Affidavit of Support (Part 2)

What is the nature of the Affidavit of Support? Is it just a mere piece of paper with the sponsor’s guarantee to support the sponsored immigrant? Or is it a legally binding contract that is enforceable by the sponsored immigrant against the sponsor?

Let us take the case of Tony who signed an Affidavit of Support together with the Adjustment of Status application of Linda, his wife. A year after their marriage, they found themselves fighting against each other in divorce proceedings. Linda sued Tony before the federal court under the terms of the Affidavit of Support he previously signed.

In its decision, the federal court sided in Linda’s favor and awarded her monetary damages calculated from the day of their separation until the date of the court’s decision. It held the sponsor to be liable under the terms of the Affidavit of Support and that he is obligated to support Linda at 125 percent of the poverty income level until such contract is terminated. Keep in mind that in this case, the federal court made a definitive ruling that the AOS is a legally enforceable contract that can be brought by the sponsored immigrant against the sponsor. This is in addition to grants of similar action of enforceability against the sponsor by state courts in determining spousal support and government agencies which provided the sponsored immigrant with means tested benefits.

What is ironic in this scenario is that the AOS can still be enforced even if the parties have already been divorced. In short, even if the sponsor and the sponsored immigrant are no longer husband and wife and no longer living together and probably in most cases have just finished an acrimonious divorce proceeding, the sponsor is still obligated to support the immigrant. Only in very specific situations when the obligation by the sponsor under the terms of the AOS are terminated. And these are when the sponsored immigrant dies; becomes a US citizen; has been credited with 40 qualifying quarters under the social security (which is a minimum of 10 years of working) or when the sponsored immigrant abandons her lawful permanent status and leaves the US.

You may ask, is this not unfair? What if the sponsor was just used by the sponsored immigrant who did not actually intend to maintain the marital relationship but only to obtain a greencard? Yes, that may be a valid point but it would only be just a defense by the sponsor against the enforcement case filed against him. He could still be sued.

Thus, if you are petitioning someone or another sponsor asks you to co-sponsor an immigrant, treat the I-864, Affidavit of Support as a legal document that has some serious legal consequences. Make sure you are aware that such document could be enforced against you and that you are ready, willing, and able to comply with the terms of the contract.