Affidavit of Support Requirements for Sponsors
The Affidavit of Support (Form I-864) is a legally enforceable contract between the Sponsor and the U.S. Government for the benefit of the Sponsored Immigrant and any Federal, State, or local governmental agency or private entity that administers any means-tested public benefits programs.
If you sign a Form I-864 on behalf of any person (called the “intending” or “sponsored” immigrant) who is applying for an immigrant visa or for adjustment of status to a permanent resident, and that intending immigrant submits the I-864 to the U.S. Government with his or her application, these actions together create a contract between you and the U.S. Government. The intending immigrant’s becoming a permanent resident is the consideration for the contract.
With your signature, you agree to “provide support to maintain the sponsored alien at an annual income that is not less than 125% of the Federal poverty guideline during the period in which the affidavit is enforceable.” This obligation begins after the intending immigrant acquires permanent residence and is enforceable by them, by the local, state or federal government, or by any agency providing a means-tested public benefit against you and any joint sponsor, if applicable.
A program is generally considered “means-tested'' if eligibility for the program's benefits, or the amount of such benefits, or both, are determined on the basis of income or resources of the person(s) seeking the benefit. Therefore, a means-tested public benefit applies only to benefits provided by means-tested, mandatory spending programs, and not to any discretionary spending programs, or to any mandatory spending programs that are not means-tested.
If there is a joint sponsor, it is important to note that both you and the joint sponsor will be held “jointly and severally liable”, which means that the sponsored Immigrant (or the local, state or federal government, or any agency) can bring suit against you or the joint sponsor for full compensation.
As a practical matter, to date there have been very few instances of agency enforcement of the Affidavit of Support provisions against sponsors. However, any sponsor or potential sponsor should be aware of their responsibilities under the law and of the fact that it is only a matter of time before agencies start to regularly enforce the provisions, especially given the current budget problems found in both the state and federal governments.
Despite the lack of agency enforcement actions, enforcement by family members has been steadily increasing over the last few years. One example of how the Affidavit of Support has been enforced against a sponsor spouse can be found in the case of Stump v. Stump, 2005 U.S. Dist. LEXIS 26002 (October 25, 2005). In that case, the sponsor was a U.S. citizen spouse, who had executed and filed an I-864 on behalf of his wife as part of her application for adjustment of status. At some point after adjusting status, a separation had occurred and it was during the divorce proceedings that the wife decided to enforce the provisions of the Affidavit of Support rather than seek spousal support or alimony. The court ended up deciding in her favor and concluded that the sponsor (husband) was obligated to maintain his spouse at 125% of the poverty income level as required by the Affidavit of Support. He was ordered to pay her the amount needed to maintain her at this level from the day the couple separated until the date of the decision. The court also awarded her attorney’s fees, and reminded the sponsor of his continuing obligation to maintain his spouse at this level until the contract legally terminated.
Your obligation as a Sponsor in relation to the Affidavit of Support may end in one of the following five ways:
1) The Sponsored Immigrant becomes a U.S. citizen
2) The Sponsored Immigrant loses or relinquishes his or her permanent residence status
3) The Sponsored Immigrant obtains a new grant of Adjustment of Status in a removal proceeding
4) The Sponsored Immigrant has earned or been credited with 40 qualifying quarters under Title II of the Social Security Act
5) The Sponsored Immigrant dies.
In relation to number 4, above, the “40 qualifying quarters” refers to quarters of coverage as defined in Title II of the Social Security Act. The calculation of qualifying quarters is determined by the amount of wages earned during a calendar year. A worker can earn a total maximum of four quarters of coverage per year, but these quarters do not have to be earned in corresponding three-month calendar periods. For example, if the amount of earnings needed to qualify as a quarter of coverage is $1,000, a worker can be credited with the maximum four quarters of coverage for the year once he or she earns $4,000. Therefore, since 4 quarters maximum can be earned per year and can be earned at any time during the year, it will take just over 9 years at the earliest for a sponsored immigrant to fulfill the 40 quarter requirement.
These are the only circumstances in which your responsibilities terminate. Moreover, separation and divorce of the intending immigrant will not end your obligation. Additionally, termination of your support obligation does not relieve you or your estate of any reimbursement obligation that accrued before the support obligation ended.
Finally, during the period in which the Affidavit of Support is enforceable, you are required to report any change of address within 30 days of such change, which is accomplished by completing and submitting Form I-865. Failure to submit this form within the time period specified can result in a fine ranging from $250 to $2,000. However, if you fail to file this form knowing that the Sponsored Immigrant has received any means-tested public benefits, the fine will range from $2,000 to $5,000.