Affidavit of Support (I-864) Enforceable Despite Pre-Nup, Divorce and Potential Marriage Fraud per California Court


Most people who immigrate through family sponsorship (and a few that immigrate through employment sponsorship) must have a sponsor that agrees to make sure they do not rely on public benefits.  This sponsorship is accomplished through signing an I-864 Affidavit of Support.  An I-864 is required from the petitioner (the person through which the family member qualifies to immigrate), but if that person does satisfy the I-864 requirements, one or more co-sponsors may also sign an I-864.

The I-864 is a contractual agreement between the sponsor and the government, which is enforced by the beneficiary (the person immigrating).

Increasingly, I-864 obligations are being used to claim payments from the petitioner (often the U.S. citizen spouse) to the beneficiary in divorce proceedings.  A recent case out of the Northern District of California sheds light on how courts may adjudicate such claims.

In Erler v. Erler, 2013 U.S. Dist. LEXIS 165814 (ND Cal Nov. 21, 2013), Ayla Erler claimed her spouse, Yasha Erler, had breached his I-864 obligation by failing to make support payments to her after their divorce.  She was living with her adult son, who was supporting her, but thought her husband should provide support commensurate with the I-864 obligation.

Yasha Erler claimed that he was not required to pay for three reasons:

  1. The couple had signed a pre-nuptial agreement that said neither party would ever owe the other support payments;
  2. The divorce decree said that neither owed the other support payments, and
  3.  believed Ayla had married him solely for immigration purposes.

The court rejected all three reasons. The pre-marital agreement was signed before the I-864, so in no event would it trump the I-864. The divorce court could not void an obligation to the federal government. The court considered the allegation of fraud to be brought too late.

But just when things were looking good for Ayla Erler, the court had a surprise in store. Although it found that Yasha was bound by the I-864, Yasha’s lack of payment was not a breach of his I-864 obligation because Ayla was being supported at or above the I-864 obligation amount by her son.  Requiring Yasha to pay despite the fact that Ayla was not living below the poverty level prescribed in the I-864 would be a “windfall”.

The takeaway? Affidavits of Support almost never die, but they can fade away.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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