Affidavits of support and their implications

Almost all applications for immigrant visas will require petitioners to execute an Affidavit of Support. The purpose of this document is to ensure that the person being petitioned will not be a public charge or someone reliant on public funds for sustenance once the petition is granted.  The affidavit sets forth financial and other facts and contains certain promises that the affiant makes voluntarily and under oath. It is a contractual obligation of the sponsor and as such, is enforceable.

Jonathan is a naturalized American citizen who spent two weeks of vacation in the Philippines. In one of the gatherings he attended, he saw Yoly, his high school sweetheart, with whom he lost touch. After many years, they found each other again and decided to marry.

Last year, Jonathan filed a petition for Yoly to get an immigrant visa. He executed an Affidavit of Support as required. Yoly was issued an immigrant visa and was able to travel to the United States.

Six months after living together, Yoly left the conjugal home after discovering that Jonathan was having an affair with his co-worker. She then filed for divorce and sought spousal support. The divorce judgment was issued but the order of spousal support granted was only the minimal amount of $300.  The court required Yoly to show proof that she is taking sufficient steps to gain employment as a condition for continued payment of spousal support.

Since the minimum amount of $300 was not enough for Yoly, she filed a federal lawsuit for enforcement of the Affidavit of Support which Jonathan had executed as part of her immigrant visa petition.

If the court grants Yoly’s request, she will be receiving monthly support of at least $1300. Will Yoly prevail in her lawsuit for enforcement of the Affidavit of Support?

Enforceable contracts

The Affidavit of Support is an enforceable contract. By signing this document, the petitioner agreed 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.

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 $13,500 per year. This is not an absolute figure and the court may modify the exact amount to be paid by the sponsor.

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 US citizen; (2) when the sponsored spouse earns enough income in 40 qualifying quarters under the social security law; (3) when either the sponsor or the sponsored spouse dies; or (4) when the sponsored spouse abandons her lawful permanent resident status and departs the US.

Divorce or separation from the sponsored spouse does not terminate enforceability of the affidavit of support.

The civil case for enforcement may be filed with the appropriate district court and the nature of the case may be a breach of contract or a specific performance of the contract.

No need to show mitigation

The case of Jonathan and Yoly is similar to the case decided by the federal court in the case of  Liu v Mund (7th Circuit, July 12, 2012).  The US citizen-spouse in that case claims that the sponsored spouse is obligated to mitigate damages by showing proof that he or she is trying to seek employment. The basis of this legal position is the established rule in contract where the other party bringing the action must try to reduce the amount of damages incurred.

The court did not agree with the sponsoring party’s position for two reasons. First: the purpose of the Affidavit of Support is to prevent the sponsored spouse from becoming a public charge or relying on benefits that are funded by taxpayers and donors of organizations that provide charity for the poor. The sponsor should not be allowed to bail out on his obligation just because the sponsored spouse is not looking for employment. If she or he is allowed to prevail on this argument, then the burden of support will fall on the taxpayers and charitable institutions. Second, sponsoring an individual for a green card is an important undertaking with clear corresponding financial responsibilities. According to the court, the prospective sponsor must be more cautious about sponsoring immigrants.

Being more prudent

There are not many disgruntled ex-spouses who have opted for enforcement of Affidavits of Support. Most of those who are separated find employment above the poverty guideline, thus relieving the sponsoring ex-spouse of financial obligation. Other ex-spouses may have filed for naturalization to US citizenship, thus terminating the obligation of the sponsoring ex-spouse under the Affidavit of Support.  However, since the Affidavit of Support may be effective even after divorce, it is important that the sponsoring individual be more prudent in signing Affidavits of Support or even in petitioning individuals. It is still one’s choice to be a sponsor. Before signing an affidavit, however, it is important that one understands that this is a real undertaking, enforceable under the law, and that the corresponding financial responsibility may very well outlive the relationship between the petitioner and the person for whose benefit the Affidavit of Support was made.

(Atty. Lourdes Tancinco may be reached at [email protected] or at 8877177 or 7211963 or visit her website at www.tancinco.com)