Every person who sponsors a family-based green card is required to submit an Affidavit of Support to U.S. Citizenship and Immigration Services on Form I-864. This is a binding contract between the sponsor and the federal government, and requires the sponsor to provide the immigrant any support necessary to maintain them at an income that is at least 125 percent of the Federal Poverty Guidelines for their household size. The purpose of this affidavit, implemented as part of federal welfare reforms in 1996, is to prevent the admission of immigrants who are likely to become reliant on public assistance. This is achieved by making their sponsors assume a fairly burdensome obligation to support them.
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How Much is the Obligation?
Federal Poverty Guidelines amounts are adjusted annually, and are about 25% higher in Alaska and Hawaii than in the continental U.S. (“lower 48” states). As of 2020, 125% of the annual Federal Poverty Guidelines amount in the continental U.S. is equal to $15,950 for a household of one person, $21,550 for a household of two people, or $27,150 for a household of three people.
If the immigrant has any income of their own, such as from investments, interest on savings, or a foreign pension program, the sponsor will only be responsible to pay the difference (if any) between that income and the Federal Poverty Guidelines amount.
When Does the Obligation End?
The obligation ends when the first of the following occurs:
- The immigrant becomes a U.S. citizen.
- The immigrant has worked or can be credited with 40 qualifying quarters (i.e., 10 years) of coverage under the Social Security Act.
- The immigrant no longer has permanent resident status and departs the United States. Note that permanent resident status generally terminates after one year outside the United States unless the immigrant has a re-entry permit. See this article for more information on maintaining permanent resident status outside the United States.
- The immigrant obtains a new adjustment of status as relief from removal.
- The immigrant dies.
Neither separation nor divorce terminates the obligation. The obligation is also not dischargeable in bankruptcy. If an immigrant never works in the United States, the obligation may continue for their entire life. Several courts, most notably the Seventh Circuit in Liu v. Mund, 686 F.3d 418 (2012), have held that the immigrant has no obligation to mitigate their damages by seeking employment.
There are conflicting opinions as to whether the obligation can be terminated by an agreement between the parties, such as a prenupital agreement or a marital settlement agreement. Some courts (and the Department of Homeland Security) have held that the immigrant’s rights to claim from the sponsor may be waived like any other contractual rights; others have held that they cannot be waived without the government’s consent to terminate its agreement with the sponsor.
How is the Household Size Counted?
Federal law and regulations are not clear on the scope of the obligation if the sponsor and the immigrant separate and live in separate households. The Ninth Circuit held in Erler v. Erler, 824 F. 3d 1173 (2016), that the sponsor’s obligation would then apply to the immigrant’s income alone, without considering anyone else they live with. Under this rule, if John sponsors his wife Maria for a green card, they divorce, and Maria moves in with Chad, then for as long as the support obligation continues, John would be responsible to ensure that Maria’s personal income is no less than the federal poverty guidelines for a one-person household, regardless of how much Chad makes. If John also sponsored Maria’s children for green cards, and those children moved in with Maria and Chad, they would be counted as part of Maria’s household for support purposes, and John would have to pay a higher amount.
How is the Obligation Enforced?
The obligation can be considered by a state court in a family law action, such as a divorce or separation case. It is important to note that obligations under an Affidavit of Support are distinct from alimony under state law (see this article for more details on alimony), and may be claimed separately from alimony. In most states, alimony terminates if the recipient remarries. An immigrant can also claim support by bringing a stand-alone suit in a federal district court. Federal law (8 U.S.C. 1183a(c)) allows the recovery of legal fees and costs of collection, whether an action is brought in federal court or state court.
State and federal government agencies can also theoretically enforce the obligation against the sponsor. While this has been relatively rare to date, the Trump administration made some efforts in 2019 to pressure government authorities to step up enforcement. There is also a theoretical possibility of health care providers, such as hospitals, enforcing the obligation against the sponsor if the immigrant uses emergency medical services and fails to pay for them.
How Can a Copy of the Affidavit be Obtained?
A copy of the Affidavit is retained by USCIS as part of the immigrant’s “A-file.” A sponsor or immigrant can obtain a copy by making a request to USCIS under the Freedom of Information Act. It is sometimes difficult or time-consuming to obtain a copy, in which case the court must be persuaded that the affidavit exists based on the fact that the immigrant has a family-sponsored green card.