Family law attorneys need to understand that certain immigrants are entitled to financial support far…
What are the consequences of signing the Form I-864?
The I-864 is a binding legal contract between you and the United States government. Too often, people sign the Form I-864 without understanding the serious consequences of doing so. This post offers a detailed explanation of the legal ramifications of signing a Form I-864.
Note that this discussion applies to you regardless of whether you are signing a Form I-864 as a visa petitioner or as a joint sponsor. The consequences also apply to you if you are signing a Form I-864A as a household member.
1. The Affidavit of Support is a legally binding contract.
First of all, understand that the Form I-864 is absolutely a legally enforceable contract. Back in the old days, before 1996 to be exact, affidavits of support were not legally enforceable. That old version of the affidavit, the Form I-134, is still used in some types of immigration cases. But Congress decided to require a legally binding affidavit in all family-based immigration cases. There are some very limited exceptions, but it’s 99% accurate to say that the affidavit is always required in a family-based immigration case.
The purpose of the affidavit is this: Congress wanted to require greater assurance that new immigrants would not create a drain on public resources. It wanted to ensure that the immigrant’s visa sponsor, not the American public, serve as the person’s insurance policy. The terms of the Form I-864 are supposed to ensure that if an immigrant needs financial support, that comes from the visa sponsor and not through public welfare programs.
2. First binding promise: provide support at 125% of the poverty line.
By signing the affidavit of support, you make two binding legal promises. First, by signing the Affidavit, you promise to ensure that the intending immigrant has income that is at least 125% of the federal poverty guidelines. The guidelines are adjusted each year, but currently for a one-person household, we’re talking about $1,518 per month, and that goes up for each additional household member. If the intending immigrant’s income falls below that required level, you are legally required to provide financial support to make up the difference.
Now, when does this actually happen? In reality, this becomes an issue when a married couple has separated. Roughly 50% of marriages in the United States ultimately fail. If a US petitioner has brought a spouse into the United States and they get divorced, the immigrant is still entitled to support from the petitioner. In order to receive support, the immigrant has to be earning an income of less than 125% of the poverty guidelines. In practice, enforcement is usually sought by immigrants who are unemployed.
You need to take this part of the Form I-864 very seriously. If the sponsored immigrant is entitled to support and you do not provide it, she can sue you in court. Such lawsuits are authorized in both state and federal court. Additionally, the Form I-864 contains a jurisdictional waiver, meaning that you could be forced to defend a lawsuit on the other side of the country.
Under the immigration statute, the court will require the sponsor to pay for all of the costs of the lawsuit. That includes attorney fees for the immigrant’s lawyer. Those fees can easily exceed the financial liability for support. You might expect $50,000 in legal fees for the other side, even for a case that gets resolved relatively early in the legal process.
2. Second binding promise: repay the cost of public benefits provided to the immigrant.
The second promise is to repay the government for the cost of any federally funded means-tested public benefits paid to the intending immigrant. These programs include Medicaid and TANF, which is a form of cash assistance, but they do not include general medical care such as emergency room visits. Sponsors often incorrectly think that they will be responsible for any medical care provided to the sponsored immigrant, but that’s just not true.
If the intending immigrant receives public benefits, you can be sued by a government agency for the cost of those benefits. Generally, it’s uncommon for agencies to take this step. However, agencies do have the legal ability to take this step if they choose to.
3. How long does the Affidavit of Support last?
Your obligations under the affidavit continue until the first of one of these five events. The immigrant:
- becomes a citizen;
- is credited with 40 quarters of work under the Social Security Act;
- is no longer a resident and departs the United States;
- is ordered removed, which means deported, but gets residency based on a different I-864; or
But the intending immigrant’s divorce from the petitioner does not end a sponsor’s obligation. It’s conceivable that no terminating event will ever occur, so it’s possible that the obligations under the affidavit could last for the duration of the immigrant’s life.
The intending immigrant can choose to seek citizenship in as little as three years, but immigrants are not ever legally required to become citizens if they choose not to do so. Sponsors often think that their obligations terminate after 10 years, but that’s incorrect. The obligation terminates after the immigrant can be credited with 40 quarters of work, but that event will not occur, for example, if the immigrant is divorced from her petitioner and is not working herself.
4. Additional promise to update your address.
If you file the I-864, you’re required to update the US government of any address change. Within 30 days of changing addresses, you must file a Form I-865 form that’s available on the USCIS website. If you don’t properly file a Form I-865 address update, you can be fined up to $5,000.
In reality, USCIS typically does not pursue fines against sponsors who fail to update their address, but the government has every legal right to do so if it wants. If the President were to adopt a policy requiring government enforcement of the Form I-864, we can certainly imagine that they could also get stricter about enforcing the address updating requirement.
5. Should you sign the Form I-864?
Would-be sponsors are often shocked to hear about the profound legal consequences of signing the Form I-864. If you’ve been asked to sign one, it’s helpful to distinguish between primary sponsors and joint sponsors or household members.
A primary sponsor is the visa petitioner who’s initiating the immigration case. In a marriage-based scenario, that’s the US citizen or resident spouse. Usually, visa petitioners have little problem agreeing to sign the Form I-864. These are typically US spouses who badly want to be united with their other half. Naturally, the couple plans to remain together. If a petitioner balks at the prospect of supporting his spouse, that’s often a good indication to us that the relationship might not be what it seems.
It’s important to know that most courts say that you cannot avoid the I-864 support duties through a nuptial agreement. Since the rights under the I-864 were created by Congress, courts typically say that you cannot avoid the obligation through a private contract. If you sign the I-864, assume that you are going to be on the hook for the legal obligations.
Now, joint sponsors and household members present a different situation. These individuals are not involved in initiating an immigration case. Instead, if the primary sponsor lacks sufficient income, an additional individual can jump in to promise financial support. In doing so, they agree to the same legal obligations as the primary sponsor. Unlike the visa petitioner, these individuals typically have far lower stakes in the immigration process. You don’t get any legal benefit by signing the I-864, so the joint sponsor is being asked to incur serious legal obligations, but doesn’t get anything, at least from a legal perspective, by doing so.
Now, many people sign joint sponsor I-864s to assist their friends and family members and never suffer financially for having done so. But you need to weigh your desire to help a family member or a friend with the very real legal obligations of signing a Form I-864. In the vast majority of cases, signing a Form I-864 has no negative ramifications for the sponsor, but you need to understand that the obligations imposed by the affidavit are real and legally enforceable. Sign it only if you are going into the situation with your eyes wide open, and a full understanding of what you’re doing.
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6. The immigrant enters the United States fraudulently.
Also, you forgot to mention that the immigrants are not ever legally required to accrue 40 quarters of work under the Social Security Act if they choose not to do so.
Not only are sponsored immigrants under no obligation to seek 40 quarters of work, but federal courts also hold that they have no duty to seek work whatsoever when it comes to claims under the Affidavit of Support. See, e.g., Liu v. Mund (7th Cir.).