By: Coleman Jackson, Immigration Attorney
November 28, 2015
An immigrant affidavit of support under the U.S. Immigration & Nationality Act (INA) § 1183 executed as a part of the condition for an immigrant to enter the United States is an enforceable contract. See In re Marriage of Kamali and Alizadeh, 356 S.W.3d 544, 546-47 (Tex. App. – Texarkana 2011, no pet.) It has long been U.S. national policy concerning welfare and immigration that immigrants coming into the United States be self-sufficient rather than rely on welfare and public benefits for their needs. Immigration and Nationality Act Section 213A; 8 U.S.C. § 1183a memorializes this public policy by requiring that immigrants admitted into the U.S. have proper sponsorship. The petitioner of an immigrant is required to be a sponsor, unless, the immigrant is self-petitioning under the law. Self- petitioners do not need sponsors—such as, Violence Against Women Act petitioners and Asylum Applicants for example do not need sponsors. Moreover sponsoring individuals must provide annual income not less than 125 percent of the federal poverty guidelines for the duration of the affidavit of support.
The affidavit of support is an enforceable contract. The affidavit of support is a legal contract between the U.S. government, the immigrant and the sponsor(s) who executed the affidavit of support. The state government where the immigrant resides may also enforce the affidavit of support if the state provides some kind of public assistance to the immigrant. The affidavit of support is intended to ensure that the immigrant has adequate financial means so that they do not become a public charge or require public assistance or welfare. The federal government, state government or immigrant can bring a lawsuit in any court that has jurisdiction to enforce the affidavit of support. The sponsored immigrant can bring a civil action in any appropriate court against the sponsor(s) to enforce the support obligations whenever there is a breach. When the immigrant becomes a U.S. Citizen the support obligation ends. INA §1183a delineates a number of other events, which if they occur, will terminate the sponsor’s obligation of support.
DIVORCE IS NOT ONE OF THEM. A divorce decree that conflicts with an affidavit of support will not prevail. See Shumye v. Felleke, 555 F. Supp. 2d 1020, 1022-24 (N.D. Cal. 2008), and 8 U.S.C. § 1183a (e) (1). The divorce decree cannot in any way limit the sponsor(s) financial obligations under an affidavit of support. Furthermore, the affidavit of support survives the divorce. That means that the petitioner or other sponsor is still on the hook to financially support the immigrant even though the marriage has terminated in divorce. The (immigrant ex-spouse) can either choose to enforce the affidavit of support by claiming breach of contract in the divorce proceedings or pursue the affidavit of support breach of contract claim in any other appropriate court. In fact, the breach of contract claim can be brought long after the divorce is final; so long as, no other Affidavit of Support terminating events have occurred cognizable under INA §1183a.
Although we do not explore this in detail; we mentioned in this blog that the federal government can also bring a cause of action in any appropriate court to enforce an affidavit of support because the federal government is a party to the contract. Moreover a state government who provides some form of assistance to the immigrant may also bring a civil claim against the sponsor(s) in certain circumstances. Even a city or municipality, under certain circumstances might have a basis in law to bring a claim against a sponsor under the affidavit of support under certain circumstances. The main thing to remember is the following:
The immigrant Affidavit of Support is an enforceable contract, and courts will, most likely, apply the principles of contract law when confronted with a civil claim based on an immigrant affidavit of support. Sponsors beware.
This immigration law blog is written by the Tax & Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader. You should consult with legal counsel with respect to any specific immigration and tax issues or your particular set of circumstances impacting you or your sponsors.
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