Til Death Do Us Part: Affidavits of Support and Obligations to Immigrant Spouses

‘TIL DEATH DO US PART: AFFIDAVITS OF SUPPORT AND

OBLIGATIONS TO IMMIGRANT SPOUSES

Veronica Tobar Thronson

This article analyzes the use of a federal afﬁdavit of support, a required document that forms part of all family immigration

petitions to overcome public charge grounds of inadmissibility. The federal statute mandating afﬁdavits of support was altered

in 1996 in an attempt to make them contractually binding, even after the dissolution of marriage. Further, afﬁdavits of support

implicate not only obligations between spouses, but also deeming analysis for public beneﬁt eligibility. Case law interpreting

these afﬁdavits of support is scarce and varied, but trends, patterns, and contested issues are emerging. Yet courts have not

settled on any theory and practice for incorporating these afﬁdavits into their decisions related to family dissolution. This article

provides an introduction to afﬁdavits of support and an initial effort to frame the most critical issues related to them that arise

in family litigation. This article also highlights some of the key strategic issues and caveats for litigants and parties.

Key Points for the Family Court Community:

• An introduction to afﬁdavits of support and the immigration law context in which it exists

• A review of trends, patterns, and contested issues emerging in available judicial decisions in state and federal courts

• Key strategic issues and caveats for litigants and par ties on the use of afﬁdavits of support

Keywords: Afﬁdavit of Support; Divorce; Enforcement of Contract; Family Immigration; Immigrant Spouse; Sponsor and

Petitioner; and Spousal Support.

I. INTRODUCTION

Provisions introduced in the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 mandate that each person who petitions for a family member to immigrate to the United States

sign a legally enforceable afﬁdavit of support.

While the afﬁdavit of support is well known among

immigration practitioners as a mandatory part of the immigration process, its existence and implica-

tions in resolving family law disputes are not always understood by family law attorneys and litigants.

Moreover, after the immigration process is complete, immigration attorneys have little incentive to

remain engaged with future family law consequences of a document that they have put into play, and

thus many immigration attorneys remain woefully unprepared to discuss the lasting implications of

the document with their clients.

Emerging case law from a wide variety of state and federal courts, however, highlights the increas-

ing importance of the afﬁdavit of support in resolving support issues in immigrant families, some-

times decades after the act of immigration is complete. Despite a few efforts at raising awareness for

the family law bar

and the immigration bar,

the burgeoning case law regarding afﬁdavits of support

has largely escaped systemic review and consideration. Yet with millions of afﬁdavits of support now

in effect and litigation on the rise, awareness of the practical and strategic implications is overdue.

This article provides an introduction to the afﬁdavit of support and an initial effort to frame the

most critical issues related to it that are emerging in litigation across the country. While an article of

this scope cannot provide exhaustive analysis, this work seeks to highlight some of the key strategic

issues and caveats for litigants and parties that the developing case law identiﬁes. Part II of this article

introduces the afﬁdavit of support and explains the immigration law context in which it exists. Part III

then reviews available judicial decisions in state and federal courts to identify critical issues with

serious pragmatic and strategic choices that family law attorneys must consider. These include

Correspondence: veronica.thronson@law.msu.edu

FAMILY COURT REVIEW, Vol. 50 No. 4, October 2012 594–605

This project was supported by Grant No. 2015-TA-AX-K043

awarded by the Office on Violence Against Women, U.S.

Department of Justice. The opinions, findings, conclusions and

recommendations expressed in this publication are those of the

author(s) and do not necessarily reflect the views of the

Department of Justice, Office on Violence Against Women.

enforceability, jurisdiction, calculating awards, preclusion, and understanding the potentially indeﬁ-

nite period of the obligation. As the decisional law rapidly expands on these issues, courts trend toward

agreement on some issues but diverge sharply on others. The need for thoughtful engagement with this

growing body of law is evident.

II. THE AFFIDAVIT OF SUPPOR T AND ITS ROLE IN IMMIGRATION LAW

Given that most family practitioners have limited experience with immigration law practice, a

relatively detailed introduction to the afﬁdavit of support and the context in which it arises is

warranted. Indeed, it is likely that not only f amily practitioners but also many people who sign

afﬁdavits of support themselves do not understand the full range of legal responsibilities that arise by

signing the afﬁdavit of support. In immigration practice, the afﬁdavit of support is one of dozens of

documents that are ﬁled in the paper chase of a family based immigrant visa petition, and sponsors can

easily overlook the many ﬁne points to which they are committing.

Immigration law permits U.S. citizens and lawful permanent residents to petition for family

members meeting certain criteria to immigrate to the United States. The vast majority of immigrants

who are lawfully admitted to the United States are admitted based on relationships with family

members.

A citizen of the United States is able to petition for his spouse; children, married or

unmarried; parents; and brothers and sisters.

A lawful permanent resident may petition for his spouse

and his unmarried children who are under age twenty-one.

After establishing eligibility for immigration based on a qualifying family relationship,

the

intending immigrant then must show that she is not inadmissible. Various factors are considered in

determining admissibility.

For pur poses of this article, the critical ground of inadmissibility to note

is that which makes a person seeking admission to the United States inadmissible if she is “likely at

any time to become a public charge.”

Forget about welcoming the tired and poor.

To overcome the public charge ground of inadmissibility, provisions introduced in the Illegal

Immigration Reform and Immigrant ResponsibilityAct of 1996 mandate that each person who petitions

for a family member to immigrate to the United States sign a legally enforceable afﬁdavit of support.

In other words, the signing of such afﬁdavits is not an isolated event and every single time a spouse

petitions for a spouse to immigrate to the United States an afﬁdavit is involved to ensure that the in-

tending immigrant will not fall into poverty. Millions of these afﬁdavits have been executed since 1996.

Signers of these afﬁdavits of support are referred to as “sponsors,” and not anyone can be a sponsor.

