[This message has been edited by Gary Bala]
I-864 Affidavit under the 1996 IIRAIRA Law.
Nearly all the comments on the prior thread
regarding the rules for this affidavit are correct.
It is however a complicated area.
Under current rules and regulations, INA & CFR,
the Affidavit is a serious contractual obligation
which should not be undertaken lightly. Congress
has made it quite clear that where government and private agencies
pay obligatory means-tested welfare benefits, the "qualifying sponsor"
(you) can be liable for contractual reimbursement for any
monies paid to the "sponsored immigrant".
I would add a few comments for clarification,
some of which go beyond the basic "black-and-white"
rules.
1. Yes, technically, the language of the affidavit allows
the "sponsored immigrant" legal standing to sue the sponsor
in court directly for support obligations of 125% of HHS federal poverty
guidelines. As a practical matter, however, I do not know
of a reported case where the immigrant hired a lawyer and successfully
litigated this claim to conclusion over weeks and months to recover
daily support money. Most immigrants really don't have the extra time
and money to do this, especially if they don't even have daily living money
in the first place.
As a practical matter, the way this "right to sue" is enforced is for
the immigrant to apply for and collect public means-tested welfare
benefits by a government or private agency, which then makes a claim for
reimbursement for qualified monies paid to the immigrant.
It is done in writing by the agency to the sponsor, after which he
has 45 days to respond with payment or offer of a payment plan.
Otherwise, he can be subject to contractual judgment lien in court.
2. Since the advent of the 1996 Affidavit, I am sure that some such claims
for reimbursement have been made. But my research does not show very
many claims actually made. I believe that very few claims thus far have
actually been made.
3. One reason for this is the 5 year bar to federal means tested welfare
benefits. The welfare amendments in 1996 effectively bar most immigrants
from even qualifying for federal means tested benefits for 5 years. By that
time, immigrant have either left for home or enabled themselves to be
self-supporting or re-married to someone who can support them.
Keep also in mind that the Affidavit only applies to create a sponsor's
liability for "public means-tested welfare" benefits. If for example an immigrant
manages to collect other types of benefits such as one-time emergency cash assistance,
hospital assistance, school loans, food stamps, Medicaid, state help programs, etc.,
there is no liability for the sponsor.
4. Some immigrants such as "fiancees" who abscond under a I-134
affidavit prior to marriage have a very precarious immigration status,
and are not likely to make themselves a deportation target by applying for
public benefits with a government agency.
5. To my knowledge, the post 1996 Affidavit has not yet been challenged in
federal court for enforceability and validity. At some point, it may need to be
challenged. I myself may be interested in handling such a challenge when the
appropriate case comes along.
Possible challenges, some better than others, are constitutional such as
discrimination against poor sponsors under equal protection
(that is, poor people who cannot show 125% of income guidelines cannot sponsor
immigrants). (Keep in mind that rules allow joint sponsors and co-sponsors
for people with low income, so this challenge may not the strongest.)
Other challenges are contract defenses such as adhesion nature of the contract,
lack of consideration, impossibility to perform or misunderstanding
of potential liability.
6. Some lawyers have suggested ways for the sponsor (you) to protect yourself
from liability under the Affidavit. One way is a "save harmless and indemnity
agreement" whereby the immigrant lady signs a private contract with you to
re-imburse you if she is paid government money which the government makes
you pay back to them. Another way is for a joint or co-sponsor to sign a private contract
to re-imburse you if the lady collects government money which the government
makes you pay back to them. Needless to say, these methods are all untested.
By all the above, I do not mean to suggest that the Affidavit should
be lightly regarded. It shouldn't. It behooves anyone to be cautious
prior to signing it.
Regards.
PS I have an excellent 15 page article here (not found on the Internet)
called "I-864 Affidavit of Support Requirement" updated 2004, written by
Edward G. Shulman, the leading lawyer in this area with American
Immigration Lawyers Assn. Please contact me if you would like a copy.
