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Money can't buy love, but it does matter when bringing a loved one to the U.S.: A look at the Affidavit of Support1


By John C. Valdez, Attorney at Fontes Figueroa Law Group

Serving clients in Orange County, Riverside County, and surrounding areas.

Poets and pop singers often downplay the importance of money when speaking of love,2 but the drafters of our U.S. immigration laws are not so sentimental. Indeed, if you want to sponsor your foreign national spouse for a green card, you will need to show that you can support your true love.3 The rational for this requirement is that it is in our public interest to assure that immigrants coming to the U.S. will not go on welfare and, thus, be a burden on society. The instrument the government uses to help prevent the admission of someone who would become a public charge is called an Affidavit of Support.

What is an Affidavit of Support?
The Affidavit of Support is a binding contract between the sponsor of a green card applicant and the U.S. government. If you are sponsoring your wife or husband for a green card, you most likely need to complete this form.4 When completing this form, you will be required to show that you have sufficient income (and in some cases assets) to demonstrate that you can maintain your spouse and other members of your household at 125% of the Federal Poverty Guidelines (“Poverty Guidelines”). The Poverty Guidelines are updated each year.5 The 2013 Poverty Guidelines list the poverty level, at the 125% calculation, for a family of four at $29,437.

Does a Sponsor Face Potential Liability Associated with the Submission of an Affidavit of Support?
Marriage can, and should, be an uplifting and rewarding experience, but it comes with obligations, especially when one partner is sponsoring the other for a green card. Sponsors should be aware that the submission of an Affidavit of Support creates serious obligations. For example, if, after receiving a green card, your spouse later applies and receives certain Federal, State, or Local welfare benefits, the agency making the payments will have the right to seek reimbursement from you, possibly in a lawsuit.

Moreover, the obligations of the affidavit of support will not end in the event of a divorce. Under the terms of an Affidavit of Support, the sponsor is obligated to guarantee that he or she will support the immigrant spouse at no less than 125% of the Poverty Guidelines. Pursuant to 8 U.S.C. § 1183a(a)(1)(B), the Affidavit of Support is legally binding and “enforceable against the sponsor by the sponsored alien,” as well as by government agencies. Some courts have found that this statute means that in divorce proceedings, the immigrant will be entitled to receive support payments that will maintain the immigrant as specified under the Affidavit of Support.6

What if the Sponsor Does Not Earn 125% of the Poverty Guidelines?
All is not necessarily lost if you are a poor (under government standards) but faithful and loving spouse of an intending immigrant. Meeting the income requirements for sponsorship can be especially difficult for student citizens who have not yet had a chance to earn full-time wages. If your income is too low, you may be able to use your assets to help meet the required support obligations; however, the formula used to determine if your assets are sufficient is very strict and may or may not prove helpful. You may also ask a friend or relative to be a joint sponsor.7 Only U.S. citizens, nationals, or permanent residents may be joint sponsors. Joint sponsors must be at least 18 years of age and must be domiciled in the United States, or its territories or possessions. A joint sponsor must agree to all of the Affidavit of Support obligations discussed above. The joint sponsor may choose to sponsor only certain family members on the Affidavit of Support, but must individually meet the income requirements for support of those individuals. A second joint sponsor may be used to sponsor the remaining household members. The government will permit no more than two joint sponsors. In all cases, the petitioning spouse must submit an Affidavit of Support, regardless of whether there is a joint sponsor or two. In addition, if the petitioner is serving in the military, the amount of income required under an affidavit of support may be reduced.

How Long Does the Affidavit of Support Obligate the Sponsor to its Terms and Conditions?
The terms of the Affidavit of Support can bind the sponsor for a very long time. It continues to be enforceable until one of the following occurs:

  • • The sponsor dies;
  • • The sponsored immigrant dies;
  • • The sponsored immigrant becomes a U.S. citizen;
  • • The sponsored immigrant loses his or her green card status; or
  • • The sponsored immigrant has completed 40 qualifying quarters of work in the United States.

Conclusion
Love may, indeed, be free, but marriage always involves some issues concerning money. Under our immigration laws pertaining to marriage cases, these issues are usually associated with the Affidavit of Support requirements. Petitioners would be well-advised to pay careful attention to these requirements.

Footnotes:
1) This article has been updated from a prior version.
2) See e.g., “Can’t Buy Me Love” by the Beatles (Lennon/McCartney), a Billboard number one hit in 1964 that expressed the notion that money should not be relevant in affairs of the heart.
3) The Affidavit of Support is required in most family-based immigration cases, and it is sometimes required in employment-based cases, but this article only discusses the Affidavit of Support as it relates to marriage cases.
4) There are some exceptions to the requirement to submit an affidavit of support in a family-based immigration matter, but they seldom apply. For example, there is an exception for an intending immigrant who has earned or can be credited with 40 qualifying quarters of work in the United States. I have not had too many cases, however, where the intending immigrant has already worked 10 years in the U.S.
5) The poverty guidelines can be found at the USCIS website, www.uscis.gov, under immigration forms, in the form I-864P, Poverty Guidelines.
6) See, e.g., Cheshire v. Cheshire, 2006 U.S. Dist. LEXIS 26602 (M.D. Fla. 2006); Stump v. Stump, 2005 U.S. Dist. LEXIS 26022 (N. Dist. Ind. 2005); and Davis v. Davis, 2004 WL2924344 (Ohio Ct. App. Dec. 17, 2004).
7) Under certain conditions, sponsors can also use the income of the intending immigrant or other relatives or dependents living in the household to meet the income requirements.