By Robert H. Gibbs
Sponsors of family members are surprised to discover that their sponsorship includes significant and long term financial obligations, even after a divorce. In order to immigrate a family member to the U.S., the citizen or permanent resident petitioner, and possibly other cosponsors, must usually submit an I-864 affidavit of support to the U.S. government. For a family of two, the support obligation to the applicant is currently about $19,387/yr.
Once the application is approved for the immigrant, the I-864 cannot be withdrawn and is enforceable by either the immigrant, or any government welfare agency. The immigrant can enforce the support requirement, less any earnings on their part, in state or federal court. A welfare agency can seek reimbursement of welfare benefits paid to the immigrant, such as SSI, food stamps, or Medicaid.
Even if the marriage breaks up or ends in divorce, this support obligation can continue for many years. This obligation is coming up increasingly in divorce actions, even where the state divorce law would normally provide only limit spousal support. The support obligation continues till the immigrant becomes a citizen, or can be “credited with 40 quarters of employment,” abandons his/her permanent residence in the U.S., or the I-864 signer dies. Since the immigrant may never become a citizen, the support obligation could continue till the 40 qualifying quarters’ of employment (ten years) is met. Where the immigrant is not in the workforce, e.g. because of language, age, disability, the obligation could be a lifetime one for the sponsors. The support obligation also applies to children who immigrate with the principal immigrant and who are also covered by the I-864, even after they become adults.
Calculating whether the I-864 can still be enforced, or is even needed is somewhat complex, and even many immigration lawyers do not understand it. The 40 quarters calculation includes several parts. The rule does not require actual work in 40 quarters, but instead the earning of a certain amount in the calendar year, which Social Security determines equivalent to a calendar quarter of earnings. For 2014, $1200 establishes one qualifying quarter, so if the individual earns $4800 or more in the year, they are credited with four quarters for that year, even if the individual only actually worked a few weeks in that year. Only four quarters are credited for a calendar year.
Quarters accrued by the spouse during the marriage, or by a parent before the applicant is 18 may be combined. For example, if the citizen spouse of the immigrant had accrued 30 qualifying quarters during the marriage, and the immigrant spouse had accrued 10 quarters after the marriage date but before a divorce, then the 40 quarters requirement would be met, so no I-864 needs to be filed, or if it had been, then enforceability is at an end.
The earned income also may include self-employment income in the United States on which SSA taxes were paid. The earned income does not need to be from legally authorized employment, so long as SSA taxes were paid on the employee’s valid SSN.
Because of enforcement risks, sponsors of immigrants should carefully consider before signing an I-864 whether the I-864 is needed, based on the 40 quarters rule. An additional reason to avoid filing the I-864 if possible is that later welfare applications will not consider the income of the sponsor in evaluating income of the noncitizen for benefits purposes.
Even if t he I-864 is required, the sponsor may ask that the immigrant provide a signed waiver of his/her rights to enforce the support obligation, perhaps in exchange for other consideration. This would not waive the government’s right to collect any welfare benefits paid, but it would nonetheless be important.
Additionally, in the event of separation or divorce, in settlement the parties could agree to waive the enforceability of the I-864 by the immigrant. Other provisions in a divorce settlement might include an agreement by the immigrant to make a good faith effort to obtain citizenship at the earliest possible date (perhaps with the sponsor paying the legal and filing fees), and to make good faith efforts to obtain employment, and to report these efforts (and earnings) upon request by the sponsor. The parties could agree to liquidated damages by the immigrant for noncompliance.