Most practitioners, I would guess, are not aware of a sponsor’s legal exposure after executing an affidavit of support. This is also true of joint sponsors and household members who agree to help the sponsor when his or her income is insufficient. If practitioners were aware, they might take more time explaining the full range of risks and downsides of executing an I-864, Affidavit of Support under Section 213A of the INA, or recommend that the sponsor seek outside counsel before signing the form.

Fortunately, few sponsored immigrants actually initiate enforcement actions against their sponsors. When they do, these lawsuits are almost always brought by one spouse against the other one after a failed marriage. While the sponsor’s legal requirements are set forth clearly in the I-864, it is noteworthy how many sponsors appear caught off-guard after the sponsored immigrant has brought a claim for financial support. They are even more surprised upon learning how few defenses they can mount.

This article will review those legal requirements, the six situations that terminate the affidavit of support, and the legal rights of the sponsored immigrant. It will then summarize the case law that limits the sponsor’s defenses and ability to challenge enforcement actions.

Sponsors’ Legal Obligations

By executing the affidavit of support, the sponsor, joint sponsor, or substitute sponsor agrees to do the following:

• Maintain the sponsored immigrant at an annual income that is not less than 125 percent of the Federal Poverty Guidelines (FPG);
• Reimburse any federal, state, or other entity that provides a means-tested benefit to the sponsored immigrant;
• Submit to the jurisdiction of any state or federal court for actions brought by the sponsored immigrant or federal, state, or local entity to enforce the affidavit; and
• Within 30 days of changing address, notify the Attorney General and the state where the sponsor is residing.

INA §§ 213A(a)(1), (d).

The affidavit of support is a contract between the sponsor and the federal government. 8 CFR § 213a.2(d). The intended beneficiaries are the sponsored immigrant and any federal, state, or local government agency or private entity that provides a means-tested benefit to the sponsored immigrant. The intended beneficiaries may bring a civil action to enforce the contract in federal or state court. The statute provides that the affidavit is legally enforceable against the sponsor in actions brought by either the sponsored immigrant or a federal, state, or “other entity.” In other words, the sponsored immigrant can sue the sponsor to enforce the maintenance agreement. Should the immigrant ever obtain a means-tested public benefit, the agency or entity that provided it — at least in theory — could seek reimbursement from the sponsor. For a variety of reasons, this is unlikely to happen, and this article will focus on actions brought by the sponsored immigrant.

A joint sponsor who executes an I-864 enters into the same agreement as the sponsor and is liable to the same degree. The joint sponsor shares a contractual obligation with the petitioner/sponsor to maintain the sponsored immigrant at 125 percent of FPG, rather than each bearing a separate obligation to maintain the immigrant at that level. The sponsored immigrant can elect to enforce the affidavit agreement against either the joint sponsor or the petitioner/sponsor, or both. However, he or she can only collect a judgment up to 125 percent of FPG.

The household member who executes Form I-864A, Contract Between Sponsor and Household Member, who could be a relative or even the intending immigrant, agrees “to provide the sponsor as much financial assistance as may be necessary to enable the sponsor to maintain the intending immigrants at the annual income level required by ... the Act.” 8 CFR § 212a.2(c)(2)(i)(C). All parties to Form I-864A must agree to be jointly and severally liable for any reimbursement obligation that the sponsor may incur, as well as submit to the personal jurisdiction of any court hearing the matter. Several liability means that the sponsored immigrant may choose to enforce the affidavit of support against either the petitioner/sponsor, the joint sponsor, or the household member.

Termination of the Contract

The liability of the sponsor executing the affidavit of support only terminates upon one of the following occurrences:

• The sponsored immigrant’s naturalizing or deriving U.S. citizenship;
• The sponsored immigrant’s earning or being credited with a total of 40 qualifying quarters, as defined by Social Security law;
• The sponsored immigrant’s dying;
• The sponsored immigrant’s losing or abandoning Lawful Permanent Resident (LPR) status and departing from the United States;
• The sponsored immigrant’s being ordered removed but re-adjusting status in immigration proceedings through submission of a new Form I-864; or
• The sponsor’s dying.

