How to end sponsorship of immigrant
How to end sponsorship of immigrants is the most frequently asked question when a visa petitioner is divorcing the immigrant.
Before getting into how to end sponsorship of immigrants, let clarify who is the sponsor and why the sponsor is necessary for bringing a foreign citizen into the country.
The sponsor is one who signs an affidavit of support, Form I-864. The purpose of such an affidavit is to assure that the USA citizen who petitions to bring someone in the USA takes responsibilities that the immigrant would not be burdensome for the society. A sponsor could be a fiancée, husband, wife, child, parent. If the visa petitioner’s income is not sufficient, a Joint sponsor can come to play. A joint sponsor could be a family member as well or friend The main duty of the sponsor is to maintain immigrant’s income at 125% of Federal Poverty Guidelines.
The general 5 answers on how to end sponsorship of immigrant are:
1. When the immigrant becomes a citizen.
2. The immigrant credited w/ 40-quarters of work.
3.Abandons residency and departs U.S.
4.Deported and got a new sponsor.
5.Dies.
How to end sponsorship of immigrants in a divorce?
The basic answer is neither divorce or separation terminates the sponsorship support duty.
Moreover, unlike regular spousal support which terminated upon re-marriage of supporting spouse, sponsorship of an immigrant does not terminate upon even remarriage for that matter.
When a sponsor signs an affidavit of support, I-864 , she/he enters with a contract with the USA government.
The Beneficiary of this contract is an immigrant, as a 3rd-party beneficiary with standing.
The phrase “with standing means “ can sue on the breach of the contract.
The I-864 is an enforceable contract and could be enforced by the beneficiary or in theory the government. Affidavit of Support allows the USA government to sue the sponsor for reimbursement of government benefits paid to the immigrant. Although enforcement has many special challenges.
Enforcing the Affidavit of Support, Form I-864.
The first challenge is that this enforcing the Affidavit of Support is a “federal law issue” so an attorney needs to go to federal court. Another interesting point is that it shall be an action in civil court. The question is then what damages may be recovered? Usually, it is 125% FPG (household size) per month minus the actual income of the immigrant.
How to end sponsorship of immigrant in divorce asserting some defenses.
The former spouse of an immigrant might try to argue that the marriage was fraudulent. So far, the case law shows that such a defense is not satisfactory for the court. If the sponsor has evidence of fraudulent
inducement, “he/she has borne the risk of being fraudulently induced into sponsoring someone, and must satisfy his financial obligations regardless.”
Another challenge of How to end sponsorship of immigrant is that Immigration attorneys don’t handle civil litigation. Civil matter attorneys and divorce attorneys hardly ever have immigration expertise. You need both to handle these cases.
Understanding Joint Sponsors and Their Responsibilities
In addition to the primary sponsor, a joint sponsor can also be involved in the sponsorship of an immigrant. A joint sponsor is someone who agrees to share the financial responsibility of the immigrant if the primary sponsor’s income is insufficient. This person can be a family member or friend and must meet the same income requirements as the primary sponsor. It’s important to understand that the responsibilities and obligations of a joint sponsor are the same as those of the primary sponsor, and these obligations remain in effect until the sponsorship ends under the specified conditions.
The Role of Divorce in Sponsorship
It’s crucial to understand that divorce does not terminate the financial obligations of a sponsor under the Form I-864 Affidavit of Support. The responsibilities continue regardless of the marital status of the sponsor and the immigrant. This means that even after a divorce, the sponsor is still legally obligated to ensure that the immigrant’s income remains at least 125% of the Federal Poverty Guidelines.
Potential Legal Actions for Enforcement
If a sponsor fails to meet their obligations under the Form I-864, the immigrant can take legal action to enforce the terms of the affidavit. This typically involves filing a lawsuit in federal court, as the enforcement of the Affidavit of Support is a matter of federal law. The immigrant can sue for damages equivalent to the difference between their actual income and the 125% Federal Poverty Guidelines threshold.
Steps for Sponsors to Mitigate Financial Obligations
Sponsors can take certain steps to potentially mitigate their financial obligations, including:
- Documenting the Immigrant’s Income: Keep detailed records of the immigrant’s income and any government benefits they receive. This information can be crucial if you need to calculate the exact amount of financial support you are required to provide.
- Seeking Legal Advice: Consult with an attorney who specializes in both immigration and civil law to understand your obligations and any potential defenses you might have.
- Monitoring the Immigrant’s Work Quarters: Track the immigrant’s work history to determine if they have achieved the 40 work quarters (approximately 10 years of work) required to end the sponsorship obligation.
Legal Defenses Against Enforcement
While challenging the enforcement of the Affidavit of Support can be difficult, there are some potential defenses that a sponsor might raise, including:
- Fraudulent Inducement: Although courts have generally not been receptive to fraudulent inducement defenses, presenting clear and convincing evidence that the immigrant committed fraud to obtain sponsorship might be a viable defense in some cases.
- Material Change in Circumstances: Arguing that there has been a significant and material change in circumstances that were not anticipated at the time of signing the affidavit. However, this defense is rarely successful.
Legal Representation and Specialization
Given the complexity of these cases, it’s essential to work with attorneys who have expertise in both immigration law and civil litigation. Divorce attorneys may not have the necessary immigration law experience, and immigration attorneys might not be familiar with civil litigation processes. Finding legal counsel that can navigate both areas is crucial for effectively managing and potentially terminating the sponsorship obligations.
Conclusion
Terminating the sponsorship of an immigrant is a complex and often challenging process that involves federal law and specific contractual obligations under the Form I-864 Affidavit of Support. Understanding the responsibilities, potential legal actions, and defenses is critical for sponsors facing this situation. Consulting with specialized attorneys and keeping detailed records can help manage these obligations effectively.
For further assistance and legal advice tailored to your specific situation, contact a qualified attorney who can guide you through the complexities of ending sponsorship obligations under California law.
714-390-3766
