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Affidavit of Support
Dealing with Sponsor Liability:
IMPORTANT: This document is for information purposes. It should not be used as legal advice. It is also important to understand that the provisions of the new law are undergoing a process of interpretation and re-interpretation, and today's interpretation may be history tomorrow. The information in this flyer is limited to the form I-864 affidavit of support.
What is the Affidavit of Support required under the 1996 law?
Under this act all aliens applying for permanent residence on the basis of a family-based petition must file an Affidavit of Support, Form I-864. The law provides that it constitutes a legally enforceable contract on the part of the sponsor to support the alien at 125% of the current federal poverty guideline.
What are the risks to the sponsor?
- The alien can sue the sponsor for support at 125% of the poverty level.
- A federal, state or other agency can sue the sponsor to enforce the contract.
- Depending on the circumstances, the obligation could extend to perpetuity.
When does the sponsor's liability end?
- Upon death of the sponsor.
- Upon naturalization of the alien. (Alien is eligible to apply three years after getting permanent residence through a citizen spouse and five years in other cases.)
- The alien works for 40 qualifying quarters (ten years) or otherwise gets credit for 40 quarters.
- The alien leaves the U.S. and gives up permanent residence.
- The alien dies.
How enforceable is the affidavit?
The answer to this question at this time is that the enforceability of the affidavit/contract is legally questionable and it is likely to be some time before any kind of reliable answer to this question will be fashioned through the federal and state court decisions.
How can the sponsor minimize her or his exposure to liability under the contract?
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SAVE HARMLESS & INDEMNITY AGREEMENT
One way to achieve this is to have the alien sign what is known as a save harmless agreement in which the alien is obliged to pay back the sponsor if the sponsor has to reimburse a government agency or has to support the alien directly. To make this agreement effective some or all of the following provisions might be included in the save harmless agreement.
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A provision whereby the alien makes certain representations which might
result in his or her loss of permanent residence should it turn out that any
representation is not true. For example, if the alien represents that he or
she intends to seek naturalization as soon as eligible, which would terminate
the obligation of support, and the alien fails to do so, this might call into
question whether or not the alien made a fraudulent representation in order
to induce the sponsor to petition for him or her. Depending on all the circumstances,
this could result in a revocation of the alien's permanent residence.
This would be a powerful incentive to the alien to seek naturalization at the
earliest possible moment.
-
A provision specifying that the sponsor at all times retains the right
to render support in kind, such as food, clothing and lodging. This could make
it very unattractive, as opposed to cash, for the alien to sue for money damages.
-
A provision that in the event of divorce, the alien agrees to establish
a fund, by lump sum or installments, in trust, for the purpose of reimbursement
of the sponsor if the sponsor were required to pay support under the affidavit
of support. The funds would be released to the alien only if and when the support
obligation were terminated by naturalization, work for the required ten years,
or otherwise.
- The establishment of a trust at the time of the petition, to be funded by assets or expectancies of the alien, or by installments, for the sole purpose of indemnification of the sponsor, terminable upon the termination of the sponsor's liability for maintenance.
-
A provision whereby the alien makes certain representations which might
result in his or her loss of permanent residence should it turn out that any
representation is not true. For example, if the alien represents that he or
she intends to seek naturalization as soon as eligible, which would terminate
the obligation of support, and the alien fails to do so, this might call into
question whether or not the alien made a fraudulent representation in order
to induce the sponsor to petition for him or her. Depending on all the circumstances,
this could result in a revocation of the alien's permanent residence.
This would be a powerful incentive to the alien to seek naturalization at the
earliest possible moment.
-
A SECURITY AGREEMENT
- Another possibility would be a security agreement signed by the alien secured with all of his or her assets, present and future, for the satisfaction of any monies or other support suffered by the alien.
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INDEMNITY BY AGREEMENT WITH A JOINT SPONSOR
- Indemnification of a joint sponsor could be achieved along the same lines as the agreement between alien and sponsor. A joint sponsor might even require some form of lien on the alien's foreign assets or expectancies, with a provision for confession of judgment which would be enforceable in the alien's home country. The joint sponsor might also require an indemnification agreement by the alien's foreign relatives or friends.
Will the requirement of a supplemental save harmless agreement by the alien lead to family disharmony?
It should not. The alien should certainly be willing to do all that he or she can to protect the sponsor from possible liability. This should minimize any possible family strain rather than increase it. Further, such supplemental agreements should be viewed in the light of the fact that problems could arise through no fault of the alien. Therefore, there should be no implication of distrust involved.
What are the chances that a sponsor or joint sponsor may have to maintain the alien?
There are a number of factors to be evaluated:
- The legal infirmities of the affidavit of support which might result in it being effectively nullified by the courts.
- The chances that the particular alien might require support.
- The fact that the alien is not eligible for means tested public benefits for five years after the date they are admitted to permanent residence.
- The terms and conditions of any supplemental agreements by the alien.
- Written representations by the alien which might be interposed as affirmative defenses in the event the alien were to bring a civil action against the sponsor or joint sponsor.
- Written representations by the alien which would, if not true, put his or her permanent residence at risk.
What actions should a sponsor or co-sponsor consider before signing an affidavit of support?
- Get legal advice from an attorney who is independent from the attorney handling the immigration case for the alien.
- Get a suggested agreement from an immigration attorney and have it reviewed by his/her general attorney.
- Obtain a background check on the alien in the home country and in the United States.
SUMMARY
There is no foolproof way of eliminating all risk for a sponsor or co-sponsor. There are powerful ways to minimize the risk, especially the risk of fraud on the part of the alien, but also the risk that the alien may require assistance through no fault of his own. The extent of the minimization will vary with the circumstances of the alien, the sponsor, and the co-sponsor. Finally, a save harmless and indemnity agreement should serve not only to minimize the risk to the sponsor, but should sharply reduce the concerns of the sponsor over the potential liability.
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