A recent Pennsylvania case illustrates one way that family law attorney can fruitfully use the I-864: to catch sponsors who under-report income and assets in divorce cases. F.B. v. M.M.R. involved a United States citizen (USC) who petitioned for his foreign national (FN) Egyptian wife. No. 31715 (Mar. 17, 2015 Penn. Sup. Crt.). The background is somewhat confusing but important for understanding the case. The USC and FN appear to have been married in Egypt before starting the immigration process. Apparently due to concern that the marriage wouldn't be considered valid, the USC petitioned for his wife as a fiancee.

Fiancee "non-immigrant" visas, unlike marriage based "immigrant" visas do not require a form I-864. In fact, it is a violation of the Foreign Affairs Manual for the consulate to require an I-864 in fiancee cases. Rather, the USC completes a non-binding form I-134, Affidavit of Support, the predecessor to the contractually binding I-864.

The marriage fell apart during the immigration process, though the wife entered the US on the fiancee visa and thereafter lived with her USC husband for six years. The couple drafted paperwork to complete the adjustment of status process, including the Form I-864. But these papers were never actually filed.

In subsequent divorce proceedings, the wife argued that she was entitled to financial support based on the Form I-864.

Initially the trial court granted support based on the I-864. But the court later granted reconsideration and reversed it's decision, on evidence that the I-864 had not actually been filed. The Court determined that the obligation under the Form I-864 didn't begin unless the wife became a resident based on submission of the Form. This is consistent with a straight-forward reading of the I-864 provisions.

But the Court did use the I-134 Affidavit of Support in a different, interesting way.On the Form I-134, the sponsor had reported that he earned $128,000 per year and had assets worth more than $3.7 million. Like any sponsor, during the immigration process he had the incentive to demonstrate substantial income. Later, in the divorce Court, his incentive was the opposite. But the wife was able to use his Affidavit of Support to show his income-earning ability and previously reported assets.

Now generally it would be tough for a sponsor to overstate income and assets on an Affidavit of Support. Especially the I-864 - as opposed to I-134 - is minutely scrutinized by the State Department, which takes a careful look at supporting documentation. Both income and assets have to be shown by documentation.

But this does serve to emphasize that a sponsor might want to be careful about reporting assets, period. For the Form I-864 the sponsor is not required to report assets at all if his income is at or above the sponsored level. In this case the sponsor's income would almost certainly have been enough, regardless of assets. Where the income is enough, it would be a good idea for the sponsor - of the attorney advising him - not to include assets. If assets are unnecessarily reported the I-864 could later be used as evidence in a divorce proceeding, such as this case. On the flip side, family law attorneys will want to be sure to request the Form I-864 in discovery for exactly this reason. Even in cases where the I-864 beneficiary earns too much to sue for I-864 immigration financial support, the Form I-864 might be helpful evidence to examine the sponsor/spouse's income and assets.

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