A sponsor must be a U.S. citizen, a national of the United States or a lawful permanent resident. The

sponsor must be at least eighteen years of age, must be domiciled in the United States, and must

demonstrate an annual income of at least 125 percent of the federal pover ty line.

A sponsor must be

current in tax reporting in order to be able to document the ability to maintain income through past

federal income tax returns.

Sponsors who earn less than 125% of the poverty level are allowed to

have another person who does meet that requirement submit an independent afﬁdavit of support on

behalf of the immigrant.

That additional sponsor independently commits to support the intending

immigrant, not just as a supplement to the principal sponsor, should the immigrant fall into poverty.

Adding a joint sponsor does not relieve the primary sponsor from ﬁling an afﬁdavit that may have

future effect if the sponsor’s ﬁnancial situation improves.

This required afﬁdavit is not subject to negotiation and must be executed via a government created

document, Form I-864, Afﬁdavit of Support Under Section 213A of the [Immigration and Nationality]

Act.

The for m is daunting and is intended to be so. The document itself is eight pages long, with an

additional eleven pages of instructions. It requires information ranging from basic data on the

intending immigrant to disclosure of detailed ﬁnancial documentation by the sponsor. Speciﬁcally, the

sponsor indicates that he or she has “enough income and/or assets to maintain the intending immi-

grant(s) and the rest of [the] household at 125 percent of the Federal Poverty Guidelines.”

To prove

this ability, the sponsor must submit supporting documentation on assets, employment, and taxes for

the past three years.

Thronson/‘TIL DEATH DO US PART 595

In addition to disclosing ﬁnancial infor mation, the afﬁdavit of support includes contractual lan-

guage setting forth signiﬁcant commitments on the part of the sponsor that extend to both the

intending immigrant and the government. As to the intending immigrant, the sponsor agrees to

“[p]rovide the intending immigrant any support necessary to maintain him or her at an income that is

at least 125 percent of the Federal Poverty Guidelines for his or her household size.”

The afﬁdavit

warns that if “you do not provide sufﬁcient support to the person who becomes a permanent resident

based on the I-864 that you signed, that person may sue you for this support.”

The afﬁdavit of support also warns the signer that it creates “a contract between you and the U.S.

Government. The intending immigrant’s becoming a permanent resident is the ‘consideration’ for the

contract.”

Therefore, it continues, “[i]f a Federal, State or local agency, or a private agency provides

any covered means-tested public beneﬁt to the person who becomes a permanent resident based on the

I-864 that you signed, the agency may ask you to reimburse them for the amount of the beneﬁts they

provided.”

If such reimbursement is not made, “the agency may sue you for the amount that the

agency believes you owe.”

As discussed more fully below, the afﬁdavit lays out a complex set of events that may end the

otherwise unlimited duration of the agreed upon responsibility to provide support.

Lastly, the

sponsor agrees “to submit to the personal jurisdiction of any Federal or State court that has subject

matter jurisdiction of a lawsuit against me to enforce my obligations under this Form I-864.”

With this explanation of the content and scope of the afﬁdavit of support in place, it is now time to

review how this document and the various commitments it imposes have been received by the courts.

III. AFFIDAVITS OF SUPPORT IN PRACTICE

An initial question, of course, is whether afﬁdavits of support are enforceable at all. Yet even a

ﬁnding of enforceability offers very little guidance regarding where people can go to seek enforce-

ment, when they can or must do so, and the types of actions in which the afﬁdavit might have effect.

In the afﬁdavit of support itself, the sponsor agrees “to submit to the personal jurisdiction of any

Federal or State court that has subject matter jurisdiction of a lawsuit against me to enforce my

obligations under this Form I-864.”

While addressing personal jurisdiction, it adds nothing of the

substance of the many subject matter jurisdiction questions that arise. Are such enforcement actions

federal cases, resolving obligations between the sponsor and the United States? Or are these cases

federal because the afﬁdavit of support exists pursuant to a federal statute? Perhaps these are simple

contracts for resolution in the appropriate state courts? Or do these cases present family issues from

which federal courts should abstain? When divorcing spouses are involved, does the presence of

support issues that are normally contemplated in family courts mean that afﬁdavit of support issues

should be resolved in state court divorce proceedings? Or should state courts stay out of federal

immigration matters? Does the failure to raise afﬁdavit of support claims in a divorce proceeding

preclude enforcement elsewhere?

Unfortunately, settled answers to most of these questions are still far away. In the emerging case law

regarding afﬁdavits of support, many issues are raised and few are settled as jurisdictions struggle with

issues of ﬁrst impression. Outcomes across jurisdictions have differed and assuredly jurisdictions will

continue to diverge on many issues. While an article of this scope, at this point in time, cannot resolve

the many strategic and jurisdictional issues that arise, a systemic review of the available decisions

regarding afﬁdavits of support is useful and important to highlight some of the key strategic decisions

and caveats for litigants and parties in these cases.

A. ARE AFFIDAVITS OF SUPPORT LEGALLY ENFORCEABLE?

The idea of sponsor responsibility for intending immigrants is not entirely new, b ut it changed in

character with the introduction of Form I-864. Prior to the changes in immigration and welfare law in

596 FAMILY COURT REVIEW

1996, intending immigrants were required to obtain an afﬁdavit of support to show that they would not

become public charges, and this generally was accomplished using an earlier created afﬁdavit, Form

I-134. However, this form did not purport to create a legal obligation to support the immigrant. While

there is little case law on point, courts that addressed the enforceability of the afﬁdavit found that

executing Form I-134 did not create a legally binding contract.

In fact, the statutory revisions of 1996

and Form I-864 were in part intended in response to this unenforceability, and largely have succeeded

in creating a binding contract.

In one of the few areas of agreement, courts in a variety of jurisdictions have conﬁrmed that the

afﬁdavit of support is a legally binding and enforceable contract.

To date, efforts at enforcement have

largely involved private actions by immigrants seeking to enforce the obligations set forth in the

afﬁdavit of support. For a brief time, public agencies in Connecticut initiated efforts to recover money

spent on public beneﬁts for persons on whose behalf an I-864 had been ﬁled, but dropped these actions

in response to public opposition.

