A Look at the Affidavit of Support

Money Can’t Buy Love, But It Does Matter When Bringing a Loved One to the U.S.

Poets and pop singers often downplay the importance of money when speaking of love, but the drafters of our U.S. immigration laws are not so sentimental. Indeed, if you want to sponsor your foreign national spouse for a green card, you will need to show that you can support your true love. The rational for this requirement is that it is in our public interest to assure that immigrants coming to the U.S. will not go on welfare and, thus, be a burden on society. The instrument the government uses to help prevent the admission of someone who would become a public charge is called an Affidavit of Support.

What is an Affidavit of Support?

The Affidavit of Support is a binding contract between the sponsor of a green card applicant and the U.S. government. If you are sponsoring your wife or husband for a green card, you most likely need to complete this form. When completing this form, you will be required to show that you have sufficient income (and in some cases assets) to demonstrate that you can maintain your spouse and other members of your household at 125% of the Federal Poverty Guidelines (“Poverty Guidelines”). The Poverty Guidelines are updated each year. The 2008 Poverty Guidelines list the poverty level, at the 125% calculation, for a family of four at $26,500.

Does a Sponsor Face Potential Liability Associated with the Submission of an Affidavit of Support?

Marriage can, and should, be an uplifting and rewarding experience, but it comes with obligations, especially when one partner is sponsoring the other for a green card. Sponsors should be aware that the submission of an Affidavit of Support creates serious obligations. For example, if, after receiving a green card, your spouse later applies and receives certain Federal, State, or Local welfare benefits, the agency making the payments will have the right to seek reimbursement from you, possibly in a lawsuit.

Moreover, the obligations of the affidavit of support will not end in the event of a divorce. Under the terms of an Affidavit of Support, the sponsor is obligated to guarantee that he or she will support the immigrant spouse at no less than 125% of the Poverty Guidelines. Pursuant to 8 U.S.C. § 1183a(a)(1)(B), the Affidavit of Support is legally binding and “enforceable against the sponsor by the sponsored alien,” as well as by government agencies. Some courts have found that this statute means that in divorce proceedings, the immigrant will be entitled to receive support payments that will maintain the immigrant as specified under the Affidavit of Support.

What if the Sponsor Does Not Earn 125% of the Poverty Guidelines?

All is not necessarily lost if you are a poor (under government standards) but faithful and loving spouse of an intending immigrant. Meeting the income requirements for sponsorship can be especially difficult for student citizens who have not yet had a chance to earn full-time wages. If your income is too low, you may be able to use your assets to help meet the required support obligations; however, the formula used to determine if your assets are sufficient is very strict and may or may not prove helpful. You may also ask a friend or relative to be a joint sponsor. Only U.S. citizens, nationals, or permanent residents may be joint sponsors. Joint sponsors must be at least 18 years of age and must be domiciled in the United States, or its territories or possessions. A joint sponsor must agree to all of the Affidavit of Support obligations discussed above. The joint sponsor may choose to sponsor only certain family members on the Affidavit of Support, but must individually meet the income requirements for support of those individuals. A second joint sponsor may be used to sponsor the remaining household members. The government will permit no more than two joint sponsors. In all cases, the petitioning spouse must submit an Affidavit of Support, regardless of whether there is a joint sponsor or two.

How Long Does the Affidavit of Support Obligate the Sponsor to its Terms and Conditions?

The terms of the Affidavit of Support can bind the sponsor for a very long time. It continues to be enforceable until one of the following occurs:

• The sponsor dies;
• The sponsored immigrant dies;
• The sponsored immigrant becomes a U.S. citizen;
• The sponsored immigrant loses his or her green card status; or
• The sponsored immigrant has completed 40 qualifying quarters of work in the United States.