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What is a joint sponsor’s liability under the 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.

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:

  1. The Form I-864, Affidavit of Support is a binding contract, and can be enforced as such; and also
  2. 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.

…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.

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Greg is recognized as the leading national authority on enforcement of the Form I-864, Affidavit of Support. Greg represents low-income green card holders in lawsuits to recover support from their sponsors. Practicing family-based immigration law, Greg also focuses on helping married and engaged couples with U.S. immigration.

This Post Has 5 Comments

  1. Consider the case where the husband and three children are US Citizens, and the (immigrant) wife is being jointly-sponsored by me. Consider a worst case scenario where neither husband nor wife can work. Am I liable for 125% of the Fed Poverty Level for one person (the immigrant wife) or for five persons (the whole family including four US citizens)?

  2. Saw this website and your knowledge on the subject and thought it might be good to ask this somewhat complex question. I have seen that spouses can be credited with each other’s social security quarters to equal to 40 while married (theoretically fulfilling the I-864’s requirements of 40 quarters to end in 5 years instead of 10 years?). However I do wonder if it would count AFTER a divorce. The quarters being reverted back to 20 and would reinstate the financial responsibilities an I-864?

    According to the I-864 form itself, it says this:

    “Your obligations that you signed will end if the person who becomes a lawful permanent resident based on that affidavit:

    B. Has worked, or can receive credit for, 40 quarters of coverage under the Social Security Act;”

    Now, according to the Social security administration, if a spouse divorces another, they loose the ability to count their ex-spouse’s quarters. Which would then bring them back down to 20 quarters instead of 40 (after 5 years of working.). HOWEVER, the I-864 explicitly states your obligations “will end” when the alien CAN receive credit for 40 quarters of work. So am I correct to understand the agreement ends at 5 years and stays ended, even if a year or years later they get divorced? I’m deducting that from the fact that it says it ends when the immigrant can receive or is eligible to receive credit for 40 quarters of social security. So can it be reinstated? I don’t see a clause for that, but maybe I’m seeing something wrong. Is there a case for this?

    1. Hi, Kyle:
      The immigration statute is clear that for a spouse’s work quarters to continue the parties must “remain married.” So once the marriage ends, Wife’s quarters are no longer credited to Husband and vice-versa.
      ~Greg

      1. I can see why you say that, according to section 213a, 3. , subparagraph (B), (ii) where it says: “ all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased.”….However, I’m confused as to why it clearly states this: “(A) In general.-An affidavit of support is not enforceable after such time as the alien….. or can be credited with such qualifying quarters as provided under subparagraph (B), and (ii)” (quoted at the beginning of my comment). The condition of qualifying for the 40 quarters combined with spouse WHILE STILL married (in 5 years with both working) would fulfill the requirement of being credit with 40 working quarters. Therefore why wouldn’t the I-864 be unenforceable? I don’t see any clause or wording that specifically indicated that once this condition was met, it could somehow be reverted and the obligations for the sponsor of the I-864 reinstated….would this not be equal to, for instance, someone giving up their residency and returning home, then trying to come back using the same I-864? Why would this be any different? The conditions were met for the I-864 to no longer be in effect, so THAT specific I-864 contract would be over and could not be reinstated. What statement in the INA documents would determine otherwise in regards to 40 work quarters happening while being married for 5 years?

        This specific situation doesn’t apply to me, but I am curious in this subject matter because of its ambiguity. I read all your posts regarding I-864s and found you to be the most knowledgeable on the subject, so wanted to see your opinion on what I ascertained from this matter and from what I just said above.

        Thanks

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