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Family Duty and the I-864 Affidavit of Support


Sponsor an immigrant relative to come to the U.S., and you are undertaking much more than just some extra paperwork.  By signing the I-864 "Affidavit of Support" you are contracting to keep that person from ever becoming a "public charge."  Specifically, you have a duty to guarantee the immigrant support at 125% of poverty or else the immigrant can sue you for support--as can any government agency that provided benefits to the immigrant.  This duty ends only once the immigrant becomes a citizen, leaves the country permanently, is credited with 40 quarters of employment, or dies. 

Litigation about this duty has been sparse, even though the I-864 has been used by many thousands of immigrant families since 1996.  However, a recent holding by the Seventh Circuit Court of Appeals may spur more immigrants to sue for support. 

In Liu v. Mund, the Seventh Circuit held that the immigrant has no duty to mitigate damages.  In this case, Liu, a Chinese immigrant sued her ex-husband in federal court for support based on the I-864 that he signed when sponsoring her for a green card years earlier.  The district court where Liu brought suit had conditioned Liu's support on her own efforts to support herself. On appeal, Mund argued that this was appropriate because Liu owed him a common-law duty to mitigate damages.

However, Judge Richard Posner writing for the appellate court found that Liu had no legal duty to seek work or mitigate damages.  Rather, because the sponsor's duty to support the immigrant was "imposed for the benefit of federal and state taxpayers and of the donors to organizations that provide charity for the poor" there is no justification for lessening the sponsor's burden on any grounds not specified in statute. 

Most immigrants will never bring such lawsuits for the simple fact that most immigrants are already supported or supporting themselves at more than 125% of poverty ($13,300 per year for one person). Per Posner, immigrants have "a strong incentive to seek employment, quite apart from having any legal duty to do so in order to secure the meager guaranty."  Furthermore, while immigrant and sponsor are living in one household, provision of housing and food count towards support.

Future litigation will most likely come, like the Liu case, out of divorce.  Divorce often leaves part of a family in poverty, usually the women and children.  According to this recent report by the Census Bureau, 27 percent of women who divorced in the past 12 months had less than $25,000 in annual household income.  For an immigrant mother who falls in that low income category, if the ex-husband had sponsored both the mother and at least one child, the amount of support the mother and child could claim from the ex-husband under the I-864 could be greater than her earning potential.


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