Persons who act as sponsors of immigrants seeking adjustment of status or immigrant visas assume “joint [in the case of multiple sponsors] and several liability” in becoming sponsors. This means that the sponsor is responsible for maintaining the sponsored immigrant above the federal poverty line, and is also responsible for repayment of any means-tested public benefits that the sponsored immigrant obtains. This article will explain the concept of sponsor liability after a Form I-864, Affidavit of Support, is approved, factors that trigger liability, and scenarios in which a sponsor may be subject to litigation and penalties for failing to satisfy his or her responsibilities as a sponsor.
To learn more about the process for becoming a sponsor, please read our detailed overview of the eligibility requirements for sponsorship.
Once approved, the Form I-864, Affidavit of Support is a contract enforceable against the sponsor at the time the sponsored person acquires permanent residence.1 The contract is enforceable until the sponsored immigrant is:
- naturalized; or
- no longer a lawful permanent resident (LPR) and departs the United States; or
- obtains a new grant of adjustment of status in a removal proceeding; or
- has earned or been credited with 40 qualifying quarters under Title II of the Social Security Act; or
Qualifying quarters under the Social Security act do not include periods when the sponsored immigrant obtained means-tested public benefits.3 The contract may be enforced against the sponsor by the sponsored immigrant, by local, state, or federal government, or by any agency that is providing the sponsored immigrant an applicable means tested public benefit while the contract is enforceable, and within 10 years of the sponsored immigrant first receiving a means-tested public benefit.4 During the period in which the sponsor is liable, he or she must report any changes of address or be subject to a fine ranging from $250 to $5,000.5
For the purpose of sponsor liability to repay the government for benefits allocated to the sponsored immigrant, the following means-tested public benefits and means-tested benefits are applicable:
- Supplemental Security Income (SSI);
- Temporary Assistance to Needy Families (TANF);6
- State means-tested public benefits.7
The federal government and state authorities may determine what qualifies as a “means-tested public benefit.” For purpose of sponsor liability, a sponsor is not liable for repayment of any benefit allocated to the sponsored immigrant unless the benefit was designated as a “means-tested public benefit” at the time the sponsored immigrant obtained it.8 It is important for sponsors to stay abreast of any changes regarding means-tested public benefits
Certain benefits that are explicitly exempt from repayment are:
- Emergency medical care;
- Short term (non-cash in kind) emergency disaster relief;
- Benefits under the National School Lunch Act and similar state and local programs, benefits under Food Stamps;
- Child Nutrition Act of 1966 and similar state and local programs;
- Supplemental Nutrition Program for Women, Infants, and Children (WIC);
- Public assistance for immunizations and for testing and treatment of communicable diseases;
- Children's Health Insurance Program (CHIP);
- Payment for foster care or adoption services;
- Assistance authorized by the Attorney General;
- Student assistance under Titles IV, V, IX, and X of the Higher Education Assistance Act of 1965, and Titles IV, VII, and VIII of the Public Health Service Act;
- Benefits under the Head Start Act;
- Benefits under means-tested programs under the Elementary and Secondary Education Act of 1965;
- Benefits under the Job Training Partnership Act.9
Benefits from programs run by the Department Housing and Urban Development (HUD) are also not subject to repayment.10
To learn more about means-tested public benefits with regard to the concept of “public charge,” please see our article on the subject.
Sponsored immigrants may sue their sponsor(s) if the sponsor(s) fails to support the sponsored immigrant and his or her family at 125 percent of the federal poverty guideline during the period in which the affidavit of support is in effect.11 For purpose of sponsor liability to the sponsored immigrant, the affidavit is considered to come into effect on the date the sponsored immigrant is granted an immigrant visa or adjustment of status.12 The obligation continues until the sponsored immigrant “[is naturalized], can be credited with 40 quarters of work, [departs] the United States permanently, or dies.”13
Courts have found that a former spouse sponsored by the ex-spouse may successfully sue the sponsor for failing to live up to the terms of affidavit of support.14 However, comments on regulations note that in a divorce settlement, a sponsored immigrant may waive his or her right to seek enforcement of the Form I-864 against the sponsor.15
The calculation of damages against a sponsor is based on whether the sponsored immigrant's income reached the 125 percent threshold and if not, by what amount.16 One court has held that the income must be assessed year-by-year, and consequently that a sponsor may not use the aggregate income of the sponsored immigrant over multiple years to demonstrate that the 125 percent threshold has been met.17
If a sponsor is sued by the sponsored immigrant, he or she may argue that his or her sponsorship obligations were mitigated or offset by certain benefits that the sponsored immigrant received.18 The success or failure of this defense will depend on the specific facts of the case and the benefits that the sponsored immigrant received.
