Support Under the Federal Immigration I-864 Affidavit of Support Versus California's Family Code and State Case Law: What Family Law Attorneys Should Know
| Publication year | 2018 |
| Author | Faith Nouri |
Faith Nouri
Faith Nouri is a principal attorney at Nouri Law Corporation and has a dual license to practice in the U.S. and Canada. She is a Family Law Specialist designated by the State Bar of California, minor's counsel, mediator and collaborative divorce attorney. Ms. Nouri represents clients from 26 countries and handles California family law, international abduction, and U.S. and Canada immigration and cross-border issues including inadmissibility into US and Canada. She can be reached at www.nourilaw.com
This article examines the Affidavit of Support mandated by the Department of Homeland Security (DHS) or State Department for family-based immigration cases when a U.S. citizen agrees to sponsor an intended immigrant, and the immigration laws that apply to the marriage between the sponsoring and intended immigrant spouses and the dissolution of that marriage. In many ways, those laws are different and directly contrary to California's Family Code and case law that otherwise would govern the dissolution. This article explores how those laws differ and offers some practice tips for California family law attorneys to consider when represent either party to the dissolution.
All U.S. citizens, when sponsoring a foreign national1, must comply with the U.S. Immigration and Nationality Act ("INA"). Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("Immigration Responsibility Act"),2 and this Act made sweeping changes to immigration rules. One critical change is the requirement that the U.S. citizen sponsor execute Form I-864, "Affidavit of Support" (hereinafter, "Affidavit"), in which the sponsor promises to support the immigrant seeking admission to the United States at a level not less than 125% of the national poverty level (and not less than 100% for a sponsoring spouse on active duty in the Armed Forces or U.S. Coast Guard). The government itself has said in its guide for sponsors that the purpose of the I-864 Affidavit is to prevent the noncitizen from becoming a public charge.3
Specifically, section 531(a) of the Immigration Responsibility Act amended section 212(a)(4) of the INA, and provides that an immigrant is inadmissible if likely to become a "public charge," i.e., likely to seek public benefits: "an alien is inadmissible as an alien likely to become a public charge if the alien is seeking an immigrant visa, admission as an immigrant, or adjustment of status as: (a) An immediate relative, (b) a family-based immigrant, or (c) an employment-based immigrant, if a relative of the alien is the petitioning employer or has a significant ownership interest in the entity that is the petitioning employer." As a result of this change, to overcome the public charge inadmissibility ground, the sponsor has to show that he or she earns enough to support the immigrant at least to a level that is 125% of the national poverty level.4 To prove this, the sponsor must sign and file an Affidavit under section 213A of the INA, 8 U.S.C. § 1183a, for the benefit of the non-citizen foreign national.5 The spousal or domestic partner sponsor is the petitioner, who signs the affidavit for the immigrant spouse or domestic partner coming to live in the United States.
This article focuses on spousal and domestic partner sponsorship, i.e., when a U.S. citizen sponsors an intended immigrant spouse or domestic partner, and the Affidavit and its impact on California dissolution of marriage or domestic partnerships. Any reference to "spouse" and "marriage" is also a reference to "domestic partner" and "domestic partnership;" the analysis and recommendations apply equally to both unions.6
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First and foremost, it is important for family law practitioners to understand that the Affidavit is a legally binding and enforceable contract between the sponsoring spouse and the federal government, under which the sponsoring spouse agrees to support the intended immigrant spouse to a certain economic level. The federal government relies on this Affidavit and the sponsor spouse's income and all assets available to him or her as stated therein to determine whether the sponsor is able to meet the financial requirements of sponsorship, and to safeguard against the sponsored spouse applying for federal and state means-tested public benefits (i.e., becoming a "public charge").7 What may surprise many family law practitioners is that 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 the Family Code. The spouse's right to enforce the Affidavit and the seminal case of Erler v Erler, 824 F.3d 1173 (9th Cir. 2016), among others, is discussed below.
The sponsoring spouse's obligation under the Affidavit terminates by operation of law only upon the occurrence of one of five specific circumstances:
- The intended immigrant becomes a U.S. citizen;
- The intended immigrant is no longer permanent resident by either departing U.S. or relinquished his/her residency;
- The intended immigrant is subject to removal or deportation proceedings but applies for and obtains, in the Immigration court hearing the matter, a new grant of adjustment of status, based on a new affidavit of support, if one is required except for limited purpose when the intended immigrant entered as a fiance and later adjust status in US;
- The intended immigrant or sponsor dies. That said, a sponsor's estate upon death of the sponsor may have obligation for any support that was accumulated before the sponsor's death; or
- The intended immigrant worked for forty qualifying quarters as defined in Title II of the Social Security Act.8
Notice that divorce is not one of the enumerated circumstances that terminates sponsor obligations under the Affidavit. The newly revised Affidavit expressly states that the obligations of the sponsoring spouse to sponsor the immigrant spouse do not terminate with divorce or dissolution of marriage. By signing the Affidavit, the sponsoring spouse expressly acknowledges that until his or her obligations under the Affidavit terminate, he or she undertakes the full obligation and promise to provide the sponsored spouse with any support necessary to maintain the sponsored spouse at an income level that is at least 125% of federal poverty guidelines9 for his or her household size (reduced to 100% if the sponsoring spouse is on active duty in the U.S. Armed Forces or U.S. Coast Guard, and the sponsored person is his spouse or unmarried child under twenty-one years of age).10 The support obligation even survives bankruptcy as a non-dischargeable domestic support obligation that ends only on the occurrence of one of the five enumerated circumstances.11
The sponsoring spouse also agrees to submit to the personal jurisdiction of any federal or state court that has subject matter jurisdiction over the sponsor to enforce the obligations under the Affidavit.12 The sponsoring spouse also authorizes the release of information contained in the signed Affidavit, in supporting documents and in the sponsoring spouse's DHS or Department of State records to "other entities and persons where necessary for the administration and enforcement of U.S. immigration laws."13
What happens if the sponsoring spouse cannot submit documentary proof that the immigrant spouse will not be a public charge, i.e., that the sponsoring spouse has the ability to support the sponsored spouse at an income level that is at least 125% of federal poverty guidelines for his or her household size? Simply put, the government will not give the sponsored spouse immigrant status.
Joint sponsorship is an option, but that comes with its own separate obligation for the joint sponsor. If the sponsoring spouse is unable to show that he or she can meet the poverty guidelines test, then the sponsoring spouse can ask one other person (two under certain circumstances)14 to formally co-sponsor the intended immigrant spouse. The joint sponsor individually must be able to meet the minimum income threshold established by the poverty guidelines, taking into consideration his own household plus the sponsored immigrant spouse.15 The joint sponsor signs his or her own Affidavit for the sponsored spouse and is jointly and severally liable for the support of the sponsored immigrant spouse.16
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This federal law extends an obligation to support an intended immigrant to the third-party joint sponsor, which could complicate matters for family law practitioners because under California law, spousal support is an obligation between the spouses. We do not join other third parties to the dissolution to argue that they are directly liable to the spouse for spousal support.17 Payments of recurring gifts and assistance by family members can be considered to increase a spouse's income for purposes of calculating a support obligation in family law court, but do not create a direct obligation of third parties to the other spouse.18 How the Affidavit fits within the rubric of our State's laws is addressed below.
Rules concerning spousal support in California are set forth in statutes and a long line of cases that have created a mostly clear path for family law practitioners to navigate. The family court has broad discretion. For example, when the court is presented with a request for temporary spousal support to preserve the status quo during a dissolution proceeding, it may order either spouse...
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