Alien vs Sponsor: Legal Enforceability Of The Affidavit Of Support
Nine years after Congress imposed strict affidavit of support requirements on all family-based immigrant visa petitioners, a federal district court in Fort Wayne, Indiana has upheld the sponsored alien's right to recover money from her sponsor. Stump v. Stump, 2005 U.S. Dist. LEXIS 26002 (October 25, 2005). Immigration practitioners who had been waiting for a finding on the enforceability of the I-864 affidavit of support by sponsored aliens and for direction on how it is to be applied against sponsors finally received the first definitive ruling.
In the case before the court the sponsored alien was the spouse of a U.S. citizen who originally entered as a fiancée. The U.S. citizen spouse had executed and filed an I-864 on behalf of his wife as part of her application for adjustment of status. The parties separated approximately one year after they were married and were in divorce proceedings at the time this action was brought. In lieu of seeking maintenance (spousal support or alimony) in the state court action, the alien spouse sued the sponsor in federal court asking for money owed under the terms of the affidavit of support.
The federal court granted the plaintiff's motion for summary judgment and found the sponsor liable under the contract, concluding that the sponsor was obligated to maintain the alien spouse at 125 percent of the poverty income level. It then held an evidentiary trial on the issue of damages and awarded the alien spouse almost $19,000. This was the amount of money she was entitled to receive from the sponsor, calculated from the day the couple separated until the date of the decision, based on her right to receive maintenance at the 125 percent of poverty level. The court took into account the amount of money the alien spouse had already received during that period from the citizen spouse and from wages she had earned. The court also indicated it would award plaintiff's counsel reasonable attorneys fees in bringing the action and reminded the sponsor of his continuing obligation to maintain the alien spouse at the 125 percent level until the contract is terminated.
At least two other federal courts and one state appellate court had previously addressed the enforceability of the affidavit of support , but this decision from Indiana is the first one to make such precedent-setting findings. It is likely to come as a surprise to practitioners who had assumed that issues dealing with spousal support belonged exclusively in state court as part of the dissolution proceedings, or to those who assumed the affidavit of support was only enforceable against the sponsor by agencies that had provided the alien with means-tested benefits.
The statute states quite clearly that in order for an alien to immigrant through a family-based petition - as well as through some employment-based petitions - and overcome the public charge ground of inadmissibility, the petitioner on the Form I-130, Petition for Alien Relative, must execute and submit a legally-enforceable affidavit of support on Form I-864. The sponsor must agree in this affidavit to "provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable." The affidavit of support must be "legally enforceable against the sponsor by the sponsored alien." Jurisdiction to enforce the affidavit of support lies in "any appropriate court" in actions brought by the sponsored alien against the sponsor "with respect to financial support."  The possible remedies include specific performance of the contract (i.e., payment of maintenance).
The affidavit remains in effect until the sponsored alien either naturalizes or earns/is credited with 40 qualifying quarters, as defined under social security law. The regulations also allow for termination of the affidavit in the event the sponsor or sponsored alien dies or the sponsored alien abandons lawful permanent resident (LPR) status and leaves the United States.
But the affidavit does not terminate upon the dissolution of the marriage between the sponsor and the sponsored alien. In fact, divorce eliminates the ability of the parties to combine social security quarters earned during marriage and terminate the contract in that manner. In those situations the sponsor remains liable for maintaining the ex-spouse until the alien either dies, naturalizes, or works ten years and satisfies the 40-qualifying quarter requirement. It can be argued, therefore, that Congress has created a disincentive for alien spouses to naturalize or work after divorcing the citizen/LPR spouse, since doing so would eliminate or restrict their ability to receive guaranteed maintenance from the sponsor at a level not less than 125 percent of the federal poverty income guidelines.
The interim regulations clarify that execution of the I-864 creates a contract between the sponsor and the federal government "for the benefit of the sponsored alien," who in turn "may seek enforcement of the sponsor's obligations through an appropriate civil action." Sponsored aliens who obtain final civil judgments against their sponsors are instructed to inform the Service so that the agency can maintain statistics and file accurate Congressional reports.