Before filing an affidavit of support, it is very important that prospective sponsors study the obligations that its approval entails. Prospective sponsors are well-advised to consult with an experienced immigration attorney to gain a full understanding of the obligations of sponsorship. After understanding the terms of the contract, the sponsor should consider the circumstances of the immigrant who he or she seeks to sponsor, and his or her own current and long-term financial prospects, before deciding whether he or she will be able to fulfill the responsibilities of sponsorship. The affidavit of support is a fully enforceable contract, and a sponsor may be liable to uphold the terms of the contract for many years.
Sponsors should stay up to date on which benefits qualify as means-tested public benefits for which he or she would be responsible for reimbursing the government in the event that the sponsored immigrant receives such benefits.
If a sponsor is sued by a sponsored immigrant, he or she should consult with an experienced immigration attorney for guidance on whether or not his or her sponsorship obligations may have been mitigated or offset by a benefit that the sponsored immigrant received, or whether there were circumstances specific to the case that may have altered his or her sponsor liability. Sponsored immigrants who believe that a sponsor has not upheld the contract that they entered into should also consult with an experienced immigration attorney to look at the facts and determine whether there is a compelling case that the sponsor failed to live up to the responsibilities of sponsorship. An experienced immigration attorney will always be up to date on the latest case-law, regulations, and agency guidance regarding sponsor liability.
- I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. (ALIA Publications 14th ed. 2014) 80, citing; 8 C.F.R. § 213a.180, citing; INA § 213A(a)l 8 C.F.R. § 213a.2(d); 71 FR 35732, 35740 (June 21, 2006)
- Kurzban 80, citing 8 C.F.R. § 213a.2(e)(2)(i)
- Kurzban 80, citing 8 C.F.R. § 213a.2(e)(2)(i); 71 FR 35732, 35742 (June 21, 2006).
- Kurzban 80, citing INA § 213A(d)
- Kurzban 80-81, citing 62 FR 45265, 45284 (Aug. 26, 1997)
- Kurzban 81, citing 8 C.F.R. § 213a.4(b)
- 8 C.F.R. § 213a.4(b)
- Kurzban 81, citing for the entire list, 9 FAM 40.41 N2.2; Cable, DOS, 97-State 228462 (Dec. 6, 1887), reprinted in 74 No. 47 Interpreter Releases 1,889-94 (Dec. 15, 1997).
- Kurzban 81, citing 65 FR 4994 (Aug 21, 2000)
- Kurzban 81, citing INA § 213A(a)(1)(A)
- Kurzban 81, citing 8 C.F.R. § 213a.2(e); 71 FR 35732, 35740 (June 21, 2006)
- Kurzban 81, citing Part 7 of the Form I-864
- Kurzban 81, citing Wenfang Liu v. Mund 686 F. 3d 418 (7th Cir. 2012) [former spouse of principal sponsored immigrant has no obligation to mitigate damages]; Shumye v. Felleke, 555 F. Supp.2d 1020 (N.D. Cal. 2008); Naik v Naik, No A-6270-05T5 (N.J. Super. Apr. 14, 2008) [I-864EZ is a legally enforceable contract, but there is a set-off for spousal and child support and equitable distribution]; Cheshire v Cheshire, No. 3:05-CV-00453-TJC-MCR, 2006, WL 1208010 (M.D. Fla. May 4, 2006) [under INA § 213A(a)(1), sponsor has obligation to support his former wife]; Stump v Stump, No. 1:04-CV-253-TS, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005) [sponsor forced to pay former spouse support at 125% of federal poverty guidelines]
- Kurzban 81, citing 71 FR 35732 (June 21, 2006)
- Kurzban 82
- Id., citing Shumye v. Felleke, 55 F.Supp.2d 1020, 1024-25 (N.D. Cal. 2008) [must look at each year separately to determine whether affidavit was enforceable in each year]
- Kurzban 82, citing Shumye v. Felleke, 55 F.Supp.2d 1020, 1024-25 (N.D. Cal. 2008) [student grants and housing subsidies are set-offs, but student loans and divorce settlement over community property are not]; Stump v Stump, No. 1:04-CV-253-TS, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005) at *7 [mitigation and set-off may be deducted]; Youinis v. Farooqui, 597 F.Supp.2d 552 (D. Md. 2009) [child support is not a set-off, but sponsored immigrant had an obligation to make reasonable efforts to find employment in order to mitigate damages]
RESOURCES AND MATERIALS:
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 80-82, Print. Treatises & Primers.