Affidavit of Support under Section 213A of the Immigration and Nationality Act (INA) is required for most family-based and some employment-based immigrants to show that they have adequate means of financial support and are not likely to become public charge. Immigrants who are deemed likely to become public charges may gain admission to the United States if a sponsor signs United States Citizenship and Immigration Services Form I-864, Affidavit of Support, thereby promising to maintain the sponsored immigrant at no less than 125% of the Federal Poverty Guidelines for the immigrant’s household size. See 8 CFR § 213a.2(c)(2). The Sponsor’s promise to maintain the immigrant is intended not only to protect the immigrant from poverty, but to protect the Government from a public burden.
Form I-864 is a “legally binding contract” between the Sponsor and the U.S. Government, which can be enforced by the sponsored immigrant. Note that the Sponsor’s support obligation begins not just by signing the Form I-864. It begins when the immigration officer or the immigration judge grants the immigrant’s application for admission as an immigrant or for adjustment of status on the basis of an application for admission or adjustment that included an Affidavit of Support. See 8 CFR § 213a.2(e)(1).
As stated in the regulations there are only five (5) events which could end Sponsor’s obligation. It is important for the Sponsor to note that his/her obligation ends in the event the sponsored immigrant: (1) becomes a U.S. citizen; (2) works (or can be credited with 40 quarters) as defined by the Social Security Act; (3) no longer has lawful permanent resident status and permanently leaves the United States; (4) obtains in a removal proceedings a new grant of adjustment of status as a relief from removal; or (5) dies. See 8 CFR § 213a.2(e)(2)(i). Note that divorce does not terminate Sponsor’s obligations under Form I-864.
Sure enough, divorce does not terminate sponsor’s obligations under this Form I-864. However, what happens when the sponsored immigrant household size changes after divorce and the household income matches or exceeds 125% of the Federal Poverty Guidelines. Does that cut-off Sponsor’s obligation under Form I-864?
United States District Court for the Northern District of California addressed this specific issue in the case of Erler v. Erler, CV-12-02793-CRB, 2013 WL 6139721, at (N.D. Cal. Nov. 21, 2013). In this case, the plaintiff-beneficiary, a divorced sponsored immigrant (immigrant), alleged that her former husband, defendant-sponsor, breached his obligation under the Affidavit of Support that he signed as part of her naturalization process by failing to maintain her income at 125% of the Federal Poverty Guidelines since their separation. After separation, the immigrant in Erler lived with her adult son, whose income – if imputed to her – would have placed her above 125% of the Federal Poverty Guidelines. Because the immigrant was receiving food stamps as a one-person household, she argued that treating her and adult son as a two-person household would be contrary to the Congressional intent and public policy.
Agreeing with the defendant-sponsor’s argument, the Court agreed that Government’s definition of household size varies depending on the context in which it is to be applied. Per the District Court, the Department of Health and Human Services, which establishes the Federal Poverty Guidelines, does not define “family” or “household,” but instead defers to the various federal programs that apply the Guidelines, so that the program in question can define “household” in a way that best serves its needs.
Although 8 CFR Section 213a.1 does define “household size,” it is limited only for the express purpose of determining whether the intending sponsor’s income is sufficient to support the intending immigrant. 8 CFR Section 213a.1 does not define how to calculate the post-divorce household size. Appl