More recently, in a hybrid of these types of actions, a court-

appointed guardian and conservator successfully enforced the afﬁdavit of support on behalf of her

ward.

However, the development of law surrounding the afﬁdavit of support is almost exclusively via

private actions, and these will be the focus of this analysis.

Stump v. Stump,

among the ﬁrst available written opinions addressing the enforceability of the

afﬁdavit, is representative of the reasoning commonly applied; the court there found that the afﬁdavit

of support constitutes a legally binding and enforceable contract between the sponsor and the

sponsored immigrant. Applying contract law principles, the court found that “the Afﬁdavit is binding

and enforceable as a contract, when there is a valid offer, acceptance, and consideration.”

While a

government agency action is permitted to seek reimbursement of beneﬁt funds expended by the

agency, an action by the immigrant is permitted “with respect to ﬁnancial support.”

As such, any

prior receipt of public beneﬁts “is irrelevant to the sponsored alien’s cause of action for ﬁnancial

support.”

Given “the choice between the taxpayers and a sponsor, Congress prefers, indeed requires,

that a sponsor suppor t an alien who has not become self-reliant.”

Courts have regularly rejected challenges to the general enforceability of the afﬁdavit of suppor t.

For example, courts turn away challenges to the contract formation language of the I-864 and ﬁnd

consideration for a valid contract in a defendant’s promise to support the plaintiff in “the plaintiff

being granted entry into the United States.”

Given the alternative of couples living in separate

countries, courts do not struggle to ﬁnd ample the “consideration of his wife not being found

inadmissible to the United States...obtaining legal permanent residence in the United States and in

her not being depor ted....”

Courts likewise have not found afﬁdavits of support unconscionable. For example, a Maryland

court agreed with a husband that Form I-864 may be a contract of adhesion with characteristics of

being “prepared in printed form,” “drafted unilaterally by a dominant party,” “presented on a ‘take it

or leave it’ basis,” and lacking any “real opportunity to bargain about its terms.”

Yet the court found

that “while the Form I-864 may be a contract of adhesion, under Mar yland law, it is not unconscio-

nable.”

Although “this is a ‘take-it-or-leave-it’ offer, the sponsor receives a substantial beneﬁt by

signing the afﬁdavit.”

Claims attacking enforceability of the afﬁdavit of support due to misunderstanding, treachery or

deceit generally fare no better. This is especially true where attorneys were involved in the immigration

petitioning process. In a typical case, a husband sponsor who alleged that he was “deceived” into signing

the afﬁdavit found no traction with the court, which noted “the undisputed evidence shows that after

conferring with an immigration attorney, [husband] decided to sign the afﬁdavit of support and there

was no evidence suggesting that [wife] did anything to encourage [husband] to sign it.

Courts also tend

to be skeptical of easily made allegations of the sort that a spouse “never intended to enter into a lasting

relationship, but was merely using the sponsor to gain immigration status.”

While each case is

factually unique, sponsors have a difﬁcult task in meeting the “burden of proving that the immigrant

committed such fraud.”

Moreover, in assessing the balance of knowledge and power in such instances,

the immigration system is set up so that it is always the sponsor who has grounding and connection in

the United States and it is the intending immigrant who is, literally, in foreign territory.

Thronson/‘TIL DEATH DO US PART 597

Even though it is likely not obvious to litigants in the throes of contested divorce or support actions,

these cases ser ve as a reminder that lawful permanent residence in the United States even for close

family members is precious and difﬁcult to obtain.

And in addition to revealing the immense

importance of families being able to live together, these cases also reveal the high stakes involved in

leaving a country and the fragility of life in a new country for immigrants who leave everything

behind. While the commitments made by sponsors are substantial, the beneﬁts to both sponsor and

intending immigrant may be priceless.

B. MAKING A FEDERAL CASE OUT OF AFFIDAVITS OF SUPPORT?

Federal and state courts have both found jurisdiction over afﬁdavit of support enforcement actions.

State courts have found little difﬁculty in exercising such jurisdiction, though rationales have differed.

For example, some courts rely on 8 U.S.C. § 1183a(e)(1), which provides, “An action to enforce an

afﬁdavit of support executed under subsection (a) may be brought against the sponsor in any

appropriate court. . . by a sponsored alien, with respect to ﬁnancial support.”

More generally, courts

simply fold consideration of I-864 issues into divorce and support actions, concluding that they have

“jurisdiction to consider a claim for enforcement of an afﬁdavit of support within the context of an

underlying divorce action.”

Plaintiffs proceeding under contract approaches should be encouraged to think broadly about

where contract enforcement actions might proceed. In one instance, a plaintiff successfully “ﬁled

suit in small claims court in California . . . seeking ﬁnancial support from [his wife] pursuant to

the Afﬁdavit of Support.”

A clear lesson here is that family practitioners seeking enforcement

should think creatively about the variety of fora and procedural options available in their

jurisdiction.

Federal courts are more mixed, but most federal courts have not hesitated to exercise jurisdiction

over afﬁdavits of support. Some federal courts exercise jurisdiction without comment in issuing

decisions regarding I-864 enforcement.

Others tersely rely on the underlying federal statute creating

afﬁdavits of support and general federal question jurisdiction, ﬁnding “subject matter jurisdiction over

this action, predicated upon 8 U.S.C. § 1183a and 28 U.S.C. § 1331.”

Often, subject matter

jurisdiction is not contested, such as a case in federal court in New Hampshire where the “parties do

not question that this court has subject matter jurisdiction under 28 U.S.C. § 1331, because plaintiffs’

claim arises under federal law—namely 8 U.S.C. § 1183a(e)(1).”

Not all federal courts have been so ready to exercise subject matter jurisdiction to enforce afﬁdavits

of support. For example, one court found that the afﬁdavit of support does create a cause of action,

“the basis of the claim is the contract contained in the Form, not any provision of the federal statute

itself.”

