I've been representing clients in lawsuits to enforce the USCIS Form I-864, Affidavit of Support…
A joint sponsor (also called co-sponsor) has the same liability under an Affidavit of Support as the primary sponsor. By signing the USCIS Form I-864, the joint sponsor agrees to “joint and several” liability on the contract. The sponsored immigrant can sue the joint sponsor for financial support in state or federal court.
A joint sponsor’s financial support obligation to the green card holder.
The USCIS Form I-864, Affidavit of Support is a binding legal contract. The contract is between the sponsor, who signs the I-864, and the United States government. The purpose of the contract is to ensure financial support for someone who is immigrating to the United States. Specifically, the contract is required as a safeguard to prevent that person from becoming dependent on public welfare programs. That is referred to in immigration law as becoming “a public charge.”
By executing an I-864, a joint sponsor agrees to ensure that the green card holder listed on the I-864 has a specific amount of income. Specifically, the joint sponsor guarantees that the green card holder will have income at or above 125 percent of the poverty line. If the green card holder’s income falls under 125 percent of the poverty line ($1,400 for a household of one), she can sue the joint sponsor for financial support.
The joint sponsor can be sued in either state or federal court. A lawsuit is permitted both because:
- The Form I-864, Affidavit of Support is a binding contract, and can be enforced as such; and also
- Because the Immigration and Nationality Act (8 U.S.C. 1183a(e)(1)) specifically creates a cause of action allowing the green card holder to enforce the contract.
Most often, the Form I-864 is enforced in federal court. But a state court of general jurisdiction also has the authority to hear these claims. We have litigated I-864 enforcement matters in both state and federal court, though again, federal court is our normal choice.
What is the joint sponsor’s liability in a lawsuit under the Form I-864, Affidavit of Support?
The calculation of damages is fundamentally straightforward in lawsuits to enforce the I-864. Damages equal the difference between the immigrant’s actual income during the period in question, and 125 percent of the poverty line. For example, 125% of the poverty line is $16,988 for a household of one in 2022. If the plaintiff is unemployed throughout 2022, she could recover $16,988; if she earns $5,000 in the calendar year, she could recover $11,988 ($16,988-$5,000).
The financial support obligation starts as soon as the sponsored immigrant obtains her green card. The obligation ends only upon one of the five Terminating Events listed in the contract and federal law. In most cases the I-864 will terminate only after the green card holder becomes a U.S. citizen or can be credited with 40 quarters of work history. Read more about the Terminating Events here. This means that a joint sponsor could be liable for multiple years of financial support to the green card holder.
The joint sponsor is also liable for the plaintiff’s legal fee and costs to enforce the I-864. This means that if the green card holder sues the co-sponsor for support, the Court can award that plaintiff all of her expenses in bringing the lawsuit. Those will be in addition to the joint sponsor needing to pay for their own lawyer. Legal fees in these cases can easily exceed $20,000, and in cases that are heavily litigated can surpass $100,000.
But what about the primary sponsor?
So the joint sponsor is liable… but what happened to the primary sponsor? That is normally the term applied to the person who initiated the immigration process by signing the Form I-130 petition. In the marriage-sponsored case, the primary sponsor is the U.S. citizen (or lawful resident) spouse.
Under federal law, the co-sponsor’s liability is characterized as “joint and several.” Put simply, that means that the beneficiary of the I-864 has the choice of whether to sue: (1) only the primary sponsor; (2) the primary and joint sponsor; or (3) only the joint sponsor. In reality, consider why a joint sponsor was required in the first place. If the primary sponsor had adequate income and assets on his own, a joint sponsor would not have been required. So the joint sponsor is virtually always in a superior financial position to the primary sponsor.
That is why in cases where there is a joint sponsor, it is the joint sponsor – not the primary sponsor – who is the main target for collection. This simply reflects the reality that the joint sponsor likely has the resources to ensure the financial support that they promised in signing the Affidavit of Support.
Note also that in signing the I-864, a joint sponsor agrees to submit to the personal jurisdiction of any court with subject matter jurisdiction over an enforcement lawsuit. This means that a joint sponsor can be made to defend an I-864 enforcement lawsuit in a court that would not normally have jurisdiction over the joint sponsor. For example, if the primary sponsor and I-864 beneficiary live in Texas, and the joint sponsor lives in Florida, the joint sponsor can still be brought into a federal lawsuit in Texas.
What about being sued by the government?
The government plays no role in helping a green card holder recover financial support under the I-864. There is a separate provision of the contract under which a sponsor can be sued for the cost of means-tested benefits provided to the sponsored immigrant. Currently, I am aware of no jurisdiction in the country that actively enforces that provision. In Washington State, for example, the government does not even have a policy for how they would enforce the I-864 if it wanted to. Nonetheless, this is a second potential liability under the I-864 that joint sponsors do undertake in executing the contract.