VIDEO: Contractual obligations of sponsor signing affidavit of support may be enforced

I am Jim Hacking, Immigration Attorney, practicing law here in St. Louis, Missouri.

I want to tell you about an important new case that was recently handed down by a Federal Court in California that addresses the affidavit of support.

What is the affidavit of support? This is the form that a US citizen sponsor files with a Green Card application, to promise to support the non-citizen at at least 125% of the federal poverty guidelines, in the event that the marriage based visa is approved. So, typically, when a citizen wants to sponsor their wife, or their husband, to come to the United States, they have to make a promise to the government to support the non-citizen at at least 125% of the poverty guidelines, and there’s an amount … a mathematical calculation that’s done to support that, and you have to submit that, otherwise the Green Card application isn’t going to be approved.

We’ve seen over the years. Some litigation regarding the affidavit of support, and this case allows us an insight into the way Federal judges would treat claims that an individual is not supporting their spouse, pursuant to the affidavit of support, by contract, because, ultimately, they affidavit of support is a contract between the Federal Government and the citizen’s spouse. They don’t want the people coming to the United States getting on the government dole, or getting government benefits. They want to make sure that is we’re going to allow this person to come into the country, and get a Green Card, that the US citizen takes care of them.

In this case, it was a second marriage. The couple was from Turkey, and the individual US citizen filled out the affidavit of support as part of the visa process. Interestingly, the couple had entered into a pre-nuptial agreement and the pre-nuptial agreement said that if the marriage went south, and the couple decided to part their ways, that the US citizen would provide no support. In fact, it said that they wouldn’t provide any financial support to each other.

So, the couple got the visa. The wife came to the United States. she got her Green Card, and it was a Conditional Green Card, because if you’ve been married less than 2 years, you don’t get a permanent Permanent Green Card. You get a Conditional Permanent Green Card, which means that after 2 years, you have to go back to the Immigration Service to demonstrate that you’re still married, and, show that it’s a bona fide marriage.

In this case, the couple didn’t make it 2 years. They ended up getting divorced, and the man never appeared to help get the conditions removed on the Green Card application. The divorce was final, pursuant to the pre-nuptial agreement. The State Court said that the man did not have to provide any financial support to his wife from Turkey, and the wife, not happy with that result, filed a law suit in Federal Court seeking to compel the man to pay around $25,000 to her for back support, as promised in the affidavit of support. We’ve seen this tired in the past. It doesn’t usually work, but we do have a lot of questions about the affidavit of support, and people want to know if these kinds of law suits work. In this particular case, it didn’t work.

Here’s why. The US citizen had a lot of arguments as to why the law suit should, be dismissed, and, she should not … that he should not have to pay support pursuant to the affidavit of support to his wife. One argument that he made was the pre-nuptial agreement. He said, “While the pre-nuptial agreement prohibits me from paying any support, so I don’t have to pay the affidavit of support.” The court rejected that argument. They said that, “Just because you have a separate agreement with your wife, and that you entered into that pre-nuptial agreement before the marriage, that does not mean that the Federal Government can’t enforce your obligations upon you”, so that argument lost.

The next argument that the man made was that, “Because we got divorced, my obligations are terminated.” The court quickly rejected that, noting that the affidavit of support form itself says that divorce does not cancel the obligations that the US citizen sponsor has, under the affidavit of support, so the second argument was a loser as well.

The third argument was, “I didn’t attend the Conditional Green Card interview, and she’s in deportation proceedings, because she doesn’t have a way to be here, and so I don’t have any obligations because she no longer has a Green Card.” The court rejected this argument as well, finding that just not participating in the Conditional Permanent Residence, lifting of those restrictions, that that didn’t of itself relieve the US citizen of the obligations under the affidavit of support.

So, the first 3 arguments, the man lost. Interestingly, this man did not have an attorney. It must’ve been a terrible fight in front of this Federal judge. I’m sure the Federal judge, and his, or her, law clerks hated this case, but in any event, the court did rule that on the fourth argument, that the man, who had filed the affidavit of support was correct.

Here’s what he said: “The woman had been living with her son, and her son made about $3,500 a month, and her son had been supporting her the entire time, and the court said that the … in calculating the 125% of the poverty guidelines, that they had to take into account the support that the lady was receiving from her son, and so, because of that, the man was relieved of his obligations, because she had been receiving support at 125% of the poverty guidelines, and that is what the court held.

They denied summary judgment in favor of the wife, and the court suggested that it would grant summary judgment is the husband asked for it. Federal judges don’t spend much time in family law in divorces in dealing with these kinds of issues. I’m sure they didn’t like this case, but it is instructive that a court will look at every nook and cranny, trying to figure out if they should force a US citizen to fulfil their obligations under the affidavit of support, and it’s important for people considering signing an affidavit of support. The Federal Government takes these obligations very seriously. It looks like you can be held responsible for these promises that you make, and so you have to be really be careful in deciding whether or not to sign an affidavit of support. You should ask yourself, “Do I trust the person … and if this is going to become a problem for me?”, and you really have to think it through in deciding whether or not to sign an affidavit of support.

If you have any questions about this case, we’d be happy to walk you through it. If you’re wondering about your obligations, as the signer of an affidavit of support, we’d be happy to talk it through with you. Feel free to give is a call: 314 961 8200, or you can email me, jim@hackinglawpractice.com.