The court further reasoned that the statute directs plaintiffs to “any appropriate court...[and

this] is not an explicit grant of jurisdiction in the federal courts.”

Finding that “a breach contract

claim is a creature of state law,” the court concluded “that it is without federal question jurisdiction to

hear this action.”

Other federal courts have been wary of a variety of abstention doctrines, especially when there are

parallel pending or decided legal actions between the parties in state courts. For example, one court

rejected an appeal for abstention under the Younger abstention doctrine, which concerns potential

federal court interference with pending state judicial proceedings. The court ultimately decided that

because the current federal action sought “to enforce an obligation that exists independently of the

[parties’] marriage,” proceeding with a contract claim in federal court “will not interfere with the

pending divorce proceedings so as to warrant Younger abstention.”

When other court proceedings are complete, some federal courts have expressed the need for

analysis under the Rooker–Feldman doctrine which applies to “cases brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of those judgments.”

Finding a complaint

barred under the Rooker–Feldman doctrine, the court noted that what a husband “in fact sought was

598 FAMILY COURT REVIEW

federal review of a state court’s order enforcing the afﬁdavit of support in his divorce case.”

Such

cases highlight the importance of strategic decisions in family litigation regarding the framing of the

case and whether the afﬁdavit of support will be integrated into the family litigation.

Finally, some federal courts faced with requests to enforce afﬁdavits of support consider support

issues to be family law matters and f all back on the increasingly questionable notion that “family law

matters are strictly the province of state courts.”

While true that traditionally federal courts refuse to

entertain “divorce, alimony, and child custody orders,”

the refusal to contemplate afﬁdavits of

support evidences a very narrow view of the nature of the action and the powers of the federal court.

As many have noted, the federal role in regulating family has never been as minimal as it is often

described, and it is growing.

C. CALCULATING AWARDS

As noted above, jurisdictional analysis can be implicated by whether a claim under the afﬁdavit of

support is characterized as a contractual claim or a claim for support in a divorce or other family law

action. But no matter how the courts view the framing of the case for jurisdictional purposes, there is

a clear trend that in calculating damages and awards courts look at afﬁdavits of support as contractual

matters.

The express terms of the Form I-864 state that “by signing the Form I-864, the sponsor is obligated

to provide the sponsored immigrant with whatever support is necessary to maintain the sponsored

immigrant at an annual income that is at least 125% of the federal poverty level annual guideline.”

By signing a Form I-864 the “sponsor agrees to provide support to maintain the sponsored alien at an

annual income that is not less than 125 percent of the Federal poverty line during the period in which

the afﬁdavit is enforceable.”

Therefore, the “terms of the Form I-864 provide for the appropriate

‘measure of damages that would put plaintiff in as good a position as she would have been had the

contract been performed.’”

Courts generally, but not universally, agree that this requires a year by

year analysis. In other words, to “be placed in as good a position as she would have been had

Defendant performed his support obligation on an annual basis, this Court must compare Plaintiff’s

income against the 125% poverty threshold for each individual year in question.”

The poverty level is not high, and persons earning over the poverty level may not be able to

recover any amount at all.

For example, the Alaska Supreme Court noted that “[e]xisting caselaw

supports the conclusion that a sponsor is required to pay only the difference between the sponsored

noncitizen’s income and the 125% of poverty threshold.”

This will vary based on “appropriate

family unit size.”

Some courts ﬁnd “the sponsored immigrant is expected to engage in gainful

employment, commensurate with his or her education, skills, training and ability to work in accor-

dance with the common law duty to mitigate damages.”

Other courts have found that there is no

duty to mitigate.

Notably, in a recent decision by Judge Posner, the Seventh Circuit Court of

Appeals reversed a lower court decision imposing a duty to mitigate, ﬁnding no such mandate in the

statute and questioning whether imposing such a mandate would be sound policy.

In short, “the list

of excusing conditions does not mention the alien’s failing to seek work or otherwise failing to

mitigate his or her damages.”

Because the sponsor’s responsibility is only to maintain the sponsored immigrant at an annual

income that is no less than 125 percent of the Federal poverty line, the amount of money may not seem

that large. However, this support may make a signiﬁcant difference in the life of a sponsored

immigrant living in poverty whose only means of support may come from enforcing the afﬁdavit.

Moreover, in accumulation the amount may grow substantially.

For immig rants in poverty on whose behalf an afﬁdavit of support has been ﬁled, even small awards

may be signiﬁcant because they may be barred from receiving public beneﬁts. First, even lawful

permanent residents are barred from receiving federal, means-tested public beneﬁts for their ﬁrst ﬁve

years in the United States.

But the afﬁdavit of support also can make immigrants ineligible for

assistance indeﬁnitely via deeming provisions. Agencies may “deem” a sponsor’s ﬁnancial resources

Thronson/‘TIL DEATH DO US PART 599

to be available to the immigrant for purposes of determining the immigrant’s need for public

beneﬁts.

This deeming barrier to beneﬁts will remain in place for the full life of the support

obligation under the afﬁdavit of support.

The contractual focus notwithstanding, it still is common that cases where afﬁdavits of support are

raised in state court domestic matters, courts ﬁnd that the cases “concern the interplay of the afﬁdavit

of support and any award of spousal support.”

For example, one court found that the obligation under

the afﬁdavit is “separate and distinct from any obligation to pay spousal support,” and that the trial

court had erred in “conﬂating the two obligations and applying them in a manner it found equitable.”

This court ordered that “the trial court shall ﬁrst determine plaintiff’s obligation under the Afﬁdavit

of Support and enforce that obligation.”

The court stated that “after having determined plaintiff’s

obligation under the afﬁdavit of support, the trial court shall make a separate deter mination whether

defendant is entitled to spousal support.”

Other courts have found the appropriate order of consid-

eration to be reversed, awarding damages under the afﬁdavit as contract years after spousal support or

alimony obligations were determined or had ended.