Advisals on the I-864
The second paragraph of the instructions to Form I-864 advises the sponsor that by executing the form he or she is agreeing "to support the intending immigrant and any spouse and/or children immigrating with him or her" until the contract terminates. "Divorce does not terminate the obligation." Part 7 of the form states: "The sponsor must provide the sponsored immigrant(s) whatever support is necessary to maintain them at an income that is at least 125 percent of the Federal poverty income guidelines." When sponsors sign the I-864, they are agreeing to provide the sponsored immigrant with that level of support until the contract terminates, acknowledging their understanding of when the contract terminates, admitting that the sponsored immigrant may sue to enforce the contract, and conceding to the personal jurisdiction of any court in the United States to enforce the contract. The language on the Form I-864 carries the same weight as published regulations.
Prior Actions to Enforce the Affidavit
Ms. Stump was hardly the first sponsored alien to seek enforcement of the affidavit of support in a court action. This author has assisted several family law practitioners in their efforts to use the affidavit of support as a yardstick in establishing the appropriate level of spousal support for their clients in divorce proceedings. The argument is fairly straightforward: the federal government has set a floor of 125 percent of the poverty guidelines, which the sponsor is already obligated to provide to the alien spouse, and thus the sponsor should be required to provide at least that amount in regular spousal support payments. In states where the spousal maintenance/alimony laws or precedent holdings would not support such a finding, the author has encouraged sponsored aliens to file separate actions in state or federal court.
One state appellate court has already found that the affidavit of support should be considered by the trial court in determining the appropriate amount of spousal support. That court rejected the sponsor's argument that the affidavit was only enforceable by the federal government after the sponsored alien had received a means-tested benefit. It found the affidavit of support to be a legally-binding contract that could be enforced by the sponsored alien in either state or federal court.
In another case, the sponsored alien did not seek any temporary spousal support payments in the state divorce proceedings, but rather filed a separate action in federal court against the sponsor/spouse seeking to enforce the affidavit of support. The sponsored alien moved for partial summary judgment, arguing that there were no factual issues in dispute relating to the sponsor's liability. The sponsor defended by asserting that: (1) the statute does not give the sponsored alien a private right of action; (2) only the federal government may sue the sponsor to seek reimbursement for means-tested benefits received by the alien, and (3) the sponsored alien was already receiving income above the 125 percent of poverty level. The sponsor cited as authority an earlier federal court decision finding that the Form I-134 was not a legally-enforceable contract.
The court easily distinguished that case, since the sponsor here had executed an I-864, and found that the plaintiff could maintain the suit based on the statutory provisions and the language on the form. It granted the plaintiff's motion for summary judgment on the issue of liability. But it then went on to find that since the sponsor had failed to list the alien's income-generating assets on the I-864 at the time he executed it, he was barred from considering that income in measuring the amount of maintenance he owes the sponsored alien. This was clear error, given that the sponsor did not need to include the intending immigrant's assets to satisfy the household income requirements; the form itself advises against listing assets unless necessary. The plaintiff was asking for maintenance above the 125 percent level, since the statute and regulations require "at least" this amount, and for an evidentiary trial to determine the appropriate monthly allowance. The parties later reached a financial settlement and dismissed the action.
Summary Judgment Order in Stump
Ms. Stump applied a similar approach by filing for divorce in state court, bringing a separate action in federal court to enforce the affidavit, and moving for summary judgment on liability. The sponsor claimed that there were factual disputes barring summary judgment, namely that the plaintiff had failed to demonstrate that she (1) had received a mean-tested benefit, (2) had mitigated damages by seeking and obtaining gainful employment, and (3) was an LPR.
In its order granting summary judgment, the court found that the sponsored alien could maintain an action against the sponsor for financial support, and that those actions are independent of ones that might be brought by a government agency seeking reimbursement for benefits received by the alien. It also held that the plaintiff was not precluded from enforcing the affidavit even if she had not worked or sought work; mitigation went to the issue of damages, not liability, which would be addressed in a subsequent trial.