INA §§ 213A(a)(2), (a)(3); 8 CFR § 213a.2(e)(2)(i).

Sponsored immigrants who work in the United States with a valid Social Security card in covered employment earn qualifying quarters that count toward Social Security coverage. The worker can earn up to four quarters per year; the sponsored immigrant can also be credited for quarters earned by a spouse during the marriage or by either parent before he or she turns 18.

Abandonment or loss of LPR status can occur through affirmative misconduct or departure from the United States. Misconduct includes the commission of crimes, fraud, or other miscellaneous acts. Abandonment turns on the length of time the LPR has been absent from the United States — usually more than one year — as well as other factors, including the maintenance of a residence in the United States, employment, family and other ties to the United States, and the LPR’s intention at the time of departing.

The statute allows for termination of the contract upon the sponsor’s death. However, future liability of the sponsor’s estate for actions brought by the sponsored immigrant likely will be a matter of state law interpretation. In any event, the regulations state that the sponsor’s estate is not relieved from liability for any reimbursement obligation that accrued before the sponsor’s death. 8 CFR § 213a.2(e)(3).

The sponsor’s or household member’s contractual obligations under the affidavit of support do not begin until and unless the intending immigrant obtains LPR status. It is not binding upon execution and submission. Therefore, the sponsor, joint sponsor or household member may withdraw the affidavit at any point up to the time the intending immigrant is granted LPR status. 8 CFR §§ 213a.2(e), (f).

Typical Enforcement Action

The typical enforcement action happens between disgruntled spouses. The sponsor executes an affidavit of support for his or her spouse, that spouse immigrates, and subsequently they separate or divorce. The sponsor’s continuing obligation is to provide the immigrant with whatever support is necessary to maintain him or her at an annual income of at least 125 percent of FPG for a one-person household. The obligation begins on the day of separation and continues, year by year, until the affidavit of support terminates. For 2023, this amounts to $18,225 based on the current FPG.

Example. Roberta petitioned for her husband, Alex, who immigrated based on an affidavit of support that she filed. Two years later, Alex moved out. Roberta is obligated to maintain Alex at 125 percent of FPG for the duration of the contract. Alex is unemployed and has no interest in naturalizing. Alex is treated as a household of one, and for 2023 can expect to receive from Roberta at least $18,225. In most years, the FPG increases incrementally. For example, it increased by $1,238 from 2022.

Sponsor’s Possible Defenses

1. Divorce?

   Divorce does not terminate the sponsorship agreement. A spouse who sponsors an immigrant remains liable under the affidavit until one of the six conditions occurs. This may result in hardship for sponsors who are battered spouses and who might otherwise be inclined to divorce the abusing spouse. Divorce cuts off the ability of the sponsor to credit his or her qualifying quarters to the sponsored immigrant and, thus, terminate the contract sooner.

2. But wasn’t this dealt with in the divorce proceeding?

   No. It is clear that the rights of the sponsored immigrant under the affidavit of support exist apart from those that exist under state divorce laws. Liu v. Mund, 686 F.3d 418, 419–20 (7th Cir. 2012). While alimony payments ordered by a state court will reduce the amount that is owed the sponsored immigrant, payments under the affidavit of support are a separate obligation. The courts have also been clear that child support is treated as separate and not as income to the sponsored immigrant. See, e.g., Younis v. Farooqi, 587 F. Supp. 2d 522 (D. Md. 2009).

3. Sponsor’s duty to mitigate damages?

   It is becoming clear that the sponsored immigrant has no affirmative duty to seek employment or reduce (“mitigate”) the damages the sponsor will incur. In other words, the sponsored immigrant is under no obligation to work or even look for a job. Several courts have addressed this issue, and almost all have determined that the sponsored alien has no duty to mitigate damages. See, e.g., Zhu v. Deng, No. COA 16-53 (N.C. Ct. App. 2016); Liu. v. Mund, 686 F.3d 418 686 F.3d 418, 422–23 (7th Cir. 2012); Harsing v. Naseem, Civil 11-1240CCC (D.P.R. Jan. 18, 2012); Love v. Love, 2011 Pa. Sup. 268 (Dec. 14, 2011); Younis v. Farooqi, 597 F. Supp. 2d 552 (D. Md. 2009); Moody v. Sorokina, 830 N.Y.S. 2d 399 (N.Y. App. Div. 2007). These courts point to the statute and the specified ways that the affidavit terminates. They conclude that the sponsored immigrant’s failure to mitigate damages is not one that would excuse the sponsor. The duty to support the sponsored immigrant is defined by statute and federal common law; courts neither found common law that would impose a mandatory job search nor wanted to create such law.

