A version of this article first appeared in the Side Bar journal for the Litigation…
Certain green card holders are legally entitled to receive financial support from their immigration sponsors. Exactly who qualifies for support?
1 – Did you get your green card through a spouse or family member?
The Affidavit of Support is required in virtually every family-sponsored immigration cases. If you immigrated got yoru visa or green card from a petition filed by a family member, chances are high that an Affidavit of Support was signed in your case.
But just to be clear, family-sponsored cases would include anyone who got their immigrant visa or green card through a…
- Spouse (husband/wife). This is by far the most common scenario for I-864 enforcement. Almost every lawsuit in the United States to enforce the Affidavit of Support has been brought by someone who secured their immigration status through a current or former spouse.
- Fiancee. The I-864 is required in fiancee green card cases at the final “adjustment of status” process. If you entered the U.S. as a K-1 fiancee and then got your green card after filing a Form I-485, the Affidavit of Support was required.
- Parents, siblings and children. The Affidavit of Support is also required in cases where a parent, brother/sister or child files a Form I-130. In practice, it is rare to see these matters result in I-864 enforcement lawsuits. I have seen only two instances where a child was sued by a parent for support.
2 – Is your income under 125% of the federal poverty line?
The sponsor’s financial support obligation is tied to the federal poverty line. Specifically, the sponsor has to ensure that your income is at least equal to 125% of the poverty line for your household size. If your income has been below this level while the I-864 contract was in effect, then your sponsor has a legal responsibility to provide support to you.
The current (2021) federal poverty guidelines are as follows:
Your sponsor’s legal duties under the Affidavit of Support started the moment you became a U.S. resident (green card holder). If your income was below 125% of the poverty line at any point after you became a resident, your sponsor could be liable under the Affidavit of Support.
3 – Has the Affidavit of Support been terminated?
Finally, you need to examine whether your the Affidavit of Support signed by your sponsor is still in effect. This is generally easy to assess, because there are only five things that end the I-864 contract. If none of these have happened, the support contract should still be in effect. They are…
- You have become a U.S. citizen. Once you have “naturalized” by getting an approved N-400, the Affidavit of Support is no longer in effect.
- Credited with 40 quarters of work. People often say that the Affidavit of Support ends after 10 years. That’s incorrect. It ends after you have 40 quarters of work under the Social Security Act. For someone who has been a green card holder only a few years, there is generally no way that could have 40 quarters. If you have been a green card holder longer, you can download your Social Security statement here for free.
- No longer a resident and has left the U.S. For this to end the I-864 contract, you would need to have lost your residency (through relinquishing it, for example) and left the U.S. I have never consulted with a prospective client where this was an issue, since normally the person will still be in the U.S. Note that merely losing your status as a residency (such as by forgetting to file the Form I-751 to remove conditions) should not terminate the Affidavit.
- Removal order + readjustment. If you were ordered deported and managed to secure new status as a green card holder in deportation/removal court, that terminates the original Affidavit. I have never seen this in my practice.
- Death. If you are reading this, you don’t need to worry about this terminating event. The Affidavit also terminates on the death of the sponsor, although the estate is liable for any debt incurred up to the date of the sponsor’s death.
Those are the only events that terminate the Affidavit of Support. Importantly, divorce from a sponsor does not terminate the Affidavit of Support.
If you answered yes to questions (1) and (2), and if none of the conditions in (3) apply to you, then you may have a claim under the Affidavit of Support. If you would like us to take a look at your potential claim, free of charge, use the confidential contact link below.