Lifetime Help Obligation? Questions When Signing an Affidavit of Support
Published in Chicago Lawyer Magazine, February 2020
By Daniel Stefani
Whenever a U.S. citizen marries a foreign national, there always is the question of how to ensure the foreign national becomes a lawful permanent resident of the U.S. The marriage ceremony in and of itself does not elevate the foreign national’s status to a lawful permanent resident.
In such a situation, the citizen must sponsor his or her spouse as a condition precedent to immigration and thus becoming a lawful permanent resident. As part of this process, the citizen must execute a support affidavit as a requirement for sponsoring his or her spouse pursuant to the Immigration and Nationality Act.
By signing this affidavit, the sponsor contracts with the U.S. government to assume certain obligations the government could have to the foreign national once they become a lawful resident. This affidavit creates a binding contract between the citizen and the government. The intended immigrant is considered a third-party beneficiary. By signing, the citizen is required to provide the immigrant any support necessary to maintain them at an income that is at least 125% of the federal poverty guidelines for their household size.
The citizen’s obligations terminate only if the lawful resident becomes a U.S. citizen, has worked or can receive credit for 40 quarters of coverage under the Social Security Act, no longer has lawful permanent resident status and has departed the U.S. or the sponsor or lawful permanent resident dies. The citizen’s estate may owe any support that could have accumulated before death. The wrinkle is that divorce (as well as annulment or other legal processes) does not terminate the citizen’s obligations under the affidavit. Thus, signing this affidavit either before or after the marriage could have long-lasting implications.
The affidavit is not considered a prenuptial or post-nuptial agreement since the spouse is only a third-party beneficiary and the contract is between the sponsor and the U.S. government. As such, this contract is considered valid even though the citizen may not have had the benefit of counsel before signing and understanding the contract.
Also, if a federal, state, local or private agency provided any public benefit to the lawful permanent resident, that agency may file a cause of action against the citizen for reimbursement of the amount of benefits they provided. Additionally, if the citizen does not provide sufficient support to the permanent resident, he or she may sue the citizen for the support in either federal or state court in any jurisdiction.
The affidavit states that the sponsor agrees to “submit to the personal jurisdiction of any [f]ederal or [s]tate [c]ourt that has subject-matter jurisdiction of a lawsuit against the citizen or to enforce that citizen’s obligations under the [a]ffidavit.”
As such, the affidavit can be “legally enforceable against the sponsor by the sponsored alien” and the remedies included, but are not limited to, specific performance of the contract, payment of legal fees and other costs of collection and other remedies under state law. There have been several state court divorces where the divorcing sponsored alien spouse moves to enforce the support payment under the affidavit in divorce court. The obligations created by signing this affidavit could go well beyond what the state divorce laws require in terms of supporting a former spouse.
While the current federal poverty level for an individual is $12,490 per year, the amount of support required under the affidavit is probably not beyond the guidelines in most states for maintenance. However, the duration under the affidavit could potentially be for either the citizen’s or the immigrant’s lifetime, which for shorter-term marriages, goes beyond the guidelines in Illinois and most states. As an example, in Illinois, if the sponsor is divorced after 12 months of marriage, the duration of support, whatever the amount, would be 2.4 months. Under the affidavit, the sponsor would pay for the duration of his or her life or the lifetime of the sponsored alien spouse. Historically, there have been certain defenses asserted by the citizen. Several jurisdictions have allowed an offset against the citizen’s obligation if the foreign national has their own earnings or an earning capacity of at least 125% of the federal poverty guidelines and/or assets in the U.S.
If there is court-ordered spousal support or a distribution of marital assets in the divorce, certain states have recognized those as potential setoffs to the citizen’s obligation. The courts have also held that the foreign national has an obligation to make reasonable efforts to find employment and mitigate the damages that would be paid by the citizen. Another jurisdiction has held that the citizen’s child support obligation did not reduce his support obligation under the affidavit because the child support was intended to benefit the child.
When presented with signing this affidavit, the citizen should seek counsel as to the implications of signing this affidavit and the potential exposure if there is ever a divorce, especially if it is a short-term marriage.
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.