A version of this article first appeared in the Side Bar journal for the Litigation…
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 the discussion in this post 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.
The Form I-864 is a legal 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.
The purpose of the Affidavit of Support is this. Congress wanted 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 the immigrant needs financial support, that comes from the visa sponsor and not through public welfare programs.
Here’s how the Affidavit accomplishes that goal.
Promise #1: provide income support.
First, by signing the Form I-864 you promise to ensure that the intending immigrant has income that is at least 125% of the federal poverty guidelines. A table showing that income level is available on the Form I-864P, which may be found at http://www.uscis.gov/i-864p. Note that the levels are slightly higher for individuals residing in Alaska or Hawaii. The guidelines are adjusted each year. Currently, for a one-person household we are talking about $1,256 per month, going up $435 per month for each additional household member.
If the intending immigrant’s income level falls below the required level, you are legally required to provide support to make up the difference. When does that 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 U.S. petitioner has brought a spouse into the U.S. 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 guideline. In practice, enforcement is usually sought by immigrants who are unemployed. 864 very
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 courts. Additionally, the Form I-864 contains a jurisdictional waiver, meaning you could be forced to defend the lawsuit on the other side of the country. Under the immigration statute, the court will require the sponsor to pay for all costs of the lawsuit, including attorney fees for the immigrant’s lawyer. Those fees can easily exceed financial liability for support. You might expect $50,000 in fees, for example, for a case resolved relatively early in the legal process.
For an explanation of how long your support obligation lasts, see the discussion below.
Promise #2: reimburse government agencies.
Second, you promise to repay the government for the cost of any “federally funded, means-tested public benefits” paid to the intending immigrant. These include such programs as Medicaid and TANF (cash assistance) but does not include general medical care, such as emergency room visits. Sponsors often incorrectly believe that they will be responsible for any medical care provided to a sponsored immigrant, but that is just not true.
Regarding the second promise, if the intending immigrant receives public benefits you can be sued by a government agency for the cost of those benefits. Generally, it is uncommon for agencies to take this step. However, agencies do have the legal ability to take this step if they choose to. Moreover, the Trump Administration has considered making government enforcement of the Form I-864 mandatory. If it adopted this policy, agencies would be required to pursue claims against sponsors if immigrants receive public benefits.
For now, Promise #2 is not actually being enforced by government agencies. But, as noted, that could change.
How long does the contract last?
Your obligations continue until the first of these five events occur: the intending immigrant
- becomes a U.S. citizen;
- can be credited with 40 quarters of work;
- is no longer a permanent resident and has departed the U.S.;
- after being ordered removed seeks permanent residency based on a different I-864; or
The intending immigrant’s divorce from the petitioner does not end a sponsor’s obligations. It is conceivable that no terminating event would ever occur, so it is possible that your obligations 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 required to become citizens if they choose not to.
Sponsors often believe that their obligation terminates after 10 years, but that is incorrect. The obligation terminates after the immigrant can be credited with 40 quarters of work. But that event will no occur, for example, if the immigrant is divorced from her petitioner and is not working herself.
Responsibility to update information.
If you file the I-864 you are required to update the U.S. government of any address change. Within 30 days of changing address you must file an I-865 form, available for download at http://www.uscis.gov/i-865. If you fail to 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 to. If the President were to adopt a policy requiring government enforcement of the Form I-864, we can imagine that they could also get much stricter about enforcing the address updating requirement.
Should you sign the Form I-864?
Our clients are often shocked to hear about the profound legal consequences of signing a Form I-864. If you’ve been asked to sign one, should you? It’s helpful to distinguish between primary sponsor and joint sponsors/household members.
Primary sponsor. The primary sponsor is the visa petitioner who is initiating the immigration case. In a marriage-based scenario, this is the U.S. citizen or resident spouse. Usually, our visa petitioner clients have little problem agreeing to sign the Form I-864. These are typically U.S.-based 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 is often a good indication to us that the relationship may not be what it seems.
It is important to know that most courts say that you cannot avoid I-864 support duties through a nuptial agreement. Because the rights under the I-864 were created by Congress, courts typically say you cannot avoid the obligation through a private contract.
Joint sponsors and household members. These individuals present a different situation. Joint sponsors and household members are not involved in initiating an immigration case. Instead, if the primary sponsor lacks sufficient income, an additional individual can jump in to promise additional financial support. By doing so, they incur the same legal obligations as the primary sponsor.
Unlike the visa petitioner, these individuals typically have far less stake in the immigration process. You receive no legal benefit by signing the I-864. So the joint sponsor or household member is being asked to incur serious legal obligations but doesn’t gain anything (from a legal perspective) by doing so.
Many people sign joint sponsor I-864s to assist their friends and family with immigration, and most of these individuals will never suffer financially for having done so. Intending immigrants frequently get joint sponsor I-864s from their friends and family. But you need to weigh your desire to help with the very real financial obligations of executing this document.
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 eyes wide open, and a full understanding of what you are doing.