support. In fact, instructions accompanying the affidavit of support Form I-864 provide that “[d]ivorce does not terminate [the] obligation” of a sponsor to support the sponsored immigrant. (Affidavit of Support at 8).

Notwithstanding the above, the courts have recognized the defenses of set-off (i.e., receipt of spousal or child support), mitigation of damages (i.e., whether or not the sponsored immigrant made reasonable efforts to find employment), fraud, unclean hands, and others.[3]

What happens in the case of an annulment when the marriage is void ab initio or is treated as if “no valid marriage ever existed”[4] has yet to come before a court but, fraud at the inception of the marriage (a basis for annulment) would certainly provide a strong defense.

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[1] Shumye v. Felleke, 555 F. Supp. 2d 1020, 1023–24 (N.D. Cal. 2008).

[2] See e.g., Younis v. Farooqi, 597 F.Supp.2d 552 at 554 (D.Md.2009); Shumye v. Felleke, 555 F.Supp.2d 1020, 1023 (N.D.Cal.2008).

[3] Id.

[4] Pearsall v. Folsom (1956) 138 F.Supp. 939, 1941).