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Affidavit Of Support Creates Legally Enforceable Contract

by Cyrus D. Mehta

The Affidavit of Support, Form I-864, must be submitted by those who are sponsoring foreign nationals under the family-based immigration system. The sponsor must be able to demonstrate that he or she has income over and above the federal poverty guidelines. In the event that the sponsor cannot meet such an income requirement, a co-sponsor, who is a US citizen or lawful permanent resident, may also submit an affidavit of support.

The affidavit of support is also required in certain employment-based immigration situations. Specifically, if a relative is sponsoring a foreign national under one of the employment-based categories, or this relative owns a significant interest in the entity that files a petition on behalf of the immigrant, an affidavit of support will be needed.

Section 213A of the Immigration & Nationality Act creates a legally enforceable contract between the sponsor and the foreign national. Also, the Act creates a legally enforceable contract between the sponsor and the federal agency or any state agency, which may provide means-tested public benefits to the sponsored immigrant.

Recently, law suits filed by foreign nationals against the sponsoring spouse have been successful. In a recent decision arising from a federal district court in Florida, Cheshire vs Cheshire, 2006 U.S. Dist. LEXIS 26602, Maria Cheshire, the plaintiff who is a Russian immigrant living in the US under permanent resident status, sued her ex-husband Walter Cheshire, the defendant who is a US citizen who had sponsored her for permanent residency and submitted Form I-864 in conjunction with this sponsorship. Defendant supported his wife from January 8, 1998, the date he signed the affidavit of support, until their divorce on December 20, 2001. He stopped supporting her after that date. It is noted that the state court in Florida that had ordered the dissolution of the marriage did not award alimony or support to either party.

The Court in Cheshire v. Cheshire analyzed, after reviewing Section 213A, that the sponsorís obligation to support the sponsored immigrant under the Affidavit of Support only terminated upon the occurrence of one of the five circumstances: 1) the sponsorís death, 2) the sponsored immigrantís death, 3) the sponsored immigrant becoming a US citizen, 4) the sponsored immigrant permanently departing the US, or 5) the sponsored immigrant being credited with a total of 40 qualifying quarters of work. Thus, the fact that defendant had divorced his wife did not terminate his obligation to continue to support his wife.

The Court held that the defendant US citizen spouse was required to continue to support his wife from December 20, 2001 till the date of the judgment. The plaintiff ex-spouse had to be supported in an amount equal to 125% of the annual income stipulated under the federal poverty guidelines from 2001 to 2006, which amounted to $50,116.75, minus the wages of $41,795.54 that she had received on her own accord during this period. Defendant was thus ordered to pay $8,321.21.

The Court held that the defendantís obligation to sponsor the plaintiff would continue until such obligation expired by law based on the above 5 outlined events. The Court further held that there was no obligation for the spouse to work in order to relieve the defendant of his obligation.

Even though the defendant had also filed a Form I-134, which was another undertaking to support his ex-spouse when she had initially applied for a tourist visa, the Court found that only Form I-864 created an enforceable contract under the Act. Form I-134 did not create such an enforceable contract.

The lesson to be drawn from this case is that when a sponsor submits Form I-864, he or she should be aware that it can be legally enforced in a court of law. It would be difficult for a defendant to assert the traditional defenses such as fraud or duress, lack of consideration or that the plaintiff breached the contract. In Cheshire v. Cheshire, the Court found that even though the marriage was initially experiencing problems, there was insufficient evidence to suggest at the outset that the plaintiff, had no intention to remain married once she came to the US. The Court also found that under the terms of the affidavit, the consideration for the defendantís promise to support the plaintiff was plaintiff being granted entry into the US. In other words, the submission of Form I-864 enabled the plaintiff to overcome the public charge ground of inadmissibility.

Presently, the income for 2006 under the federal poverty guidelines for a single person is $9,800. The sponsor has to support the immigrant up to 125% of $9,800, which amounts to $12,250 per year until his or her obligation terminates under one of the 5 conditions. Any wages earned by the sponsored immigrant may be subtracted from this amount. If the sponsor agreed to support more than one immigrant, one would have to view the sponsorís obligation for the entire family unit. Thus, 125% for a family of two under the federal poverty guidelines would amount to $16,500, and it would amount to $20,750 for a family of 3. The amount increases by $4,250 for each additional person.

This article originally appeared on on May 12, 2006.

About The Author

Cyrus Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

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