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Affidavits of Support in Immigration Cases: Obligations of Sponsors are Wide-Reaching and May Outlast Divorce
08-22-2011

The requirement of providing an Affidavit of Support for sponsored immigrants stems from Section 212 of the Immigration and Nationality Act, which lists the classes of immigrants ineligible for admission into the United States. The most common grounds of inadmissibility are for those who have criminal convictions, prior violations of immigration laws, health-related issues, and present security risk to the United States. This statute also bars those who are likely to become a public charge from admission. The law further requires all petitioners of family-sponsored immigrants to execute an Affidavit of Support on behalf of the alien. Thus, in most situations, U.S. spouses, parents, children, brothers and sisters filing for their relatives to come to the United States have to execute an Affidavit of Support.

The purpose of the Affidavit is to demonstrate to the U.S. Government, that the sponsor will be able to support an alien at 125% of the federal poverty level. The mechanics of demonstrating this ability can be quite complicated and involve the use of income and/or assets, as well as co-sponsors or household members to demonstrate the proper level of income.

The traditional explanation for the use of the Affidavit is that if the immigrant applies for public assistance in the United States, the government may seek reimbursement from the sponsor. Enforcement of the Affidavit of Support has varied in Connecticut during the last several years and has included a moratorium on the use of the Affidavits, an active pursuit of reimbursement from sponsors, and provision of public benefits to immigrants if sponsors themselves qualify for public benefits. Most individuals do not think twice about executing an Affidavit of Support, reasoning that their loved ones are not likely to apply for public benefits. Sometimes, however, clients are hesitant in sponsoring their elderly parents because they are not eligible for publicly-funded medical assistance, are not likely to obtain employment with an employer-provided health insurance, and are not likely to afford an individual health insurance policy.

Most individuals understand that execution of the Affidavit of Support creates an enforceable contract between themselves and the U.S. government. However, under the law, if the sponsor fails to provide the required support, the sponsored alien may independently sue for enforcement.

An interesting situation arises in divorce cases. A divorce does not terminate the sponsorís support obligations under the Affidavit of Support. Under the law, these obligations terminate only when a sponsored alien can be credited with 40 quarters of coverage under the Social Security Act, which takes at least 10 years, or becomes a U.S. citizen which takes 3 years if the parties are still married or 5 years if they are divorced. The obligations also end when one of the parties dies or the sponsored alien leaves the country. So the issue is whether the divorcing alien may make a claim for alimony based on the sponsorís obligations under the Affidavit of Support. Connecticut courts are not inclined to award alimony for short-term marriages. Under Connecticut law, the length of the marriage is the very first listed factor for the court to consider when awarding alimony. However, a marriage of a U.S. citizen and an immigrant often involves parties in unequal positions. An immigrant spouse may have a limited earning capacity due to lack of knowledge of English or lack of employment skills needed in the U.S. In such circumstances at least a short-term award of alimony may be in order and existence of the Affidavit of Support may provide a justification for the trial court to do so.

Curiously, there is not much case law from Connecticut courts on this topic. In Muir v. Muir, 2002 WL 1837964, the court in rendering alimony and property distribution orders in a two-year marriage noted that while the plaintiff executed an Affidavit of Support on the defendantís behalf, his contractual obligations under the Affidavit were unaffected by the judgment.

In Hernandez v. Burgos, 2011 WL 782710, the plaintiff raised as an issue the fact that the defendant signed an Affidavit of Support. However, because the plaintiff did not claim that the trial court was bound by the federal form, the court declined to comment on its impact in the claim for alimony made by the plaintiff in the prayer for relief.

Several state courts throughout the country, however, have held that aliens can seek enforcement of Affidavits of Support in divorce proceedings. In Barnett v. Barnett, 238 P.3d 594 (Alaska 2010), the Supreme Court of Alaska addressed a situation where a sponsored alien was earning more than 125% of the federal poverty level. The trial court recognized the husbandís obligations under the Affidavit of Support but did not award any support to the wife determining that the sponsor is required to pay only the difference between the sponsored non-citizen's income and the 125% of poverty threshold. In an analogous situation, the Court of Appeals of Kansas affirmed the trial courtís decision not to award support payments to a wife whose income exceeded 150% of the federal poverty threshold. See In re Marriage of Sandhu, 41 Kan. App.2d 975, 207 P.3d 1067 (Kan. App. 2009).

Interestingly, there are significantly more support actions filed in federal district courts by alien ex-spouses. The most typical scenario is where the state court does not award alimony in a divorce proceeding. See, e.g., Shumye v. Felleke, 555 F. Supp.2d 1020 (N.D. Cal. 2008). Because the Affidavit of Support provides that it may be enforced in federal or state court, federal courts have jurisdiction over this matter. Moreover, under the law, the sponsor may also be liable for cost of collection, including attorneyís fees.

The 2011 federal poverty level for one person is $10,890 (except for those residing in Alaska and Hawaii, where it is higher), and 125% of this amount is $13,612.50. If the court orders alimony for this amount for a period of five years, a sponsor will be liable for an amount close to $70,000. This is definitely something to take into account when signing an Affidavit of Support.

For more information, please contact Attorney Joseph M. Tapper.

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