The court spent most of its decision discussing whether the plaintiff needed to establish that she was an LPR, and concluded that she did not, since the affidavit of support obligations commence upon execution and submission of the I-864, not upon the intending immigrant's ultimately obtaining LPR status. That finding is troubling, given that it is contrary to the position of the U.S. Citizenship and Immigration Services (USCIS), which has interpreted the sponsor's obligations as commencing upon the sponsored alien's obtaining LPR status. That issue tends to arise when the parties have separated while the adjustment of status application is pending and the sponsor has sought to withdraw the affidavit of support. It also arises when joint sponsors used at the time of initial filing are no longer required at the time of adjudication of the adjustment application or consular processing. The USCIS's position has been that the sponsor or joint sponsor is entitled to retract the I-864 at any time before the adjustment is granted. That seems fair and logical, given that the purpose of the affidavit of support is to ensure that the sponsored alien does not become indigent and thus eligible for means-tested benefits after adjusting status or immigrating (they are not eligible for these public benefits before that time). Also, where is the consideration flowing to the sponsor if the alien never obtains LPR status? But according to the court in Stump, once executed and submitted, the I-864 could not be withdrawn, and it is enforceable even if the intending alien never obtains LPR status.
Meaning of 125 Percent of the Poverty Income Level
The most interesting part of the final decision in Stump was the court's method of calculating the amount of damages. At the trial, the plaintiff presented evidence of her income from the period after separating from the sponsor up to the present time, as well as all her efforts to seek employment. The court subtracted the amount of money she had earned during that period, as well as the maintenance she had received from the sponsor, from his obligation to support her at "an annual income that is not less than 125 percent of the Federal poverty line." While the court did not find that the plaintiff was required to mitigate her damages, it found that she had done so anyway.
This is the first court to interpret the "125 percent" phrase, and it grappled with a fundamental complicating factor: the disparity between the amount of income the sponsor needs to qualify as a sponsor and the level at which he or she must maintain the sponsored alien after they split, even though both statutory provisions employ the same 125 percent of poverty language. In other words, a sponsor must use total household size in determining whether his or her income is sufficient to satisfy the 125 percent requirement. But when maintaining the sponsored alien at 125 percent of poverty, a different household size must be used. The court found that these requirements are distinct and should be viewed separately, even though it results in the sponsor being obligated to provide more income under the affidavit of support than he or she was required to evidence to qualify as a sponsor.
In other words, Mr. Stump's household size consisted of three persons at the time he executed the affidavit of support: Mr. Stump, his dependent child, and his new wife. To qualify as a sponsor, he was required to evidence the amount of income to maintain a household of three. The question before the court was what level of support he must provide Ms Stump after the parties separated.
One possible interpretation was that the sponsor must provide only the equivalent of the increased amount of support necessary to maintain the household at 125 percent of poverty due to the addition of the sponsored immigrant. Therefore, when the parties split, the sponsor should only be responsible for providing the sponsored alien with $4,075 of support (the difference between maintaining a household totaling three members and one totaling two under 2005 guidelines). The opposing argument, at the other extreme, is that since Mr. Stump had to evidence the ability to maintain a household of three, that is the level of maintenance he must provide to Ms Stump after they separate ($20,113 under 2005 guidelines).
The court did not want to place the plaintiff in a better position than she would have been had the breach not occurred, so it rejected the second argument. It also decided that since the purpose of the affidavit of support was to ensure that the sponsored alien did not become financially eligible for means-tested programs, he had an obligation to provide support equivalent to 125 percent of the poverty line for a family of one, which is what she became when the parties separated. For 2005, that amount is $11,963.
This finding still leaves open the question of what formula to apply where the sponsor executed multiple affidavits of support for the spouse and other family members. When the sponsored alien and those other family members leave the sponsor's household, must the sponsor maintain each one at the $11,963 level (based on the 2005 guidelines) or can the sponsor add them together and apply the household formula? For example, where the person sponsored a total of four immigrants, must the sponsor maintain each immigrant at the $11,963 level (for a total of $47,852) or may the sponsor satisfy the requirement by maintaining them collectively at the 125 percent level for a household of four ($24,188, based on 2005 guidelines)? This alternative interpretation bears serious consideration, given that the sponsor was only required to evidence the ability to maintain a household at the collective level.
