Form I-864 (affidavit of Support) and Its Effect on Divorce: What Every Family Law Attorney Needs to Know About Immigration Law

• Citation: Vol. 19 No. 11
• Publication year: 2015

Form I-864 (Affidavit of Support) and its Effect on Divorce: What Every Family Law Attorney Needs to Know About Immigration Law

by Gary Singh and Usha Pillai

Has any Hawaii family law practitioner heard of spousal support for life in a divorce? Or finding that what one thought were spousal support obligations are really contract damages? Does every family law practitioner's intake form ask for information regarding the citizenship or immigration status of any potential client and spouse? The seemingly innocuous Affidavit of Support (Form I-864) makes all of the above questions relevant.

HOW DO IMMIGRATION LAWS IMPACT FAMILY LAW?

Congress limits lawful permanent residence in the United States to certain select groups of people. According to Immigration and Nationality Act ("INA") § 203(a), intending immigrants who can obtain lawful permanent resident status are usually: (1) family-sponsored immigrants, who are immediate relatives and family preference immigrants of U.S. citizens or immediate relatives of lawful permanent residents; (2) employment-based preference immigrants sponsored by U.S. based companies; (3) refugees and asylees; or (4) diversity visa lottery immigrants.

The Office of Immigration Statistics Yearbook shows that of the four categories, family-sponsored immigrants have always constituted the largest category. In 2013, family-sponsored immigrants represented 66 percent of the total that were granted permanent residence. Immediate relatives of U.S. citizens made up 44 percent of the total lawful permanent resident flow, and spouses of U.S. citizens comprised 57 percent of immediate relative lawful permanent residents. These statistics reveal that there is a significant family law aspect to immigration law, and that marriage is the most common legal mechanism used to obtain immigration status in the United States.

As it is usually the family law practitioner and not the immigration lawyer who sees the effect that immigration documents have on subsequent family law events such as marriage, adoption, divorce, and execution of prenuptial agreements, it is vital that a family law practitioner have a basic understanding of the hybrid law where family and immigration laws intersect. When in doubt a family law practitioner must contact an immigration lawyer immediately, because immigration law issues may jeopardize a separate family law matter, and timing could be critical to the outcome of the case.

While beyond the scope of this article to provide an exhaustive analysis, it presents: (1) an introduction to the role of affidavits of support in the family immigration context; and (2) an introductory overview of such affidavits of support in family law practice using statutory and judicial authority regarding issues of enforceability, jurisdiction, computing support, prenuptial waivers, and determining the duration of the obligations of the affidavit of support.¹

THE ROLE OF THE AFFIDAVIT OF SUPPORT (FORM I-864) IN FAMILY-BASED IMMIGRATION

INA § 213a(4)(c) states that a U.S. citizen or lawful permanent resident may file an immigration petition for a relative seeking lawful permanent residence in the United States. A citizen of the United States may petition for a spouse; children, married or unmarried; parents; and brothers and sisters. 8 U.S.C. § 1151(b)(2)(A)(i) (2012). A lawful permanent resident may petition for a spouse and unmarried children under age twenty-one. 8 U.S.C. § 1153(a) (2012). Filing a Form I-864 Affidavit of Support is part of the application process, and the affiant who accepts financial responsibility for the relative becomes a sponsor. 8 U.S.C. § 1183a (March 13, 2002).

A sponsor must be a U.S. citizen, national, or permanent resident at least 18 years of age, and domiciled in the United States or a U.S. territory or possession, according to the governing statute 8 U.S.C. § 1183a(f). Though the statute does not define "domicile," the Attorney General in Park v. Holder, 63 F.3d 855 (9th Cir. 2009), promulgated a regulation defining it as the sponsor's principal residence, as defined in INA § 101(a)(33), with the sponsor intending to maintain that residence for the foreseeable future. Id. at 858-59.

The INA § 101(a)(33) definition of "residence" is: "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." Id. The court went on to state that, although a sponsor must be domiciled in the United States, a person may qualify as a sponsor even though not currently living in the United States. Such a sponsor must prove by a preponderance of the evidence that the sponsor (1) is only temporarily residing abroad by reason of employment, and that such employment meets the requirements of INA § 319(b)(1); or (2) will establish a domicile in the United States on or before the date of the alien's admission or adjustment of status. Id. In Park, the noncitizen wife was denied adjustment of status to lawful permanent resident because her citizen husband failed to qualify as a sponsor by virtue of his having no intention to be domiciled in the United States. Id.