The order of consideration can be signiﬁcant, as the award of contractual support amounts may

impact the application of other spousal support factors. At the same time, it is important to note that

many of these cases arise following very short marriages in which spousal support factors are unlikely

to result in any award due to the short length of marriage.

D. PRECLUSION PRECAUTIONS

When there are multiple actions involving support and the afﬁdavit of support, a practitioner must

be aware of preclusion issues. Given that litigation regarding these obligations is relatively new, some

courts have adopted a lenient approach to preclusion. For example, one court permitted an action to

enforce the afﬁdavit ten years after a divorce was ﬁnalized. In that case, the former wife submitted

evidence that “she did not know that she had a cause of action under the Afﬁdavit of Support until she

heard that a friend had been successfully sued under such an Afﬁdavit.”

The court found that because

there was no evidence that the former wife “knew of or in the exercise of ordinary diligence could

have discovered [husband’s] breach before the divorce proceedings, her claim had not yet accrued and

it was not a cause of action that ‘could have been litigated’ during the divorce proceedings for res

judicata purposes.”

Other courts have been less forgiving in addressing res judicata issues, including not only instances

where afﬁdavit of support issues were actually litigated but also claim preclusion situations where

general support obligations were litigated. As one court noted, i t was “unclear whether the Appellant

actually submitted the Afﬁdavit of Support in the divorce proceedings, she clearly could have done

so.”

Because “the Appellant could have pursued her support claims under the afﬁdavit of support in

the divorce proceedings, she is barred from pursuing those claims in Appellee’s bankruptcy case

under the doctrine of res judicata.”

Although there are numerous cases, discussed below, where

afﬁdavit obligations are enforced years after divorces are ﬁnalized, practitioners should not necessarily

expect this to continue. As awareness of afﬁdavit of support obligations rises, practitioners must take

great care to explore the preclusive implications of strategic choices of raising the issue in divorce

proceedings or seeking enforcement separately.

E. SURVIVING DIVORCE AND ENDLESS OBLIGATION

The enforcement period for afﬁdavits of support varies slightly depending on whether the action is

a private action or an action by a government agency. In either event, it can have a very long life, even

exceeding the lifetime of the parties involved. With regards to an action by a government agency to

recoup a sponsored immigrant receipt of means-tested beneﬁts, an action may be brought “no later 10

years after the date on which the sponsored alien last received any means-tested public beneﬁt to

which the afﬁdavit of support applies.”

The critical baseline issue then is how long the afﬁdavit is

in effect.

600 FAMILY COURT REVIEW

The statute and afﬁdavit of support set out various conditions that end the obligation. While these

various triggers could occur quickly, it is possible that none happen until the death of the parties

involved.

The afﬁdavit of support itself speciﬁcally warns “that divorce does not terminate your

obligations under this Form I-864.”

The ﬁrst trigger ending the support obligation is the naturalization of the sponsored immigrant.

Provided they meet other requirements, persons who have been lawful permanent residents of the

United States for at least ﬁve years can apply to become naturalized U.S. citizens.

A lawful

permanent resident who is married to a U.S. citizen may apply to become a U.S. citizen after three

years in such a marriage.

Yet there is no obligation to naturalize, and many lawful permanent

residents choose not to seek U.S. citizenship.

Next, the responsibility of the sponsor to support the immigrant ends if the sponsored immigrant

has worked or can be credited with forty qualifying quarters of coverage under Title II of the Social

Security Act.

Because the sponsored immigrant can be credited with all of the “qualifying quarters

worked by a spouse . . . during their marriage and the alien remains married to such spouse,”

in the

event of a divorce, the sponsor would not be required to provide ongoing support if the marriage lasted

ten years or more, even if the sponsored immigrant never works. This period, of course, would be

shorter if the sponsored immigrant worked during the marriage and achieved her own quarters.

Although not statutorily based, the afﬁdavit of support provides three additional conditions ending

the support obligation when the sponsored immigrant “no longer has lawful permanent resident status,

and has departed the United States; becomes subject to removal, but applies for and obtains in removal

proceedings a new grant of adjustment of status, based on a new afﬁdavit of support, if one is required;

or dies.”

As is apparent from the discussion above, courts have not hesitated to recognize that support

obligations survive divorce. For example, in Hrachova v. Cook, a Florida court ruled the defendant

husband was liable to his former wife after they had been divorced for ten years.

Plainly, courts

recognize that claims for support that initially are made after the termination of the marriage are as

valid as those advanced during the marriage or in the context of divorce proceedings.

In adjudicating these cases, courts frequently struggle with the forty quarters concept and its

implications. For example, in Davis v. Davis, the court awarded spousal support for ten years,

presumably because the immig rant spouse could achieve forty quarters in ten years.

There is,

however, no guarantee that someone will achieve forty quarters in her lifetime and the contractual

obligation is not predicated on the work history that someone could achieve. The support obligation

exists even if people are willfully underemployed or unemployed unless the court imposes a require-

ment to work through a duty to mitigate not expressly found in the afﬁdavit.

Litigants also should be aware of the provisions regarding shared counting of quarters. If the

marriage is intact, even if not healthy, the sponsored immigrant may share the quarters earned by her

spouse during the marriage, thus making the obligation period shorter or nonexistent. In one instance,

the husband asked for an annulment and the wife sought a legal separation. The court granted the legal

separation and the husband later successfully argued that he shared quarters with his wife even though

they were separated, thus shortening the period of his obligation.

Had a divorce been granted, the

former wife would not have been credited with her former husband’s ongoing work quarters. Thus

the length of a divorce proceeding and differences between separations and ﬁnal divorces are among

the strategic choices that practitioners must take into account.

