Published:  October 12, 2014

I-864 Affidavit of Support: A Legally Enforceable Contract

For the vast majority of individuals being issued U.S. lawful permanent resident, or “green card” status, their applications for residence are premised on a family based visa petition and a specific familial relationship with a U.S. citizen or resident family member, such as spouse/spouse, parent/child, or sibling connection.  With few exceptions, the U.S. citizen or resident filing the immigration petition will also eventually execute, as part of the immigration process, an I-864 Affidavit of Support – a document guaranteeing that the new immigrant will not become a “public charge,” or dependent on certain government resources or benefits for a specified period.  In a recent federal court ruling out of Arizona, and consistent with a trend being seen across our nation’s state and federal courts, the I-864 Affidavit of Support has been deemed to establish a legally enforceable contract between the immigrant and the U.S. sponsor, and where the sponsored immigrant is entitled to a certain level of support from the U.S. petitioner sponsor for a specified period.

This past summer’s decision by the U.S. District Court in Arizona addressed the claim of a foreign national spouse who had been petitioned for U.S. permanent resident status by her U.S. citizen husband.  As is required in practically all family based immigration filings, an I-864 Affidavit of Support was filed by the sponsoring/petitioning U.S. family member, and in this case, again, a U.S. citizen husband.  In this case, the foreign national wife obtained U.S. resident status in 2009, but in 2012 the couple divorced.  In the context of a breach of contract lawsuit brought by the foreign national wife in federal court, the foreign spouse claimed, and the U.S. District Court agreed, that by executing an I-864 Affidavit of Support, the U.S. citizen petitioner not only was guaranteeing the U.S. government that his new wife would not become dependent on U.S. welfare, but also that her income would be no less than 125% of the poverty level for the required statutory period – which is either 10 years, or when the immigrant becomes a U.S. citizen, whichever is sooner.

For the periods at issue in the Arizona case, 125% of the poverty level for a 1 person household was $13,962.50 for 2012, $14,362.50 for 2013 and $14,587.50 for 2014, and these numbers were used as benchmarks to determine the amount the U.S. citizen sponsor/husband was liable for at the time of the decision – which added up to $11,448.00 – the difference between what the new immigrant earned and the level guaranteed by way of the I-864 .  Further, as of last month, the court’s order was supplemented to include a provision directing the U.S. citizen sponsor/husband to pay his ex-wife’s attorney’s fees in the amount of $31,780.00.

For certain, the law regarding a U.S. sponsor’s financial obligation toward their sponsored immigrant is becoming more complicated.  So while it is the rare case where it is the U.S. government seeking to enforce an I-864 Affidavit of Support against a particular affiant – (ironically, a mechanism that was the basis of establishing the I-864 documentary requirement in the first place), both state and federal courts seem to be an increasingly popular forum for the I-864 to be enforced between the parties themselves and under basic contract law theories.  The success of this type of lawsuit, however, will depend on whatever judicial precedent, if any, has been established in the jurisdiction at issue.


PUBLISHED October 12, 2014– “IMMIGRATION LAW FORUM” Copyright © 2014, By Law Offices of Richard Hanus, Chicago, Illinois