Can I enforce a form I-864 affidavit of support in divorce proceedings?

THE Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires that US Citizens sponsoring an alien for legal permanent residency execute an immigration form I-864 Affidavit of Support.  This is an agreement between the US Government and the Sponsor to promise to support the immigrant beneficiary seeking admission to the US at a level not less than 125% of the national poverty level. The purpose of the I-864 Affidavit is to prevent the noncitizen from becoming a public charge.  The sponsor’s obligation continues until either 1) the intended immigrant becomes 2) the intended immigrant is no longer permanent resident by departing the US or relinquishing his or her residency 3) the immigrant is subject to removal or deportation but applies for and obtains  anew adjustment of status based on a new affidavit of support 4) the intended immigrant or sponsor dies 5) the intended immigrant worked for 40 qualifying quarters under the Social Security Act.

The I-864 affidavit is legally binding and enforceable contract between the Sponsor and the US Government.  The enforceability even goes beyond this.  The sponsored immigrant spouse can also enforce this contract against the sponsor and file an action to enforce the sponsor’s support obligation separately from any support rights the sponsored immigrant spouse may have under Family Code Section 4320.  Erler v. Erler, 824 F.3d 1173 (9th Cir. 2016).  This obligation becomes an important issue where the marriage between the Sponsor and the immigrant beneficiary breaks down and a Divorce Petition is filed. The I-864 obligation does not terminate with divorce or dissolution of marriage. Pursuant to Erler, neither a divorce judgment nor a premarital agreement may terminate an obligation of support under the I-864 affidavit.  The obligation is not dischargeable even if the immigrant spouse is later supported by a third party or attempts to be self-sufficient.

Further if a Joint Sponsor also signed an I-864 affidavit, the Joint Sponsor is jointly and severally liable for the support of the immigrant spouse.

The immigrant spouse has an independent standing to enforce the obligation under the I-864 affidavit against the sponsor either in state court or federal court.  In re Marriage of Kumar, 13 Cal. App. 5th 1072 (2017). This means the sponsor’s support obligation under the I-864 affidavit may be enforced within the family law case/ divorce action. In addition, the Court in Kumar held that immigrant spouse has no duty to seek employment to mitigate his or her damages.  The bottom line is that in any divorce proceeding, one has to consider whether one spouse has signed an I-864 affidavit in the past for purposes of conferring a green card to the other spouse and whether that obligation continues on.  It may be a separate claim for support available to the immigrant spouse within the family law case.

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Please note that this article is not legal advice and is not intended as legal advice.  The article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C.  This article is not a solicitation.

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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist.  He was President of the Philippine American Bar Association.  He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association.  He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010.  Tel. (213) 388-1611 or e-mail kureyeslaw@gmail.com or visit our website at Kenreyeslaw.com.

Atty. Kenneth Reyes
Atty. Kenneth Reyes

Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@gmail.com or visit our website at Kenreyeslaw.com.

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