IV. CONCLUSION

Even this brief initial review of the emerging case law related to afﬁdavits of support makes clear

that practitioners working with immigrant families must develop an understanding of the implications

that the afﬁdavit creates. The mere existence of an afﬁdavit of support often will impact fundamental

choices for family practitioners about framing cases, choices of forum, and discovery. For both family

and immigration law practitioners, ethical considerations are prominent as they must reconsider the

Thronson/‘TIL DEATH DO US PART 601

advice given to immigrant families at the time of immigration as much as at subsequent enforcement

stages. Afﬁdavit of support enforcement considerations must become a routine part of family practice,

from initial information gathering steps to ultimate strategic decisions about where and how t o ﬁle

cases.

And beyond the practicing bar, there is need for a deeper and more nuanced exploration of

the theoretical and practical implications that arise from this intersection of immigration law and

family law. Only with more engagement with this set of issues will a coherent and rational approach

develop.

NOTES

1. I would like to thank David B. Thronson for his insights and commentary on early drafts of this article.

2. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1182(a)(4)(C)(ii); U.S. Citizenship

and Immigration Services, I-864, Afﬁdavit of Support Under Section 213A of the Act (Sept. 19, 2011), pt. 8, available at

http://www.uscis.gov/ﬁles/form/i-864.pdf [hereinafter Form I-864].

3. See, e.g., Geoffrey A. Hoffman, Immigration Form I-864 (Afﬁdavit of Support) and Efforts to Collect Damages as Support

Obligations Against Divorced Spouses—What Practitioners Need to Know,83F

LA. B.J. 53 (Oct. 2009) (“This simple and

seemingly innocuous form implicates a wide array of issues including, inter alia, federal court procedure, state court

preemption, family law, immigration, public beneﬁts, and Social Security law”).

4. See, e.g., Charles Wheeler, Alien v. Sponsor: Legal Enforceability of the Afﬁdavit of Support, 10–23 B

ENDER’s IMMIGR.

BULL. 3 (2005).

5. While this article focuses on sponsors who ﬁle Afﬁdavits of Support for their immigrant spouses, ﬁlings for any

family-based sponsored immigrant raise comparable issues.

6. The U.S. Department of Homeland Security Ofﬁce of Immigration Statistics reports that family-sponsored immigrants

(immediate relatives of U.S. citizens and f amily preference classes of admission) represented sixty-six percent of the total legal

permanent residents in 2010. Spouses of U.S. citizens represented ﬁfty-seven percent of immediate relatives. R

ANDALL

MONGER &JAMES YANKAY, U.S. LEGAL PERMANENT RESIDENTS: 2010 (U.S. Dep’t of Homeland Security Off. Immigr.

Statistics ed., Mar. 2011).

7. See 8 U.S.C. § 1151(b)(2)(A)(i) (2012).

8. See id. § 1153(a).

9. Although beyond the scope of this article, it is important to note that eligibility to immigrate stems not simply from the

fact of the qualifying relationship, but also from the decision of the person in that relationship with lawful immigration status

to choose to petition for the intending immigrant. In situations involving domestic violence, this aspect of immigration law can

provide immense power and control to abusers. See generally Veronica T. Thronson, Domestic Violence and Immigrants in

Family Court,63J

UV.&FAM.CT. J. 63 (2012).

10. See generally 8 U.S.C. §1182 (2012) (establishing numerous grounds of inadmissibility based on issues ranging from

criminal history to ideology to health).

11. See id. § 1182(a)(4)(A).

12. Contra E

MMA LAZARUS,THE NEW COLOSSUS (1883).

13. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009,

3009-546 to 3009-724, 8 U.S.C. §1182(a)(4)(C)(ii) (2012).

14. See Immigration and Nationality Act, 8 U.S.C. § 1183a(f) (2012). Note here that the domicile requirement can pose

signiﬁcant difﬁculties in situations where sponsors are living abroad.

15. Id. § 1183a(f)(6)(A)(i).

16. For 2012, 125% of the poverty guidelines for a family of two is $18,912.

17. Joint sponsors raise interesting issues beyond the scope of this article as the extensive and long lasting obligations

created by an afﬁdavit of support can extend to persons far outside intimate family circles involving traditional notions of

obligations to support.

18. Form I-864, supra note 2, pt. 8.

19. Id. This commitment is responsive to the statutory requirement that the “sponsor agrees to provide support to maintain

the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which

the afﬁdavit is enforceable.” 8 U.S.C. § 1183a(a)(1)(A) (2012).

20. Form I-864, supra note 2, pt. 8. Note that the required support level drops from 125% to 100% of poverty level for

sponsors who are active duty military personnel.

21. Id.

22. Id.

23. Id. Federal means-tested public beneﬁt and a state means-tested public beneﬁts and is deﬁned as any public beneﬁt

funded in whole or in part by funds provided by the Federal Government. The Department of State lists the following as

means-tested public beneﬁts: Food Stamps, Supplemental Security Income, Medicaid, Temporary Assistance for Needy

602 FAMILY COURT REVIEW

Families, and State Child Health Insurance Program. AFFIDAVIT OF SUPPORT FORMS (I-864 SERIES FORMS)—FREQUENTLY

ASKED QUESTIONS, http://www.travel.state.gov/visa/immigrants/info/info_3183.html (last visited July 24, 2012).

24. Form I-864, supra note 2, pt. 8. See also 8 U.S.C. § 1183a(a)(1)(B) (2012) (requiring that the Afﬁdavit of Support be

“legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State (or any political subdivision

of such State) or by any other entity that provides any means-tested public beneﬁt”).

25. Form I-864, supra note 2, pt. 8.

26. Id.

27. Id.

28. For example, in Tornheim v. Kohn, an immigrant sued regarding the enforceability of a Form I-134 that his father-

in-law, a U.S. citizen, had signed. No. 00 CV 5084(SJ), 2002 WL 482534, * 3–6 (E.D.N.Y. Mar. 26, 2002). The court reviewed

existing case law on the issue and found that the I-134 afﬁdavit was not enforceable. Id. (citing Dep’t of Mental Hygiene of

Cal. v. Renel, 10 Misc.2d 402 (N.Y. App. Term 1958)). For a history of the afﬁdavit of support, see generally Hoffman, supra

note 3. Note that this nonenforceable Form I-134 is still used in other contexts, such as petitions by U.S. citizens who ﬁle for

their ﬁancés.