4. Prenuptial agreement?

   Can the sponsor dispense with the affidavit of support requirements through a prenuptial agreement? Most courts have soundly rejected this as an option. See e.g., Erler v. Erler, 824 F.3d 1173 (9th Cir. 2016); Toure-Davis v. Davis, WGC-13-916, 2015 WL 2924344 (D.C. Md. June 23, 2015); Shah v. Shah, No. 12-4648 (BBK/KMW), 2014 WL 185914 (D. N.J. Jan. 14, 2014); Al-Mansour v. Shraim, No. CCB-10-1729, 2011 WL 345876 (D. Md. Feb. 2, 2011). They found that the affidavit of support, which is signed after the prenuptial agreement and the marriage, requires the sponsor to support the sponsored immigrant regardless of divorce or separation. A couple courts, however, have upheld the prenuptial agreement when it specifically mentioned the affidavit of support and the intending immigrant surrendered the right to enforce it. Blain v. Herrell, No. 10-72 ACK-KSC, 2010 WL 2900432 (D. Haw. July 21, 2010); Younis v. Farooqi, 587 F. Supp. 2d 522 (D. Md. 2009).

5. The immigrant has naturalized or earned 40 qualifying quarters.

   These are strong defenses and should be asserted. But there is no requirement that the sponsored immigrant, or any federal agency, notify the sponsor when either of those conditions has been satisfied. In other words, there appears to be no easy way for the sponsor to learn when his or her obligations or liability under Form I-864 have ended. Information regarding the Social Security earnings record of the sponsored immigrant, or of his or her new spouse or parent, which is on file with the federal agency, is protected by the Privacy Act. Comparable information regarding the sponsored immigrant’s naturalization may be similarly blocked. While USCIS provides automated information to agencies and entities that facilitates their enforcement of the sponsor’s obligation to reimburse the cost of means-tested programs, there is no equivalent exchange of information to a sponsor defending against maintenance actions brought by the sponsored immigrant.

6. The sponsored immigrant is receiving other income that should reduce my obligation.

   To what extent can the sponsor’s obligation to maintain the immigrant at 125 percent of FPG be reduced by any income the immigrant receives? The statute implies that the sponsored immigrant’s income can be taken into consideration to reduce the financial obligation. The sponsor is required only to maintain the immigrant at 125 percent of FPG. If the immigrant already earns at least that amount, then the sponsor has no duty to provide any additional financial support. In the example where Roberta petitioned Alex who has now immigrated, if he works and earns an annual income of at least $18,225, Roberta owes him nothing for 2023. If Alex works and earns only $10,000, Roberta must provide maintenance equivalent to $8,225 ($18,225-10,000).

   What if Alex is not working, but moved in with his parents who are providing him with free room and board? Can Roberta put a value on this “in-kind” income and be able to reduce her support requirement? After all, when the couple resided together, she was required only to maintain him at a certain level; she was not required to give him a monthly cash allowance. Alex could assert his rights under the contract only after the parties separated. Why should Roberta have to be provide financial support when someone else is now maintaining Alex to the same extent that she was prior to their separation?

   Several courts have looked at this issue and analyzed how they should define the term “income” when applied to the sponsored immigrant. Should it be limited to “federally taxable income” — which is how the term is defined in determining if an individual has the necessary means to sponsor someone? 8 CFR § 213a.1. For example, when Roberta executed the I-864 on behalf of Alex, she was allowed to include only her taxable income when estimating her “current individual annual income.” Or should it include any and all income and benefits that the sponsored immigrant has received, including in-kind income? If the latter, these could include any cash payments, property, services, gifts, educational grants and scholarships, housing subsidies, awards of alimony, or spousal support in a state court proceeding, and constructively received income, such as payments to third parties on the immigrant’s behalf that the immigrant would otherwise have had to pay directly. Two courts have applied such an expansive definition. Anderson v. Anderson, 2019 WL 5692193 (W.D. Wash. 2019); Erler v. Erler (Erler II), 798 F. App'x 150 (9th Cir. 2020) (unpublished memorandum).

