Financial support may be one of the crucial issues that arise when there is a breakdown of marital relationship between a U.S. citizen and a petitioned spouse. This is usually expected when the petitioned spouse is unemployed and has no other means of support. Consider the following case of Maria who sought spousal support from her sponsor.
Maria entered the United States on a fiancé visa. Her petitioner, Peter, married her upon her arrival in the United States and executed an I-864 or an Affidavit of Support as part of the application for green card of Maria. The spouses lived for one year and thereafter separated and filed for divorce.
Instead of seeking spousal support through the state family court, Maria was advised by her lawyer to file in federal court where she stands a better chance of being awarded spousal support. Maria’s legal counsel informed her that Peter owes her money under the affidavit of support he signed. Hence, he filed a civil lawsuit for enforcement of contract. The district court ruled in favor of Maria and considered the affidavit of support as a contract. Peter was ordered to pay spousal support as part of his obligation when he petitioned Maria for the green card. He was obligated to pay his spouse an amount equivalent to 125 percent of the ‘poverty income level’.
Enforceable Affidavits of Support
Those who are petitioning relatives for U.S. immigrant visas are required by law to execute affidavits of support before visas may be issued. These affidavits are submitted to assure the U.S. government that the petitioned relative will not be a public charge or that they do not apply for government assistance or welfare upon arrival in the United States.
While these documents are termed as “affidavits”, they are in fact enforceable contracts. The petitioner agreed by signing the affidavit to provide support to maintain the sponsored alien at an annual income not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable. Aside from the government agencies, the sponsored immigrant may sue the U.S. citizen sponsor if he does not provide the support as required by law. This is what happened in the case of Stump v Stump, an Indiana Northern District court case where the U.S. citizen petitioner was ordered to pay spousal support based on the affidavit of support that he signed on behalf of his petitioned spouse.
Limits of Enforceability
The affidavit may only be enforced while it is in effect. The petitioner is no longer liable in the following cases: (1) when the sponsored spouse becomes a naturalized U.S. citizen; (2) sponsored spouse earned enough income in 40 qualifying quarters under the social security law; (3) either the sponsor or the sponsored spouse dies; or (4) sponsored spouse abandons her lawful permanent resident status and departs the United States.
Divorce or separation from the sponsored spouse does not terminate enforceability of the affidavit of support.
The civil case for enforcement is filed with the appropriate district court and the nature of the case may be breach of contract or specific performance of the contract.
Poverty Guidelines
In executing affidavits of support the U.S. Citizenship and Immigration Service provides information on what level of income must be maintained by the petitioner for purposes of petitioning a relative. This level of income is based on the poverty guidelines released yearly by the U.S. Department of Health and Human Services.
Generally, a spouse seeking financial support based on the Affidavit of Support is awarded an amount equivalent to one household. This may amount to approximately $11,170 per year. This is not an absolute figure and the court may modify the exact amount to be paid by the sponsor.
Avoiding Bitter Separations
There are not too many sponsored divorced spouses filing for enforcement of affidavits of support. Many still desist from taking this route, as they feel beholden to their petitioners who they recognize as their genuine sponsors and who provided them with the opportunity to immigrate to the United States. Yet there are disgruntled ex-spouses who opt to file for financial support.
For bitter separations or divorce and for those who decide to file a case against the sponsoring spouse, note that there are possible defenses that may be raised to win their case against the sponsored spouse. One of these is the proving fraud on the part of the sponsored spouse by showing that the marriage was used simply for immigration benefits.
To avoid these civil lawsuits, it would be best for separating spouses to enter into amicable settlement agreements in regards to the terms of separation and spousal support. Or to be proactive about it, to consider drafting agreements where the sponsored spouse waives any future claims against the petitioner similar to pre-nuptial agreements.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
