The 9th Circuit recently issued an interesting decision concerning an immigrant sponsor’s continuing obligations to support a sponsored immigrant, based on the I-864 Affidavit of Support that is submitted in the immigration process. The decision is called Erler v. Erler (No. 14-15362). Basically, the Court ruled that the Affidavit of Support obligation is enforceable, regardless of pre-nuptial agreements and divorce decrees. The decision also limited the sponsor’s obligation based on the originally sponsored household size.
As a condition of family based immigration, immigrant sponsors must complete an affidavit of support which basically ensures that the immigrant will not become a public charge. The sponsors agrees to provide “any support necessary to maintain [the immigrant] at an income that is at least 125 percent of Federal Poverty Guidelines for [their] household size.” Once executed, the affidavit becomes a contract between the sponsor and the U.S. Government, for the benefit of the sponsored immigrant, and of any Federal, State or local governmental agency or private entity that administers any “means-tested public program.” 8 C.F.R. § 213a.2(d).
The Affidavit binds a sponsor until: a.) the immigrant become a U.S. citizen; b.) has worked 40 quarters under the SSA; c.) no longer is a permanent resident and has departed the U.S.; d.) becomes subject to removal, but then adjusts status in removal; or e.) death. The affidavit clearly says divorce does not terminate the obligation.
In Erler, a prenuptial agreement existed, which said neither party would be entitled to alimony or support in the event of divorce. The Erlers divorced, and the judgment was based on the pre-nuptial agreement. Subsequently, Ms. Erler, the immigrant, went to District Court to enforce the Affidavit of Support.
The 9th Circuit acknowledged that the Affidavit of Support is enforceable, despite the pre-nuptial agreement and divorce decree. The decision is largely based on a 2012 decision in the 7th Circuit, Liu v. Mund, which is cited multiple times. The rest of the decision discusses how to calculate the obligation, and focuses on household size. The larger the household size, the greater the sponsor’s obligation, and so this is an important determination. The calculation of the actual obligation is a question several courts have wrestled with, and the Erler decision leaves open a number of questions, while answer a couple key ones. Most importantly, the 9th with this decision confirms that the Affidavit of Support is enforceable.
The Affidavit of Support obligation should therefore be addressed in divorce proceedings, if applicable. One pro-active solution may be to make a naturalization application a condition of any settlement. Most immigrants can naturalize five years after becoming a permanent resident, if they’ve been living in the U.S. and have no criminality. Another may be to assess how many quarters have been worked at the time of the divorce.