Seguritan US Immigration Articles

Enforceability of Affidavit of Support

Most family-based applicants for immigrant visa or adjustment of status are required to submit an affidavit of support (Form I-864) to guarantee that they will not become a public charge.

The affidavit must be completed by the U.S. citizen or lawful permanent resident who filed the relative (Form I-130) petition. The petitioner-sponsor must demonstrate that his/her income is at least 125% of the current federal poverty guidelines for his/her household size.

If the sponsor’s income is not sufficient to meet the requirement, the income of the spouse and/or other relatives living with him may be used. The income of unrelated dependents listed on the tax returns may also be included regardless of where they reside. The intending immigrant’s income may also be added to meet the requirement.

If the petitioner falls short of the requirement, a joint sponsor may submit a Form I-864. A joint sponsor must be a U.S. citizen or lawful permanent resident who is at least 18 years old and domiciled in the U.S. or its territories. A joint sponsor does not have to be related to the petitioner or the intending immigrant.

Substitute sponsors are also allowed if the original I-130 petitioner has died and the petition is allowed to continue. Under a recent law, surviving relatives of an I-130 petitioner may process their green card applications provided they were here in the U.S. at the time of the death of the petitioner and they continue to reside in the U.S.

A substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years old, son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian. Such relative must be a U.S. citizen or a lawful permanent resident.

Executing the I-864 affidavit of support should not be taken lightly as it is a legally binding contract once the sponsored alien becomes a lawful permanent resident. It may be enforced against the sponsor and/or joint sponsor by a federal state or local governmental agency or by the sponsored immigrant.

If the sponsored immigrant receives means-tested benefits after he/she gets the green card, the government agency that gave the benefits may sue the sponsor to recover the funds given to the immigrant. The said sponsored immigrant who receives means-tested public assistance may be subject to removal proceedings.

Under the law, the sponsored immigrant also has the right to enforce his/her sponsor’s obligations. This could happen in a divorce proceedings. Even if the immigrant cannot be granted alimony, she may be entitled to support from the sponsoring spouse under the terms of the affidavit of support.

The sponsor’s obligation under the affidavit of support continues until the sponsored immigrant becomes a citizen or until he/she accumulates 40 qualifying quarters of work under the Social Security law or until he/she abandons permanent resident status and leaves the U.S.

Death of either the sponsor or the immigrant also extinguishes the obligations. But a divorce is not a ground to end the obligation.

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