Other Possible Defenses
Sponsors who wish to defend against enforcement actions brought by sponsored aliens might consider raising some of the following arguments:
What Practitioners Should be Advising their Clients
As a result of the Stump decision, it is even more important for practitioners to explain fully the potential legal obligations of executing an affidavit of support. These should be spelled out in writing on a form that the client signs acknowledging receipt and his or her understanding of these consequences. Given the potential conflict of interest in representing both the sponsor (or joint sponsor) and the sponsored alien, this advisal should include language explaining this ethical issue and the practitioner's responsibilities.
At the same time, it is important to provide a realistic assessment of the probability of actions to enforce the affidavit of support. The author is not aware of any successful actions to obtain reimbursement for means-tested benefit programs obtained by the alien, largely due to the following: (1) sponsored aliens are barred from receiving these benefits for a five-year period in most jurisdictions; (2) after this five-year period, the income of the sponsor is deemed to the alien in determining financial eligibility; and (3) most states have not implemented a system for seeking such reimbursement in cases where the alien does access benefits. Over the course of the last nine years, only a handful of actions have been brought against sponsors by the sponsored alien, and all have been by disgruntled spouses.
Finally, consider drafting a separate agreement where the sponsored alien renounces any claim against the sponsor for maintenance under the affidavit of support and agrees to indemnify the sponsor should the alien access any means-tested public benefits. This would resemble a pre-nuptial agreement, and would need to identify the consideration that both parties are receiving. Such separate agreements have not been enforced or challenged yet, and the main question is whether they will be found to violate public policy.
This article was first published in Bender's Immigration Bulletin at 10 Bender's Immigr. Bull. 1791 (Dec. 1, 2005). Reproduced with permission.
1 See Tornheim v. Kohn, 2002 WL 482534 (E.D.N.Y. Mar. 26, 2002); Ainsworth v. Ainsworth, No. 02-1137-A-M2 (M.D. La. 2004); Davis v. Davis, 2004 WL 2924344 (Ohio Ct. App. Dec 17, 2004).
2 INA §§ 212(a)(4)(C)(ii) and (D), 213A(a)(1).
3 INA § 213A(a)(1)(A).
4 INA § 213A(a)(1)(B).
5 INA § 213A(e).
6 INA § 213A(c).
7 INA § 213A(a)(2) and (3). Alien spouses can earn up to four qualifying quarters per year, as well as be credited with all of the citizen/LPR spouse's quarters earned during marriage.
88 CFR § 213a.2(e).
9INA § 213A(a)(3)(B)(ii).
10 8 CFR § 213a.2(d).
118 CFR § 213a.4(a), (c).
12Affidavit of Support under Section 213A of the Act, Form I-864 Instructions.
13Id. at p. 4.
14 Id. at pp. 4-6.
15Davis v. Davis, 2004 WL 2924344 (Ohio Ct. App. Dec 17, 2004).
16Ainsworth v. Ainsworth, No. 02-1137-A-M2 (M.D. La. 2004).
17Tornheim v. Kohn, 2002 WL 482534 (E.D.N.Y. Mar. 26, 2002).
18Ainsworth v. Ainsworth, No. 02-1137-A-M2 (M.D. La. May 27, 2004).
19Stump v. Stump, No. 1:04-CV-253-TS (N.D. In. May 27, 2005), http://www.immigdaily/cases/2005,1107-stump1.pdf.
20Compare INA § 213A(a)(1)(A) with 213A(f)(1)(E) and 213A(f)(6)(iii). Persons on active duty in the Armed Forces must only demonstrate the means to maintain an annual income equal to 100 percent of the poverty line even though they must agree to maintain the sponsored immigrant at 125 percent of poverty. INA § 213A(f)(3).
21To read more about conflict of interest as it pertains to the affidavit of support, read Chapter 10 of Family-Based Immigration, available through http://www.ilw.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.