An interesting article, The Affidavit of Support Creates a Legally Enforceable Contract by the Sponsored Foreign National: Efforts to Collect Damages as Support Obligations Against Divorced Spouses, in the November/December, 2010 issue of The Federal Lawyer by John Pratt and Ira Kurzban, two Florida immigration attorneys, discusses the use and limitations of the affidavit of support (Form I-864) as a separate contractual basis for the liability of a U.S. citizen to support their sponsored immigrant, whether spouse or employee, on divorce, separation or termination of employment.
As Pratt and Kurzban point out, execution of the Form I-864 by a U.S. citizen sponsoring the immigration of a non-citizen into the United States creates a contract between the sponsor and the United States government for the benefit of the sponsored immigrant which is enforceable in any state or federal court to insure that the sponsor provides the sponsored immigrant with support necessary to maintain him or her at an income that is at least 125 percent of the federal poverty guidelines so long as the obligation lasts. In fact, the contractual obligation is for a term which ends only in the event the sponsored immigrant is naturalized or credited with or earns 40 qualifying quarters of employment (as defined under Social Security Law), or on the death of either the sponsor or the sponsored immigrant or on the abandonment of permanent resident status by the immigrant.
The article explains that the contractual basis for support it discusses is legally separate and distinct from issues of spousal support or alimony though amounts paid as spousal support may be applied towards satisfaction of the contractual obligation which I-864 creates.
The article discusses both federal and state court cases addressing the rights which the I-864 affidavit creates and possible defenses to the assertion of such rights as well as the sponsored immigrant’s possible right to recover attorney fees and costs.
These are issues which any U.S. citizen who is thinking of sponsoring a foreign national for immigration into the United States should carefully consider before signing Form I-864 and which any such sponsored immigrant, with the help of their attorney, should not overlook if their relationship with their sponsor falls apart.