29. See, e.g., In re Schwartz, 409 B.R. 240, 246 (B.A.P. 1st Cir. 2008) (citing Shumye v. Felleke, 555 F. Supp. 2d 1020

(N.D.Cal.2008)); Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 WL 1208010 (M.D. Fla. May 4, 2006); Stump v.

Stump, No. 1:04-CV-253-TS, 2005 WL 1290658 (N.D. Ind. May 27, 2005); Ainswor th v. Ainsworth, No. Civ.A. 02–1137–A,

2004 WL 5219037 (M.D. La. May 27, 2004).

30. See Ann Marie Coma, State Suing Immigrants’ Sponsors,H

ARTFORD COURANT, Mar. 1, 2007.

31. Sloan v. Uwimana, No. 1:11–cv–502 (GBL/IDD), 2012 WL 1155206 (E.D. Va. Apr. 4, 2012) (holding sons

liable to provide support to their mother on whose behalf they had ﬁled Form I-864s and including award of attorney’s

fees).

32. 2005 WL 1290658. In this case, Mr. Stump ﬁled Form I-864 on behalf of his wife. In a pattern typical of these cases,

she ﬁled for divorce less than one year into the marriage alleging physical abuse by husband. While the divorce was pending,

she ﬁled to enforce the afﬁdavit in federal court.

33. Id. at 6.

34. Id. at 4 (citing 8 U.S.C. § 1183a(e)(1)).

35. Id. This is important because newer immigrants are ineligible for most public beneﬁts, despite their lawful permanent

resident status. See http://www.nilc.org/overview-immeligfedprograms.html (last visited Sept. 16, 2012).

36. Stump, 2005 WL 1290658 at 7.

37. Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 WL 1208010, 4 (M.D. Fla. May 4, 2006). See also Harsing

v. Naseem, 2012 WL 140418, 2 (D. P. R., Jan. 18, 2012).

38. Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 WL 3806131, 5 (Tenn. Ct. App. Nov. 13, 2009).

39. Al-Mansour v. Shraim, Civil No. CCB–10–1729, 2011 WL 345876, 2 (D.Md. Feb. 2, 2011).

40. Id. at 3. The court further stated that the form “unambiguously” stated that by signing the afﬁdavit, the sponsor agreed

to maintain the sponsored immigrant. See also Baines, 2009 WL 3806131 at 5–7 (arguing lack of consideration and

unconscionability, but the court found that husband had been actively involved in his wife’s immigration concerns and that he

himself had met with the immigration attorney to sign the afﬁdavit; the court further stated that he was not coerced and was not

an involuntary or reluctant actor in the immigration application process).

41. Al-Mansour, 2011 WL 345876 at 3.

42. Hrachova v. Cook, No. 5:09–cv–95–Oc–GRJ, 2009 WL 3674851, 3 (M.D. Fla. Nov. 3, 2009).

43. Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 WL 1208010, 4 (M.D. Fla. May 4, 2006).

44. See id. (citing Wheeler, supra note 4, at 3).

45. This point is never lost on the millions of people unable to obtain lawful permanent resident status in the United States

despite close family ties with U.S. citizens and permanent residents. See generally David B. Thronson, You Can’t Get Here

From Here: Toward A More Child-Centered Immigration Law,14V

A.J.SOC.POL’Y & L. 58 (2006).

46. See, e.g., Davis v. Davis, No. WD-04-020, 2004 WL 2924344 (Ohio Ct. App. Dec. 17, 2004) (reversing the trial court’s

order that, “any speciﬁc suit or enforcement of the § 213(A) of the Illegal Immigration Reform and Immigrant Responsibility

Act, a federal provision, be pursued in an appropriate federal court”).

47. Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 WL 3806131, 3 (Tenn. Ct. App. Nov. 13, 2009) (citing Naik v.

Naik, 399 N.J. Super. 390, 397–98, 944 A.2d 713, 717 (N.J. Super. A.D. 2008); Davis v. Davis, No. WD-04-020, 2004 WL

2924344 at 4 (Ohio App. 6 Dist. Dec. 17, 2004); In re Marriage of Sandhu, 41 Kan. App. 2d 975, 978, 207 P.3d 1067, 1071

(Kan.App.2009) (citing Moody v. Sorokina, 40 A.D.3d 14, 18–19, 830 N.Y.S.2d 399 (2007)). See also Barnett v. Barnett, 238

P.3d 594 (Alaska 2010).

48. Mathieson v. Mathieson, Civil Action No. 10–1158 2011 WL 1565529 (Apr. 25, 2011 W.D. Penn.).

49. See, e.g., Stump v. Stump, No. 1:04-CV-253-TS , 2005 WL 1290658 (N.D. Ind. May 27, 2005).

50. Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR , 2006 WL 1208010 (M.D. Fla. May 4, 2006).

51. Montgomery v. Montgomery, 764 F. Supp. 328, 330 (D.N.H. 2011).

52. Winters v. Winters, __ F. Supp. __ (M.D. Fla. May 30, 2012).

53. Id.

54. Id.

55. Montgomery, 764 F. Supp. at 330.

Thronson/‘TIL DEATH DO US PART 603

56. Davis v. Davis, 499 F.3d 590, 595 (6th Cir. 2007) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 284 (2005)).

57. Id. See also In re Schwartz, 409 B.R. 240, 246, 247 (B.A.P. 1st Cir. 2008) (“The Rooker Feldman doctrine prohibits

lower federal courts, including bankruptcy courts, from reviewing ﬁnal state court judgments”).

58. Winters v. Winters, __ F. Supp. __,(M.D. Fla. May 30, 2012).

59. Id.

60. See generally Kerry Abrams, Immigration Law and the Regulation of Marriage,91M

INN.L.REV. 1625 (2007);

David B. Thronson, Custody and Contradictions: Exploring Immigration Law as Federal Family in the Context of Child

Custody,59H

ASTINGS L.J. 453 (2008).

