Worries About Affidavit Of Support

BY ALLAN WERNICK

Q. After sponsoring my wife and her children for permanent residence, I am divorcing her. Will I be responsible for any public assistance she receives? In May 2004, I married a woman who has three children. I filed petitions and affidavits of support for all four. Once they got their green cards, it became apparent that my wife married me solely to get legal status. Now that I am divorcing my wife, must I pay back the government for any public monies she receives? -- Neil Spun, Orinda, Calif.

A. In family-based immigration cases, the law considers the affidavit of support, United States Citizenship and Immigration Services Form I-864, a binding legal contract. Still, it's unlikely that you will end up paying for any support your wife and her children receive. Your obligation under the affidavits is to support your wife and her children and to reimburse government agencies for certain "means-tested" benefits they receive. Means-tested benefits are benefits people receive based on low income. The obligation remains in place until your wife works 10 years or becomes a U.S. citizen. Arguably, your wife could sue you for support and a government agency could sue to recover for benefits your wife and her children receive.

To my knowledge, however, no one has successfully enforced this contract; so no one knows if it is really enforceable. While enforcement might be possible, in my view, it would be very difficult. If you could prove that your wife married you just to get a green card, that might be a good defense.

INCOME NEEDED FOR AFFIDAVIT OF SUPPORT

Q. Can you explain the rule that I must be able to support my husband at 125 percent of the federal poverty guidelines in order for him to get permanent residence? Where can I get more information about this requirement? --Name Withheld, Fort Lauderdale, Fla.

A. In most family-based immigration cases, the petitioner (in this case, you) must prove that he or she or another party earns 125 percent of the federal poverty guidelines for the petitioner's household. The U.S. Department of Health and Human Services publishes the poverty guidelines each year. Government agencies use the guidelines to decide whether an individual's income is low enough to qualify him or her for certain means-tested public benefits. How much income you need depends on the size of your family. In your case, you need 125 percent of the poverty level for a family of two. For 2006 in the 48 continuous states, the poverty level is $13,200. One hundred and twenty-five percent of that amount is $16,500.

If you don't earn enough, you can use your husband's income to make up the difference. To use his income, he must have lived with you for at least six months, and you must prove that the income is likely to continue.

Another way to prove that you can support your husband is to use your assets to make up the difference. The value of the assets must be five times the difference between your earnings and the $13,200. You must be able to convert the assets to cash within one year. Examples of assets are money in bank accounts, stocks or mutual funds, certificates of deposit and real estate. The real estate MAY NOT be your primary residence.

For the 2006 poverty guidelines, go to www.uscis.gov/graphics/formsfee/forms/files/I-864p.pdf. For more information, go to www.uscis.gov/graphics/howdoi/affsupp.htm, and click on "How Do I File an Affidavit of Support?"

Send questions and comments to Allan Wernick, P.O. Box 536500, Orlando, FL 32853. His Web site is: www.allanwernick.com.

Allan Wernick is an attorney and a professor at Baruch College, City University of New York (CUNY). He directs CUNY's Citizenship and Immigration Project. He is the author of "U.S. Immigration and Citizenship - Your Complete Guide, 4th Edition.")

© 2006 by Allan Wernick