I've been representing clients in lawsuits to enforce the USCIS Form I-864, Affidavit of Support…
Support under the Form I-864 lasts until one of the five Terminating Events defined by federal statutes and regulations. Until one of these five events happens, the Form I-864 sponsor is bound by the contract and required to provide support when needed.
1 – Becoming a U.S. citizen.
If a sponsored immigrant becomes a U.S. citizen, that terminates the support obligation under the Form I-864. No immigrant ever has a legal obligation to become a citizen. For many immigrants – such as those from Japan – becoming a U.S. citizen would mean the loss of their original citizenship. Generally, immigrants can pursue citizenship by filing a N-400 five years after becoming a lawful permanent resident (green card holder); three years in the case of marriage to a U.S. citizen.
2 – 40 quarters of work.
The Form I-864 terminates after the sponsored immigrant has 40 quarters of work as defined by the Social Security Administration (SSA). Lawyers often say that the I-864 ends after 10 years, but that is simply incorrect. If an immigrant has been working for 10 years she may have earned 40 quarters of work (10 years x 4 quarters per year = 40 quarters) – but that is true only if the individual is working. If the individual is not working, this Terminating Event might never occur.
Calculating quarters of work turns out to be very complicated under the rules used by the SSA. The rule that comes up the most often is that – under some conditions – an individual may be credited with work quarters earned by a spouse. So, for example, it could be possible for an immigrant to hit the 40 quarter mark by earning 20 quarters in her own right, and later receiving credit for 20 quarters from a spouse.
Fortunately, the SSA keeps track of work quarters for us. So to determine how many quarters a particular individual has earned, all she has to do is request a statement from the SSA.
3 – Is no longer a permanent resident and has departed the United States.
The I-864 terminates after an immigrant has lost status as a lawful permanent resident (green card holder). But, this Terminating Event also requires that the immigrant has also departed the United States.
Here is a common example that illustrates this terminating event.
Immigrants who gain status based on a marriage of two years or less become “conditional” permanent residents. Such individuals must file a petition (the Form I-751) at the end of their 2-year conditional residency. If they don’t do that, their residential status is automatically ended. If a marriage is in the process of falling apart around that time, in immigrant may not file the petition in time, and automatically lose her status. But even if this happens, the I-864 Terminating Event has not occurred. As long as the individual remains physically within the United States the I-864 remains in effect. The contract would be terminated only if the individual decided to leave the country.
4 – After being ordered deported seeks permanent residency in deportation proceedings based on a different I-864.
This is a very uncommon Terminating Event that our law firm has never encountered in practice. This Terminating Event would occur if an individual was order removed (i.e., deported), but regained residency based on a new Form I-864. The likely example of this would be if a person obtained an approved family-based petition (Form I-130) while in deportation proceedings, then adjusted status (Form I-485) through the immigration court. In such a situation, the statute says that the previous sponsor is relieved of his responsibility, which effectively transfers to the new sponsor. Again, in practice this is an uncommon occurrence.
5 – Death.
The death of an immigrant terminates a sponsor’s obligation under the Form I-864. Death of the sponsor also ends the contractual obligation, although the sponsor’s estate can be liable for claims up to the time of death.
Nothing other than these five Terminating Events ends a sponsor’s duty under the Form I-864.
The five Terminating Events described above are the only thing that ends a sponsor’s obligation under the Form I-864. Until one of these five events has happened, a sponsor remains liable under the Form I-864. For that reason, these Terminating Events are the only defense that a sponsor is allowed to raise in court. In normal contract law cases, there are a number of “affirmative defenses” that allow a party to back out of a contract. But normal contract defenses do not apply in I-864 litigation.