61. Shumye v. Felleke, 555 F. Supp. 2d 1020, 1024 (N.D.Cal. 2008).

62. Id. (quoting 8 U.S.C. § 1183a(1)(A)).

63. Id. at 1024 (citing Stump v. Stump, No. 1:04-CV-253-TS , 2005 WL 1290658 (N.D. Ind. May 27, 2005)).

64. Id. But see aggregate method adopted in Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 WL 1208010

(M.D. Fla. May 4, 2006).

65. The 2012 HHS Poverty Guidelines for a family of one is $11,170 making 125% of poverty level $13,962.

66. Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010) (citing Younis v. Farooqi, 597 F. Supp. 2d 552, 556 (D.Md. 2009);

Shumye, 555 F. Supp. 2d 1020; Naik v. Naik, 399 N.J. Super. 390, 944 A.2d 713, 717 (N.J. Super. A.D. 2008).

67. Naik, 399 N.J. Super. at 397–98, 944 A.2d at 717.

68. Id. at 397–98, 944 A.2d at 717. See also Younis, 597 F. Supp. 2d at 556 (“Assuming the plaintiff has an obligation to

mitigate her damages by seeking employment, she need not apply for every available job in order to mitigate her losses; she

needs only make reasonable efforts”).

69. See Carlborg v. Tompkins, No. 10–cv–187–bbc, 2010 WL 4553558 (W.D. Wisconsin Nov. 3, 2010) (“Defendant points

to no controlling authority supporting his assertion that plaintiff is obligated to seek work to reduce defendant’s obligation

under § 1183(a) [sic].”).

70. See generally Liu v. Mund, 2012 WL 2861886 (7th Cir. July 12, 2012).

71. Id. at *2.

72. Hrachova v. Cook, No. 5:09–cv–95–Oc–GRJ, 2009 WL 3674851, *5 (M.D. Fla. Nov. 3, 2009) (ﬁnding husband was

ordered to pay $103,197 to his ex-wife and her daughter, despite the fact that he testiﬁed that he did not have sufﬁcient ﬁnancial

resources to pay). The court also found that his inability to pay the judgment was irrelevant to the issue of liability.

73. See T

ANYA BRODER &JONATHAN BLAZER,NATIONAL IMMIGRATION LAW CENTER,OVERVIEW OF IMMIGRANT

ELIGIBILITY FOR FEDERAL PROGRAMS, available at http://www.nilc.org/document.html?id=107 (last visited Sept. 16, 2012).

74. See id. See also Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.104-193, 110

Stat. 2105 (codiﬁed at 8 U.S.C. §§ 1601–45).

75. Greenleaf v. Greenleaf, Docket No. 299131, 2011 WL 4503303, at 2 (Mich. Ct. App. Sept. 29, 2011).

76. Id. at 3.

77. Id.

78. Id.

79. Hrachova v. Cook, No. 5:09–cv–95–Oc–GRJ, 2009 WL 3674851, at *2 (M.D. Fla. Nov. 3, 2009).

80. For example, many states have enumerated factors that are considered when awarding spousal support. In Michigan, a

typical example, the factors include (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the

abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the

abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health,

(10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of

the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s ﬁnancial

status, and (14) general principles of equity. Olson v. Olson, 256 Mich. App 619, 631, 671 NW2d 64 (Mich. Ct App. 2003).

81. Chang v. Crabill, No. 1:10 CV 78, 2011 WL 2471745, at *5 n.5 (N.D. Ind. June 21, 2011).

82. Id. at 4. It is also important to note that this case included a claim for a child, who the court noted “was not even a party

to the divorce proceeding.” Id.

83. In re Schwartz, 409 B.R. 240, 249 (B.A.P. 1st Cir. 2008).

84. Id. See also Mergia v. Adams, No. 2:08–cv–1159 JAM JFM PS, 2009 WL 1604706, at 7 (E.D. Cal June 5, 2009) (ﬁnding

failure to list Afﬁdavit as asset in bankruptcy proceeding bars claim under doctrine of judicial estoppels).

85. See Immigration and Nationality Act § 213A(b)(1)(B)(2)(C) (2012).

86. See Abrams, supra note 60 (“The afﬁdavit of support creates a tangible and potentially permanent economic tie”).

87. Form I-864, supra note 2, pt. 8.

88. 8 U.S.C.A. § 1183a(a)(2) (2012).

89. See id. § 1427(a)(1).

90. See id. § 1430(a).

91. See id. § 1183a(3)(A)(i).

92. See id. § 1183a(3)(B)(ii).

93. Form I-864, supra note 2, pt. 8.

94. Hrachova v. Cook, No. 5:09–cv–95–Oc–GRJ, 2009 WL 3674851, at *3 (M.D. Fla. Nov. 3, 2009). See also Chang v.

Crabill, No. 1:10 CV 78, 2011 WL 2471745, at *5 n.5 (N.D. Ind. June 21, 2011).

604 FAMILY COURT REVIEW

95. 970 N.E.2d 1151 (Ohio Ct. App. 2012). See also Davis v. Davis, 2004 WL 2924344 (Dec. 17, 2004); Davis v. United

States, 499 F.3d 590, 593 (6th Cir. 2007).

96. See Liu v. Mund, 686 F.3d 418 (7th Cir. 2012), as amended (July 27, 2012).

97. Davis, 970 N.E.2d 1151.

Veronica Tobar Thronson is an assistant clinical professor of law and director of the Immigration Law Clinic at

Michigan State University College of Law. Previously, she was the directing attorney of the Domestic Violence Project

at the Legal Aid Center of Southern Nevada where she practiced in the areas of family and immigration law from 2002

to 2010. She also served as the director of Training and Legal Services at the New York Immigration Coalition,

a nonproﬁt umbrella advocacy organization for over 200 groups in New York that work with immigrants, refugees,

and asylees.

Thronson/‘TIL DEATH DO US PART 605