Creates the Opportunity for Additional Support Payments
The Immigration and Nationality Act ("INA") provides, with a few exceptions, a sponsor of an immigrant admitted to the United States must execute a Form I-864 Affidavit of Support. This form may be downloaded at no charge at http://www.uscis.gov for your further review. Form I-864 is legally enforceable by the U.S. government and in many cases by the immigrant being sponsored. Through execution of the form, the sponsor agrees to provide support to maintain the sponsored relative at an annual income of not less than 125% of the Federal poverty line during the period in which the affidavit is enforceable. See 8 U.S.C. ? 1183a(a)(1).
Situations in which Execution of a Form I-864 Can Effect Family Support Matters
All courts considering the issue have held that, in accordance with the language in Form I-864, divorce does not terminate the sponsor's obligation. See, e.g., Cheshire v. Cheshire, 2006 WL 1208010 (M.D. Fla. 2006) (divorce does not invalidate affidavit of support); Iannuzzelli v. Lovett, 981 So. 2d 557 (Fla. Dist. Ct. App. 2008) (enforceability of affidavit of support survives divorce); Stump v. Stump, 2005 WL 1290658 (N.D. Ind. 2005) (former wife was entitled to enforce affidavit of support against former husband; wife was not required to receive means-tested benefits as a prerequisite to enforcement); Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008) (divorce does not terminate affidavit of support; affidavit may be enforced by immigrant wife); Younis v. Farooqi, 597 F. Supp. 2d 552 (D. Md. 2009) (divorce is not a condition under which sponsor's obligations arising from affidavit of support can be terminated); In re Marriage of Sandhu, 207 P.3d 1067 (Kan. Ct. App. 2009).
The Affidavit of Support is a Legally Enforceable Contract
The affidavit of support is a legally enforceable contract, which the immigrant spouse has standing to enforce in any federal or state court. In re Marriage of Sandhu, 207 .3d at 1071. Therefore, if one spouse has signed a Form I-864 in favor of the other, the immigrant spouse can argue a contracted right recover support in the amount of at least 125% of the federal poverty line, even under the extreme situation in which the sponsoring spouse could show no ability to pay the types of support ordinarily determined in divorce proceedings.
Limits to Enforcement in Divorce Proceedings
An immigrant spouse in such proceedings cannot "double dip" by receiving both payments under the affidavit of support and items like alimony and equitable distribution of property. As a general matter, "[a] sponsor's financial obligation under the affidavit of support should be reduced by the amount of income or benefits the sponsored immigrant receives from other sources." Cheshire, 2006 WL 1208010 at *6. The sponsor under an affidavit of support is required only to pay the difference between 125% of the Federal poverty line and the sponsored alien's own income, assets, and other sources of support. Naik v. Naik, 944 A.2d 713 (N.J. Super. Ct. App. Div. 2008). A sponsored immigrant is not entitled to enforce Form I-864 support payments in divorce proceedings, when she fails to establish that her income is below 125% of the federal poverty level. In re Marriage of Sandhu, 207 P.3d at 1071.
Offsets Considered Income.
Items such as grants received by the immigrant and subsidized housing are considered income to be offset against the 125% support level required to be paid under the affidavit. Shumye, 555 F. Supp. 2d at 1026. While some courts have held that child-support payments received by the sponsored spouse do not reduce the sponsoring spouse's obligations under the affidavit of support, see Younis, 597 F. Supp. 2d at 555 (purpose of child support is not to benefit sponsored spouse), others have reached the opposite conclusion. See In Naik, 944 A.2d at 717 (when the sponsor and sponsored immigrant are married, alimony, child support (if any), and equitable distribution of income-producing assets must be included in the sponsored immigrant's available support, so as to reduced the sponsor's obligations).
The Shumye Court
The Shumye court held that the husband's payment to the immigrant wife under a divorce settlement did not constitute income to be offset against the 125% support obligation, when a stipulation entered in the divorce proceedings provided specifically that the settlement was made without prejudice to the wife's claims arising out of the husband's sponsorship obligations. 555 F. Supp. 2d at 1025. It may, therefore, be possible to argue that, if the parties have not specifically stipulated that a divorce settlement is made without prejudice to the sponsorship obligation, the amount paid under a divorce settlement is income of the sponsored alien, so as to require an offset against the sponsor's support obligation.