I-864 Affidavit of Support: Calculating What Is Owed to a Beneficiary
Contributor: Van T. Doan
U.S. citizens and lawful permanent residents who petition for a beneficiary to immigrate to the United States must promise to provide adequate financial support for the beneficiary so that he or she does not become a public charge. This promise is made by executing the Form I-864 Affidavit of Support. This Affidavit is a binding contract between the petitioner and the U.S. government, but it is settled law that the foreign national beneficiary may also sue the petitioner for support under this document. This is true even after the relationship that made the foreign beneficiary eligible to immigrate has been terminated such may be the case of marriage based immigration petitions.
The question then arises: if a foreign national sues the United States citizen or lawful permanent resident sponsor for support pursuant to the I-864 affidavit of support, how is that support calculated?
How Much Support is Owed?
The petitioner on behalf of the foreign national beneficiary promises to maintain him or her at 125% of the Federal Poverty Guidelines. The sponsor will be held personally liable if he or she fails to maintain support, and may be sued by either the beneficiary or by a government agency that provided means-tested public benefits to the foreign national spouse.
What constitutes 125% of the Federal Poverty Guidelines depends in part on the size of the household the foreign national resides in. A federal court held in Erler v. Erler, No. CV-12-02793-CRB, 2013 U.S. Dist. LEXIS 165814 (N.D. Cal. Nov. 21, 2013), that the household size for a foreign national beneficiary who lived with her adult son was two, and that the son's income would be counted toward the household income for purposes of calculating the support his mother received from her the petitioner. This was so even though the mother's household size for the purpose of receiving food stamps was one. The court said that to do otherwise suggested a foreign national beneficiary could become part of a millionaire's family and still insist upon support from the petitioner.
The case of Villars v. Villars, 305 P.3d 321 (2013) provides guidance for calculation of support in situations in which the foreign national moves to a different state. Because support is designed to keep the recipient from becoming a public charge, the Villars court held that it is correct to take into account the standard of living in the support recipient's new state.
What is Included in the Foreign National Beneficiary's Income?
In order to determine the difference between 125% of the Federal Poverty Guidelines for the foreign national's household size and the foreign national's income, we must know what to include in that income. It is clear from Erler and Villars that benefits received may be imputed to the foreign national beneficiary as income. The case of Younis v. Farooqi, 597 F.Supp.2d 552 (2009) is in line with this conclusion, and also affirms that alimony received should offset the sponsor's obligation under the Affidavit. However, Younis makes clear that child support, which is an obligation owed to the child, not the parent, cannot be used to offset the duty of support to a foreign national spouse under the Affidavit of Support.
Is There a Duty to Mitigate?
In a state law action for spousal support, a family court judge would almost definitely refuse to award support to a spouse who could work and support himself or herself, but refused to do so. Does such a duty to mitigate exist for a foreign national beneficiary under the I-864 Affidavit of Support?
Maybe. Courts seem to be split on this issue. The court in Younis did not have to address this issue because the parties agreed that there was a duty to mitigate, the court in Naik v. Naik, 944 A.2d 713 (2008) suggested there might be such a duty, and the court in Liu v. Mund, 686 F.3d 418 (2012), found no duty to mitigate. The variation in the case law may provide some hope for sponsoring petitioners who hope to reduce their obligations under the Affidavit of Support. However, sponsors should not depend on the success of an argument that they should not be expected to support a foreign national beneficiary because that spouse should be self-supporting.
Whether you are a foreign national seeking support from a petitioner/sponsor, or a petitioner/sponsor seeking to avoid or reduce an obligation of support under an I-864 Affidavit of Support, you should have the guidance of an experienced immigration and family law attorney.
To learn more about the obligations imposed by Form I-864, contact Howard County, MD immigration lawyer Van T. Doan.
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