Affidavit of Support Issues

By Ally Bolour, Esq. Law Offices of Ally Bolour, APC

A recent CA family court ruling has set a precedent within the intersection of family law and immigration. The issue in the case had to do with the Affidavit of Support – which is a required document in most immigrant family petitions.

In Re Marriage of Kumar was published on 7/29/2017. A party to the case was Ms. Kumar, a foreign national (FN) in divorce proceedings. She had asked for and was denied financial support from her US citizen petitioner husband, Mr. Kumar. Upon appeal, the court disagreed with the judgment and made a ruling that is now precedent in California. The court held in part: “an I–864 affidavit is an enforceable contract, and a sponsored immigrant has standing to bring an action to enforce it in state court”. The court further said that an immigrant spouse had no duty to mitigate damages.

What this means is that when a family immigrant visa petitioner, usually a US citizen files for a green card for his/her family member, that pesky Affidavit of Support Form I-864 – has real meaning and is an enforceable document in the state of California.

For example, if after receiving his/her green card, a foreign national (FN) divorces his/her spouse, the US citizen spouse will still be obligated under the law, to financially provide for the FN, at least under the terms of the Affidavit of Support, in CA family courts. In fact the FN doesn’t even have to file any petitions in court to seek the enforcement of the Affidavit of Support; the enforcement will be automatic as a result of the precedent decision under In Re Marriage of Kumar.

So if after separation, the FN is not working, the US petitioner of the visa application is obligated to provide him/her with funds of at least 125% of the federal poverty guidelines (please see Form I-864P available on http”// depending on the family size. The payments may be significant for a large family with limited resources.

As of this writing, we have revised our retainer agreement to include waivers from both parties in cases of dual representation. These waivers will include specific language regarding the newly precedent law coming from In Re Marriage of Kumar. The purpose of providing these waivers to clients is to explain the law to clients and obtain their confirmation that they understand the requirements.

Please feel free to call our LA office at 323-857-0034 to schedule a time if you have any questions on this issue or any other immigration related matter.