The United States Citizenship and Immigration Services and National Visa Center have set rules for different immigration applications. For family members seeking to immigrate to the United States for lawful permanent residence, the petitioning sponsor needs to file Form I-864.
The Form I-864 Affidavit of Support is a requirement to ensure the intending immigrant doesn’t become a public charge. The form reassures the U.S. government that the sponsored immigrant will not rely on the government for financial sustenance.
The Immigration and Nationality Act presumes every intending immigrant to the U.S. to likely become dependent on the government until proven otherwise. Thus, the Affidavit of Support constitutes an agreement between the United States government and the sponsor that the immigrant will not become a burden.
This agreement continues for as long as possible and can only be terminated if one of five things happens. In this article, we will be intimate with the timeframe of the affidavit; what circumstances terminate it and which ones don’t?
What Premises Can You Use to Get Out of an Affidavit of Support?
The affidavit of support, I-864, is a legally enforceable contract and legally binding on the sponsor(s). That means the sponsor cannot get out of the contract unless at least one of five things happens.
These include the death of the immigrant or sponsor and a change in the citizenship status of the sponsored immigrant. Also, the contract is terminated when the immigrant has fulfilled up to forty quarters of work, which is equivalent to ten years.
Unless the contract terminates itself naturally, the sponsor is legally obligated to continue financially supporting the immigrant. Thus, you cannot get out of the affidavit of support, even if you later discovered that the immigrant no longer deserves it.
How Long Are You Financially Responsible for Someone You Sponsor?
You are financially responsible for the immigrant you are sponsoring until the latter has completed forty quarters of work. Although immigration attorneys say this amounts to ten years, that is not always the case.
Moreover, this number is only applicable if the immigrant had been working for ten years. This is calculated as ten years x four quarters per year, amounting to forty quarters as defined by the SSA.
If the immigrant hasn’t been working, this terminating event defined by the Social Security Administration (SSA) won’t apply. However, under some conditions, the individual may get credited based on the work quarters their spouse has earned.
What Are My Obligations I-864?
The sponsor’s obligations under Form I-864 cover them financially supporting the intended immigrant with their financial resources. Appending your signature on the affidavit means you will become the immigrant’s sponsor when they become a lawful permanent resident.
You will become legally responsible for financially supporting the immigrants you are sponsoring until certain terminating events occur. Also, you will repay the means-tested benefits the immigrant receives to the appropriate government agency.
Not paying the debt means getting sued by the agency or immigrant in federal court. Joint sponsors and household members are independently liable to reimburse the means-tested public benefits the immigrant gets. The agency or immigrant can sue the joint sponsor, even if the petitioning or main sponsor isn’t sued.
Can Fraud At Inception of Marriage Terminate Form I-864 Affidavit of Support?
Fraud at the inception of marriage is one of the defenses sponsors use to get out of the contract. If the intending immigrant defrauded the petitioner-sponsor into marrying him or her, the latter can seek annulment based on fraud.
This annulment will typically represent impediments to recovery in any action the sponsor takes under the I-864 affidavit of support. The sponsor’s lawyer can argue under the doctrine of “unclean hands” that the plaintiff should be equitably estopped from claiming I-864 affidavit of support damages.
What Other Possible Defenses Can a Sponsor Raise to Terminate Affidavit of Support?
A sponsor can defend themselves against a claim for any support obligation using defenses such as res judicata, due process, and collateral estoppel. They can also use the defense of infringement on marital and familial rights, fraud, collateral source setoff, and contract-based defenses which should be contained in their affidavit of support.
The contract-based defenses for support obligation can include lack of consideration, duress, void for vagueness or lack of definite terms, unconscionability, and illusory contract.
Apart from fraud, unconscionability is another interesting affirmative defense that sponsors can use to terminate Form I-864. However, this doctrine has yet to be applied in the context of the affidavit of support. Nevertheless, the support form can be found unconscionable under certain circumstances where enforcing it would amount to unfairness or injustice.
Does Divorce Terminate Responsibility Under Form I-864?
Divorce is not accepted as grounds for terminating the legally binding contract of the Affidavit of Support. Thus, even if the petitioning sponsor divorces the intending immigrant soon after the latter immigrated, they will continue to provide support financially.
That means the sponsor, including the primary and co-sponsors, will remain responsible for the immigrant spouse, divorce or separation regardless. Plus, if the immigrant spouse sues the sponsor for failure to fulfill their obligations, their claims will be held in immigration court.
Must Your Ex-Spouse Work for Ten Years for the Support Obligations to End?
The Affidavit of Support law obligates sponsors to support their immigrant ex-spouses until after they’ve worked approximately ten years. That means, until they have earned forty work quarters, according to the Social Security Act, you remain financially responsible for them.
Meanwhile, you can count the work you did while you were still married toward the stipulated forty quarters. However, the work you do after the divorce case becomes final will stop counting in this manner.
What If You Go Bankrupt; Do You Still Have to Support Your Stepchild?
This will depend on the interplay between different U.S. immigration law areas, some of which federal courts are yet to thoroughly interpret. Legally, you are still responsible to your stepchild despite bankruptcy, but you can offer a legitimate argument to discharge your obligation.
Bankruptcy doesn’t necessarily terminate the contract as the law discharges most debts and contractual obligations in bankruptcy, excluding domestic support obligations so-called. The domestic support obligations include maintenance, alimony, and support recoverable or owed to a current spouse, ex-spouse, or child.
Nevertheless, you may argue that your obligation to your stepchild is not a domestic support obligation reflecting on him not qualifying for child support. Before using this premise, you should consult with a bankruptcy attorney and an immigration lawyer.
What Are the Five Ways of Terminating Obligations Under Form I-864?
Financial support under Form I-864 lasts until one of these five terminating events occurs as defined by federal statutes and regulations:
- The sponsored immigrant becomes a U.S. citizen, thus terminating the support obligation under the Affidavit of Support form. Immigrants can apply for an immigration status change by filing Form N-400 five years after obtaining a lawful permanent resident status. Otherwise, they can apply three years after obtaining the marriage-based green card.
- The sponsored immigrant has fulfilled the forty quarters of work defined by the Social Security Administration.
- The immigrant is no longer a green card holder in the United States and has left the United States.
- The sponsored immigrant was placed in deportation proceedings, but then seeks permanent residency based on a separate I-864.
- The sponsor or sponsored immigrant dies; if the sponsor dies, their estate can be liable for claims up till when they died.
Does the Death of the Main Sponsor Terminate the Joint Sponsor’s Obligations?
The death of the main sponsor terminates only the obligation of the main sponsor. That means other sponsors that served as co-sponsors before the primary sponsor died are still bound by the I-864 contract.
These include the joint sponsor, substitute sponsor, or household member; they are still liable to provide financial help to the immigrant. Also, the termination of a household member’s or sponsor’s obligations under I-864 does not relieve them of any reimbursement obligation accrued before the termination.
Do You Remain Liable If Your Immigrant Ex-Spouse’s I-751 Is Denied?
If the ex-spouse files an I-753 immigrant visa petition and the United States Citizenship and Immigration Services denies it, which is unlikely, she will face an immigration judge. The judge decides whether or not she leaves the United States; if she still qualifies for support, your obligation continues.
Thus, until she is deported, you will likely still continue providing financial help and she can rightly sue you for compliance. Furthermore, she can convince the judge using extreme hardship if she was forced to leave the United States.
Does A Petitioner’s Obligation Continue If the Immigrant Spouse Is Unemployed?
If the immigrant spouse refuses to find employment, the petitioning spouse who has permanent residence and is a household member is still obligated to provide adequate financial assistance from his or her income based on the minimum income requirement. If the sponsor who is a household member doesn’t provide the needed financial help, the sponsored alien has the right to sue them bearing in mind significant ownership interest.
However, if the United States Citizenship and Immigration Services or Department of Homeland Security denies your spouse’s green card application and they didn’t re-file an I-864 affidavit of support obligation, there is no I-864 obligation anymore. However, you should talk with a family law attorney or immigration lawyer from a reputable law firm to know what to do.
Does the Petitioner Have to Be the Sponsor?
The petitioning relative or immediate relatives of the intending immigrant is always the main sponsor or substitute sponsor when filing an I-864 affidavit of support, and this is in line with the Nationality Act and Social Security Act guiding permanent resident status.
It is only when they are unable to meet the financial requirements according to the Federal Poverty Guidelines and their poverty level that they need a co-sponsor who can be a family member providing support obligation.
When that happens, they are to fill a new form with the consular officer stating that they cannot effect spousal maintenance based on their low annual income and large household size.
]In support of this form, they are also expected to file form I-864 affidavit of support obligation with affirmative defenses why they cannot be a new sponsor based on the poverty guidelines
The petitioning spouse must be at least eighteen years old, a permanent resident, or a U.S. citizen. Also, such must be domicile in the U.S., its possession, or territory; they can have residence abroad, but temporarily.
Why Not Work with Herman Legal Group?
If you don’t know how to calculate your sponsor’s income when applying for an immigrant visa, what you need is the help of a skilled immigration attorney and that is one of the many public benefits you get when you work with Herman Legal Group. Our team of immigration lawyers know everything about cash value when offering services which is why you can always seek reimbursement for such benefit that we offer.
We can help you as a substitute sponsor, an alien lawfully admitted, and even permanent residents who need help with form I-864 affidavit of support, new grant, or any other support obligation. All you need to do is schedule a consultation with Herman Legal Group by calling +1-216-696-6170 or booking online.
A good attorney-client relationship in a standard law firm is always a good idea for anything related to immigration to the U.S. Interestingly, it doesn’t matter whether you are a lawful permanent resident, filing an affidavit of support form as a joint sponsor or one who needs to understand the support obligation.
Through it, you can understand the federal poverty line and if you meet the minimum income requirement. With the right help, you don’t have to go through the stress of denial when you make an application for an affidavit of support or stand for someone seeking a permanent resident status as a joint sponsor.