A sponsor must show that household income is equal to or higher than 125% of the U.S. poverty level for sponsor's household size. 8 U.S.C. § 1183a(f) (2012). The household size includes the sponsor, dependents, any relatives living with the sponsor, and the immigrants being sponsored. Id. If a sponsor is on active duty in the armed forces, and the immigrant being sponsored is a spouse or child, then that sponsor's income only needs to equal 100% of the U.S. poverty level for the sponsor's household size. 8 U.S.C. § 1183a(f)(3) (2012).

If the income level of an intended sponsor falls below these financial criteria, a joint sponsor may be found. 8 U.S.C. § 1183a(f) (2012). A joint sponsor must be willing to accept legal responsibility for supporting the sponsored family member with the original sponsor. Id. A joint sponsor must meet all the same requirements independently but need not be related to the immigrant. Id.

Form I-864 requires the sponsor to maintain the immigrant at an annual income that is not less than 125% of the applicable federal poverty guidelines during the period in which the affidavit is enforceable. 8 U.S.C.A § 1183a(a) (1)(A) (March 13, 2002). Form I-864 must be filed and accepted by the U.S. Citizenship and Immigration Services ("USCIS") for a noncitizen to overcome inadmissibility due to a likelihood of becoming a "public charge." 8 U.S.C. § 1182(a)(4) (March 13, 2002).

The Affidavit of Support is considered a contract between the federal government and the petitioning sponsor of the alien. It is legally enforceable against the sponsor by: 1) the sponsored alien; 2) the federal government; 3) any state or any political subdivision thereof; or 4) any other entity that provides any means-tested public benefit. An action to enforce the contract may be brought against the sponsor in any appropriate state or federal court. 8 U.S.C. § 1183a (March 13, 2002).

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which modified the Immigration and Nationality Act. The amended act required that all sponsors petitioning for intending immigrants execute a Form I-864 Affidavit of Support, to ensure that these immigrants do not become a public charge. Congress intended to "create a new, legally binding affidavit of support in order to seek reimbursement from sponsors for the costs of providing public benefits." Commentary relating to § 551 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") as quoted in H.R. Conference Report 104-828, 104th Cong., 2nd Sess. (Sept. 24, 1996). This document serves the important public policy objective of relieving the government of the responsibility of supporting poor, jobless immigrants, by placing it on the relative sponsor instead.

THE IMPACT OF THE AFFIDAVIT OF SUPPORT ON MARRIAGE AND DIVORCE

The main concern of the family law practitioner is the effect of Form I-864 obligations on divorce. However, there must be a valid marriage for immigration purposes before there is a legitimate divorce. The duration of a valid marriage is also a factor to be considered.

What is a Valid Marriage for Immigration Purposes?

Since marital status is a means of granting immigration status, Congress both defines and regulates marriage through the immigration process. Usually marriages performed legally abroad are considered legitimate in the United States for immigration purposes.²However, marriages performed under laws that conflict with U.S. federal laws on marriage or the laws of the state of the spouse's domicile are deemed invalid. Therefore, bigamous and polygamous marriages, unconsummated proxy marriages, and some common law unions are not valid. Sham marriages used as a means of circumventing immigration law are not valid for immigration purposes. Same-sex couples now enjoy immigration benefits based on marriage, after the Supreme Court struck down the Defense of Marriage Act.³

Lawful permanent residence status obtained through marriage is conditional if it is based on a marriage that was less than two years old on the day permanent residence was given. INA § 204.⁴ Conditional resident status is given on the day the immigrant is lawfully admitted to the United States on an immigrant visa or adjustment of immigrant's status to permanent residence. Id. A conditional permanent resident receives a non-renewable green card valid for two years. Id. Conditional permanent residence status confers the same rights and responsibilities as that of lawful permanent resident status. Id.

This non-renewable legal immigrant status is designed to help USCIS determine if the marriage is bona fide. Id. During the two-year conditional period, the USCIS may terminate the foreign national's conditional status if it determines that: (1) the marriage was a...