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I'm a US Citizen and have petitioned for my parent through form I-130. Part of the process is filling out the affidavit of support, form I-864. Due to reasons, I'm not comfortable signing a document that says I'm financially responsible for this person for the rest of my life (this person is not going to become a US citizen or stay here to fulfill the work requirement, so that leaves me with no option but life-long support). Yet, I'm in a sticky situation where I'm trying to avoid totally backing out.

So, I'm wondering if there's a legal document we can draft between the two parties wherein the immigrant waives his/her right to act on the affidavit of support (aka sue me for financial assistantship).

Additionally, there is going to be a co-sponsor on the affidavit because I don't meet the income requirements. In this case, if the immigrant sues for financial assistantship, do the two people on the affidavit share the burden equally? Or, will I, as the petitioner, be mainly responsible?

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    Just on principle, it seems unlikely that the law would allow or enforce such a waiver, since it would defeat the whole purpose of I-864. Also, even if your parent could waive this right, what would they do if they run out of money? They could go on public assistance, and then, according to the terms of I-864, the government can sue you for the cost of that assistance, so you're back in the same position. The government is certainly not going to waive their right to do that. – Nate Eldredge May 10 at 5:30
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    It sounds like you really need to consult a lawyer (your own lawyer, not your parent's). – Nate Eldredge May 10 at 5:31
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    Also, you would by lying on an affidavit which carries jail time – Dale M May 10 at 8:53
  • Is there someone else able to provide financial support for them? If so, maybe you could try to come to an agreement with that person that they will pay/reimburse you if needed. You would still be responsible to the US government. Of course, this requires you have a rich relative/friend who is willing to sign up. – Reinstate Monica May 10 at 15:12
  • It's not accurate to say that you're "financially responsible" for this person. This person can accrue millions in debts and you would not be liable for a cent of it. You only have an obligations to supplement this person's income up to the poverty level if their own income doesn't reach it. – user102008 Jun 14 at 2:42
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The right of the alien (also the government) to sue for enforcement of the terms of the contract is statutorily guaranteed under 8 USC 1183a, it is open to the alien, and there is no express provision for waiving that right. However, there is case law. In Blaine v. Herrell, the case involving waiver of legal support rights via a premarital agreement, and whether an I-864 affidavit nullifies the right to waive such rights. The court found that it does not – you can waive such rights.

It is however, a basic principle of contract law that a party may waive legal rights and this principle is applicablehere. See, e.g., Navellier v. Sletten, 262 F.3d 923, 940 (9th Cir. 2001) (upholding a contractual release explaining that “there are no genuine issues of material fact indicating that the challenged release was either procedurally or substantively unconscionable. As the district court noted, Sletten freely chose to waive his legal rights in order to preserve the stability of the Fund.”) In this case, Plaintiff (the sponsored immigrant) signed a contract directly with Defendant, the Pre-Marital Agreement, in which he voluntarily chose to waive his right to any support from Defendant. The Pre-Marital Agreement was entered into a year prior to Defendant’s signature of the Form I-864.

The court concluded

the Court finds that Plaintiff has waived his right to enforce the Form I-864 by entering into the Pre-Marital Agreement. Plaintiff cannot escape his own voluntary choice to enter into the Pre-Marital Agreement in order to marry Defendant.

If applicable (and it's not guaranteed that it would be), that could remove the parent from the set of parties that could enforce the contract – various governments could still. In addition, by adding the element of fraudulent intent, you would still be subject to numerous penalties for perjury and so on, and the agreement you made with the parent would be itself found to be invalid (in the above case, the prenup was legitimate, not a scheme to gain a green card).

This article discusses some of the legal theories involves in waiving I-864 rights, but the same author elsewhere recognizes that "The majority of courts to consider waivers of I-864 rights have found such agreements to be unenforceable, though the reasons for this holding are misguided".

As for the possibility of a person waiving their right to receive public support, that would not be enforceable: basically, "the public" is not and cannot be a party to an agreement. For instance, if the alien were to claim a statutory right to support in Idaho under Idaho law, Idaho cannot argue "The alien entered into an agreement with Citizen Z to never claim this right". The scope of any possible waiver would be limited to claims by the contracting parties. Welfare is generally an unwaivable right.

  • Thank you for the thorough answer. Does the situation remain the same if the alien waives his/her right to go on public assistantship as well? That is, if the alien swears legally to never seek financial support neither from the petitioner nor from the US government. – Ptheguy May 10 at 15:41
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No

  1. A contract against public policy is void so your agreement with your relative would be unenforceable.

  2. You would be committing perjury which carries a Federal prison term of 5 years by swearing you would do something which you do not intend to do.

  • I don't see anywhere on the Affidavit of Support where you swear that you "would do something". You only swear that the information on the form is correct and that you agree to accept the obligations and the jurisdiction of the court. – user102008 Jun 14 at 2:52
  • @user102008 because the information on the form isn’t correct - you say you will do X when you have no intention of doing X – Dale M Jun 14 at 5:41
  • But the form doesn't say "I will do X" – user102008 Jun 14 at 14:46

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