TBA Law Blog

Posted by: Christy Gibson on Mar 25, 2014

*Cheryl Williams

In order to immigrate to the United States, a person must show he is not likely to become a “public charge.”   There are only limited exceptions to this rule.[i] Employment-based immigrants and their families usually demonstrate financial stability by providing evidence of a current job offer.  Family-based immigrants, however, may have no immediate offer of employment available; thus, these individuals are vulnerable to financial difficulty during the transition period. This makes them more likely to become dependent on government largesse for their day-to-day needs. The I-864 is designed to prevent this possibility.

Family-Based Immigration Cases. In family-based immigration cases, the U.S. citizen (USC), U.S. national, or Lawful Permanent Resident (LPR) sponsor must file an I-864 Affidavit of Support form in behalf of their immigrating family-member.  The form is designed to demonstrate the sponsor’s willingness and ability to support an immigrant relative.  The form acts to “deem” the U.S. sponsor’s income or assets onto the immigrant, thereby making the immigrant ineligible for public benefits. The Affidavit of Support binds the sponsor contractually, requiring the sponsor to repay the government for benefits obtained by the immigrant.  Only certain persons are eligible to execute an I-864 Affidavit of Support: USCs, US nationals, or LPRs, who are at least 18 years old, and who reside in the United States.

What if the Sponsor Cannot Demonstrate Financial Stability?  Sometimes, however, the petitioning relative is unable to meet the government’s requirements to demonstrate the necessary financial ability. In those cases, a joint sponsor can also file an Affidavit of Support.  Individuals residing in the same household, including the intending immigrant, or individuals with an interest in the success of the case who are otherwise unrelated to the parties, can file a joint Affidavit of Support. Each individual sponsor must meet the eligibility requirements above, and demonstrate their own financial ability to sponsor.  In those cases, the sponsoring relative, who must always file an I-864, is equally responsible for helping support the immigrant for as long as needed. The liability under the Affidavit of Support is therefore both joint and severable among the joint sponsors.

How Long Can It Last? The sponsor’s obligation to support the immigrating relative continues for an indefinite period, and ends only upon the satisfaction of certain requirements by the immigrant, as explained below.  Accordingly, the petitioning relative must show he/she has adequate income or assets so that their immigrating relative will not need to rely on the government for basic living requirements for an indefinite period.  As stated above, the executed I-864 Affidavit of Support is a contract that is binding upon the petitioning USC, national or LPR relative.  Thus, an attorney must carefully explain the form’s use and purposes to all parties in the immigration process.  Consents for the inherent conflict of interest should be obtained from all parties, and this is best done in writing.

The Affidavit of Support is enforceable until one of the following circumstances has occurred: the sponsored immigrant gains U.S. citizenship, the sponsored immigrant accrues 40 “qualifying quarters” of work credit according to the Social Security Administration rules, the immigrant departs the U.S. permanently, or the petitioning sponsor(s) dies.  It is notable that the Affidavit of Support transcends changed circumstances such as divorce.

Who Can Enforce the Affidavit of Support, and How?  Any aggrieved state or federal government agency can file suit to enforce the Affidavit of Support if a sponsored immigrant succeeds in obtaining means-tested public benefits.  In addition, the sponsored immigrant can also enforce the affidavit.  Third party service providers, such as hospitals, may also have standing to sue.

The law contemplates that suit will be brought in a court of competent federal jurisdiction.[ii] Cases have arisen in federal court[iii] and state domestic relations courts.[iv]  As you might imagine, most case law in this area arises in spousal support cases.  Enforcement is sought through statutory enforceability in the Immigration & Nationality Act and case law precedent.  Some courts have recognized a duty of the aggrieved immigrant spouse to mitigate their damages by obtaining suitable work. The only Federal Appeals Court to address the issue to date, however, found no duty to mitigate.[v]  If indeed, there is a duty by the immigrant to mitigate, why has neither the Congress nor the USCIS made this duty explicit through statute or rule making?

How Much Support is Required?  The sponsor is required to support the sponsored immigrant at a level equal to or exceeding 125% of the Federal Poverty Level for the duration of the required period.  If the immigrant has separated from the sponsor, they count as one person, and the support obligation is quite low.  The HHS poverty guidelines may be found at https://www.federalregister.gov/articles/2014/01/22/2014-01303/annual-update-of-the-hhs-poverty-guidelines.  In certain instances, assets can be used to satisfy the Affidavit of Support requirements.  A combination of income and assets can also be used.

Summary.  The I-864 Affidavit of Support is a complex area of immigration law, and this short article can only touch on its most important issues.


*Cheryl Williams is an attorney at the Nashville Office of Siskind Susser P.C. Ms. Williams graduated from Vanderbilt School of Law in 1995. She may be reached at cwilliams@visalaw.com or (615) 345-0266.

[i] The exceptions include, but are not limited to, refugee cases, asylum cases, and cases by battered spouses and children, as well as crime victims and victims of trafficking.

[ii] 8 USC § 1183a.

[iii] See Cheshire v. Cheshire, 2006 U.S. Dist. LEXIS 26602; Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D. Cal. 2008).

[iv] See Naik v. Naik, 944 A.2d 713, fn.4 (NJ 2008).

[v] Wenfing Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).  But see Naik v. Naik, supra at fn.4; Love v. Love, 2011 PA Super 268 at *6.