• Affidavit of Support: immigration laws and divorce laws
  • January 18, 2013
  • Law Firm: Brad M. Micklin Esq. Counsellor at Law L.L.C. - Nutley Office
  • Immigration laws and divorce laws often overlap when it comes to Affidavits of Support.  Affidavits of Support are support agreements a person signs when sponsoring another for citizenship.  The basic purpose is to assure the government that the person being sponsored will not become a public charge or, in other words, need to be supported by the state or federal government.  As such, the sponsor will sign an Affidavit of Support, Form I-134.  

    Form I-134 is the form for an Affidavit of Support. This form is required with all K nonimmigrant visa applications. K visas are for the fiancé(e)s (K-1), children of fiancé(e)s (K-2), and spouses (K-3) of U.S. citizens when the applicant intends to travel to the United States and adjust status to green card holder (or permanent residence).

    United States immigration law may deny a visa or green card application if the applicant may become financially incapable of supporting oneself. As such, it is required that most visa or green card applicants have a U.S. citizen or permanent resident sponsor. The sponsor, who is usually the petitioning relative of the applicant, must file an Affidavit of Support which signifies that the sponsor is financially responsible for the applicant. It is legally enforceable and valid until the applicant either becomes a U.S. citizen or can be credited with 40 quarters of work (approx. 10 years).

    In the matter of Naik v. Naik, 399 N.J. Super. 390 (App. Div. 2008). The parties had an arranged marriage. Id. at 392. The husband moved back to New Jersey after the wedding and the wife joined him fifteen (15) months later. The husband signed an Affidavit of Support. Id.The parties resided together sharing a bed. Id. at 393. The wife alleges they never consummated the marriage. Id. Three months later the parties lived in separate years and there after the wife moved out. Id. The parties divorced, with the wife getting pendente lite support of $200 per week during same. Id. The court did not award alimony based on the short term marriage, young age of the parties and the fact that both parties were well educated. Id.The wife appealed and the court found that these agreements are enforceable in New Jersey and may be heard in the Superior Court of New Jersey. Id. at 397-98. Furthermore, where it is between spouses, the Family Part should enforce the agreement. Id. at 398.

    In summary, the Naik court held that Form I-846EZ is a legally enforceable contract "against the sponsor by the sponsored alien" and that an action to enforce the contract can be brought "against the sponsor in any appropriate court." Moreover, the Appellate Division held that the sponsor is not automatically required to support the sponsored immigrant at 125% of the federal poverty guidelines for the appropriate family unit size. Rather, the sponsor's obligation is to pay any deficiency needed to reach the 125% level once the sponsored immigrant's own income, assets and other sources of support are accounted for.            

    According to this decision, a party does not have to support their ex-spouse beyond 125% of the federal poverty guidelines for their appropriate family size and must only pay the deficiency in order to meet the minimum floor. Id. at 398. The sponsored immigrant is expected to engage in gainful employment, commensurate with his or her education, skills training and ability to work in accordance with the common law duty to mitigate damages. Id. When the sponsor and sponsored immigrant are married, alimony, child support, and equitable distribution of income-producing assets must be included in the sponsored immigrant’s available support. Id. Thus, the Affidavit of Support is not enforceable if the sponsored immigrant’s income meets or exceeds the 125% poverty level.            

    According to 8 U.S.C. 1183a(a)(1), a U.S. citizen remains financially liable for support, until the sponsored immigrant:

    1.     becomes a U.S. citizen;

    2.     is credited with 40 qualifying quarters of work in the U.S, usually 10 years;

    3.     ceases to be a lawful permanent resident and departs the U.S.; or

    4.     dies.

    The following are possible defenses against enforcement actions brought by sponsored immigrants:           

    a. Ambiguity. While the statute and regulations may be clear, the Affidavit of Support itself is ambiguous as to the sponsor’s obligation to maintain the sponsored alien. It is the language in the I-864 that determines whether it is an enforceable contract, not what is contained in the statute and regulations. Most of the form’s ten pages relate to instructions on how to complete it, and most of the contractual language refers to the sponsor’s obligations to reimburse the government for benefits received by the sponsor. Even the few places that mention the sponsor’s promise to maintain the alien could be interpreted as a promise to ensure that he or she does not obtain these benefits. There was a reasonable misunderstanding among the parties over key aspects of the affidavit.            

    b. Vagueness. The contract is void for vagueness, since one of the key terms the duration or term of the contract is too indefinite. In fact, it is telling that the I-864 never uses the term “contract,” but rather the term “affidavit of support.” The affidavit only terminates when one of five events happen. Decades could pass before one of the parties dies or the sponsored alien naturalizes, abandons LPR status, or acquires 40 qualifying quarters. All of these conditions are outside the control of the sponsor. Another key term is the amount of potential liability is also left wide open. For the contract to be enforceable, the sponsor should be able to at least estimate the limit of his or her liability. Given that the sponsor is required to reimburse the government for any means-tested benefits received by the sponsored alien, including Medicaid, and the alien is capable of running up tremendous medical expenses, the sponsor is incapable of predicting the amount of potential liability. The benefits reimbursement provision could potentially force the sponsor to expend far more money than he needed to evidence in order to qualify as a sponsor.            

    c. Lack of Consideration. There is a lack of consideration. The sponsor’s promise to support the intending immigrant was a gift, which is unenforceable. Furthermore, the sponsor executed the affidavit only because without the Affidavit of Support the alien would be found inadmissible under INA § 212(a)(4). But consular and INS officials still retain the discretion to deny the application and find the intending alien likely to become a public charge, even when a satisfactory affidavit is submitted. Hence, the sponsor is receiving little in return for executing the document.            

    d. The Affidavit is an Adhesion Contract. The Affidavit of Support is an adhesion contract, since the parties (the government and the sponsor) are in disparately unequal bargaining positions. The sponsor has no choice but to sign the affidavit if he or she wants the alien family member to reside lawfully in the United States. Faced with the possibility of permanent separation from a spouse or child, the sponsor has no option but to sign the form.            

    e. The Intent of the Sponsored Alien. The sponsored alien never intended to enter into a lasting marital relationship, but was merely using the sponsor to gain immigrant status. If the sponsor can show that the alien committed fraud, this is a complete defense to any future liability.

    The important thing to take from this article is that they are enforceable.  Although there are many defenses and adjustments, the sponsor may still need to provide support long after a divorce.  

    For any questions regarding this article, go to http://info.njdivorceattorney.net/ask-a-question/  and one of our experienced attorneys will answer your questions. 

    If you want to speak with an experienced attorney who is familiar with these areas of law, call us at 973-562-0100.  Our firm is concentrated in family law and estate planning case. 

    Good luck.

    Brad M. Micklin, Esq.

    The Micklin Law Group

    187 Washington Ave., Suite 2F

    Nutley, NJ 07110

    973-562-0100

    [email protected]

    www.micklinlawgroup.com