A Federal Court Addresses the Debate About a U.S. Citizen’s Obligations to Financially Support a Non—U.S. Citizen Former Spouse Under an Affidavit of Support

By October 14, 2013Articles

The Seventh Circuit Court of Appeals recently issued a landmark decision regarding a sponsor’s obligations under an Affidavit of Support. In Liu v. Mund, the court held that following a divorce, a U.S. citizen who sponsored his former spouse for permanent residency in the U.S. remains obligated to support his former spouse at 125% of the federal poverty level, and that the non-U.S. citizen former spouse has no duty to mitigate damages by attempting to secure employment.

When a U.S. citizen sponsors his or her spouse for permanent residency in the U.S., the U.S. citizen spouse is required to file an Affidavit of Support (Form I-864) with the U.S. government. The Affidavit of Support is a legally binding contract between the U.S. citizen sponsor and the U.S. government, by which the U.S. citizen guarantees that the non-U.S. citizen will not become a public burden. By entering into the agreement, the U.S. citizen agrees to support the non-U.S. citizen at a level of at least 125% of the federal poverty level. This obligation continues until one of a few specified events occur, including death of the U.S. citizen sponsor, death of the non-U.S. citizen beneficiary, naturalization of the beneficiary, and the beneficiary having worked for 40 qualifying quarters. Divorce is not one of those terminating events. Because divorce is not a terminating event, a U.S. citizen remains obligated on the Affidavit of Support, and therefore remains obligated to financially support the non-U.S. citizen after the couple divorces.

Over the years, the guarantee made by the U.S. citizen spouse in the affidavit of support has been used in family courts as a ground for the non-U.S. citizen spouse to receive an award of maintenance (alimony). The U.S. citizen spouse has argued that the Affidavit of Support is a private contract between the U.S. citizen and the U.S. government, and that the non-U.S. citizen cannot claim any benefits pursuant to the Affidavit of Support. Many courts have considered the fact that the U.S. citizen made this promise of support in determining the amount of maintenance or alimony the non-U.S. citizen spouse should receive. However, in Liu v. Mund, the Seventh Circuit Court of Appeals addressed the debate and took it one step further.

In Liu v. Mund, the couple divorced and the family court awarded the non-U.S. citizen an amount of monthly maintenance, but the award included a condition that the non-U.S. citizen demonstrate monthly her continued efforts to seek employment. In response, the non-U.S. citizen filed suit against the U.S. citizen in federal district court, on the basis that the Affidavit of Support unconditionally requires the U.S. citizen to support her. The district court disagreed.

However, the Seventh Circuit Court of Appeals reversed, finding that the Affidavit of Supports does not include a condition that the non-U.S. citizen attempt to secure employment. The Court of Appeals noted that the Affidavit of Support specifies the events that terminate the U.S. citizen’s support obligations, and neither divorce nor the failure to seek employment are such terminating events. Accordingly, the court found that under federal law, the non-U.S. citizen has no duty to seek employment in order to receive support at a level of at least 125% of the federal poverty level from the sponsor under the Affidavit of Support.

If you have any questions about a sponsor’s obligations under an Affidavit of Support, or other questions about family-based immigration, please contact an immigration attorney at Paule, Camazine & Blumenthal, PC.

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