united-states immigration
Can one waive their right to execute the affidavit of support
<p>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. </p>

<p>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). </p>

<p>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?</p>

<h2>No</h2>

<ol>
<li><p>A contract against public policy is void so your agreement with your relative would be unenforceable.</p></li>
<li><p>You would be committing <a href="https://en.wikipedia.org/wiki/Perjury" rel="nofollow noreferrer">perjury</a> which carries a Federal prison term of 5 years by swearing you would do something which you do not intend to do.</p></li>
</ol>

<p>The right of the alien (also the government) to sue for enforcement of the terms of the contract is statutorily guaranteed under <a href="https://www.law.cornell.edu/uscode/text/8/1183a" rel="nofollow noreferrer">8 USC 1183a</a>, it is open to the alien, and there is no express provision for waiving that right. However, there is case law. In <a href="https://www.govinfo.gov/content/pkg/USCOURTS-hid-1_10-cv-00072/pdf/USCOURTS-hid-1_10-cv-00072-0.pdf" rel="nofollow noreferrer">Blaine v. Herrell</a>, 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.</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>The court concluded</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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).</p>

<p><a href="http://www.i-864.net/suing-on-the-i864-affidavit-of-support#_ftn140" rel="nofollow noreferrer">This article</a> discusses some of the legal theories involves in waiving I-864 rights, but the <a href="https://www.soundimmigration.com/wp-content/uploads/2015/12/ABA-I-864-Article.pdf" rel="nofollow noreferrer">same author elsewhere</a> 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".</p>

<p>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.</p>