   Most of the courts that ruled on this issue, however, have given deference to the definition in the regulations as it concerns the sponsor, applied a narrow construction, and limited the term to federally taxable income. See, e.g., Asilonu v. Okeiyi, --- F. Supp.3d ---, 2023 WL 3456721 (M.D. N.C. 2023); Flores v. Flores, 590 F. Supp. 3d at 1382; Sultana v. Hossain, 575 F. Supp. 3d 696, 699 (N.D. Tex. 2021); Fukita v.Gist, No. 20-CV-1869, 2021 WL 288121, at *5 (D. Minn. Jan. 28, 2021); Villars, 336 P.3d at 712–13; Love v. Love, 33 A.3d 1268, 1277 & n.7 (Pa. Super. Ct. 2011). They have not considered gifts, supplements, agreements, judgments, and other in-kind benefits as part of a sponsored immigrant's income. Nor have they considered loans that sponsored immigrant will have to pay back, such as cash advances on a credit card or student loans. Scholarships and grants are not income to the extent they do not exceed the plaintiff's qualified education expenses.

   One court specifically held that the income of a family member residing with the sponsored immigrant cannot be considered if the person was not also sponsored. Erler v. Erler, 824 F.3d 1173 (9th Cir. 2016). Another court spelled out the types of income that could be considered and those that could not. For example, property division from divorce settlement agreements are not considered income, while the value of affordable housing subsidies and student Pell grants are. Shumye v. Felleke, 555 F. Supp. 2d. 1020 (N.D. Ca. 2008).

   It is unlikely that the sponsor would be credited with any in-kind benefits that the sponsored immigrant has been receiving. Based on the majority of court rulings, these would not satisfy the definition of federal taxable income. So, in the example where Alex is now residing with his parents, Roberta would not be able to satisfy or reduce the maintenance requirement by including the value of the housing, food, or clothes Alex’s parents are providing. But see Toure-Davis v. Davis, WGC-13-916, 2015 WL 2924344 (D.C. Md. June 23, 2015).

7. Bankruptcy?

   The general rule is that all debts, unless specifically exempted by federal statute, are dischargeable in bankruptcy. The exceptions provision of the U.S. Bankruptcy Code does not appear to prohibit the discharge of the types of debts envisioned by the affidavit of support process. However, the U.S. Bankruptcy Appellate Panel of the First Circuit has held that an affidavit of support, when determined to be a domestic support obligation under 11 U.S. Code §523(a)(5), is not dischargeable. In re Schwartz, 409 B.R. 240 (B.A.P. 1st Cir. 2008). That principle was later affirmed by a U.S. Bankruptcy Court in Florida. Hrachova v. Cook (In re Cook), 473 B.R. 468 (Bankr. M.D. Fla. 2012).

Conclusion

As indicated, the case law that has been developed to date has almost always involved an enforcement action brought by an ex-spouse against the sponsor. This mirrors the other actions that have been threatened or brought and then settled without any court decision. Most sponsors elect to pay a fixed amount, either as a lump sum or under an installment plan, rather than face continued enforcement actions for the duration of the contract. Given the few defenses allowable under the law, the sponsor’s unlimited exposure, and the right of the sponsored immigrant’s attorney to be awarded attorney’s fees, this would be a wise choice.

The question is whether practitioners should be explaining all of this to clients before they sign the I-864 or I-864A. Such a discussion becomes more complicated when — in most cases — the practitioner is also representing the intending immigrant whose case depends on the sponsor’s or joint sponsor’s executing the form. Some practitioners have concluded that their clients’ interests might diverge at this point and on this issue and that ethical rules require separate counsel. What do you think?