I-864 Affidavit of Support: Are There Defenses to Enforcement?
Contributor: Van T. Doan
The I-864 Affidavit of Support is a contract in which a sponsor agrees to financially support a foreign national being admitted to the United States. As we've noted in previous blog posts, both the government, and the sponsored beneficiary, can take legal action against a sponsor who has failed to provide support as agreed to in the Affidavit of Support. Sponsors who have signed, or are considering signing, an Affidavit of Support may wonder if there are any defenses to enforcement of this contract, especially if they signed on behalf of a fiance(e) or spouse and the marriage was terminated.
There are several possible arguments for why an Affidavit of Support shouldn't be enforced, but anyone attempting to defend against enforcement should be aware that they are facing an uphill battle.
Arguments Against Enforcement of an I-864 Affidavit of Support
A common argument sponsors make, and one that this blog has previously addressed, against a beneficiary attempting to enforce an Affidavit of Support is that the sponsored alien waived his or her rights to enforce the contract via a pre- or postnuptial agreement.
Another defense a sponsor may present is that the contract is void because the sponsor was defrauded into signing the Affidavit of Support. A typical scenario in which this argument would come into play involves an alien who pretended interest in marriage in order to get a green card or become a U.S. citizen. If, in fact, the alien never truly intended to remain married to the sponsor, and was only using him or her to gain status as an immigrant, there may be an argument for fraud. This assumes, of course, that the sponsor was unaware of the alien's true intent.
A sponsor might attempt other common defenses to enforcement of a contract to nullify the obligations imposed by the Affidavit of Support. These include the position that the Affidavit itself is an adhesion contract. An adhesion contract is a contract between two parties with grossly disparate bargaining power. In this case, the U.S. government holds all the cards: if the sponsor refuses to sign the Affidavit, the government loses nothing; however, unless the sponsor signs the affidavit, he or she faces potentially indefinite separation from a family member. In essence, the sponsor has little choice but to sign the contract.
A sponsor might also argue that the Affidavit/contract is too vague, in that the term of the support it requires is indefinite, perhaps lasting decades. Since the obligation of support only ends on the occurrence of one of five triggering events, the term of this “contract” could potentially last the rest of the sponsor's life. Similarly, if the Affidavit is to be interpreted as a contract, a sponsor might argue that the duty of support is referred to ambiguously “within the four corners of the contract,” the Affidavit itself, which is all the sponsor may have had to review before signing.
What You Should Know Before Signing an Affidavit of Support
Although the I-864 Affidavit of Support is enforceable as a contract, nowhere in the document itself is it referred to as such. It's very possible that a court would not treat the Affidavit as it would a private contract, and therefore would not allow the sponsor to raise the contract defenses of fraud, adhesion or vagueness to avoid obligations under the Affidavit.
Whether you are considering signing an Affidavit of Support on behalf of a family member, or have already signed one. you should get the advice of an experienced Maryland immigration attorney. Although there may be defenses to enforcement, you should not assume they will be successful. Your best chance of success comes through the help of a knowledgeable advocate. To learn more about possible defenses to enforcement of Form I-864, contact Howard County, MD immigration lawyer Van T. Doan.
Read more about the I-864 Affidavit of Support: