When you sponsor someone to immigrate to this country you have to make a binding promise that they won’t end up being a burden on the state.
But what happens if the sponsor separates from the immigrant? This thorny issue came before the U.S. Court of Appeals for the Ninth Circuit in June.
In the case of Erler v Erler, Yashar Erler, a wealthy realtor, sponsored his future wife, Ayla Erler. The sponsor must be able to show an income 125 percent above the federal poverty line on Form I-864 of the INA. Erler was worth more than $4.5 million, so the test was not an issue.
However, the Erlers later divorced. Under the terms of a prenuptial agreement, the wife received no support at all. She ended up living off the charity of her son who was earning less than $40,000 a year.
The court considered whether Mr. Erler was violating his support obligations. He argued he was not because the household his former wife was in was making about $40,000 which is above the poverty line.
However, the former wife argued she was alone in a “household of one” and living off hand-outs.
The district court ruled that the adult son constituted part of Ayla Erler’s household. However, the Ninth Circuit reversed the district court’s ruling, holding that Ayla’s household size comprised her alone. The justices said it could be problematic if other people were counted in the household.
The court decided that in the event of a separation or divorce between the sponsor and the immigrant, the sponsor’s duty of support is based on a household size equivalent to the number of sponsored immigrants who reside in the household rather than the total number of people living in it. In other words, the financial resources of Ayla Erler were the only factor to be taken into consideration and her son’s income did not count in the calculations.
The Ninth Circuit made it clear that under federal law neither a premarital agreement nor a divorce judgment may terminate an obligation of support contained in a Form I-864. When a sponsor signs an affidavit to support a single intending immigrant, the sponsor would reasonably expect that, in the case of separation, that the obligation of support would be based on a household size of one.
However, if a sponsor agrees to support multiple immigrants his or her obligation of support would extend to all of them following a separation.
At Peek and Toland, PLLC, we advise and help those who are sponsoring spouses to come to the United States and the spouses themselves. You can see our green card resources here.
If you need help on issues about permanent residency contact us here, or call us at (512) 399-2311.