Shah v. Shah, No. 12-cv-4648 (RBK/KMW) (District of New Jersey)

Shah v. Shah, arose in the District of New Jersey. No. 12-4648 (RBK/KMW) (N. N.J., Oct. 30, 2015).  Although the plaintiff appeared pro se, the case addresses two important issues: waiver of I-864 rights and the interplay between conditional residence status and I-864 damages.

Court orders for download:

Jan. 14, 2014 Memorandum Opinion

Oct. 30, 2015 Memorandum Opinion

Enforceability of nuptial agreement waiving I-864 rights.

Shah is one of the cases to take the majority view that nuptial waivers of I-864 rights are unenforceable.

Here, the plaintiff signed a prenuptial agreement prior to executing the I-864. Civil No. 12–4648 (RBK/KMW), 2014 U.S. Dist. LEXIS 4596 (D.N.J. Jan. 14, 2014) (memo. op.) The court held that the language of the prenuptial agreement by itself was inadequate to waive the sponsor’s support duty, as it failed to specifically embrace those rights. The agreement stated, under a section entitled “Alimony,” that the immigrant-beneficiary:

waives, releases and relinquishes any and all rights whatsoever, whether arising by common or statutory law (present or future) of any jurisdiction to spousal alimony, maintenance, or other allowances incident to divorce or separation....

Id. at *9.

The court went on to hold that, contractual language aside, the parties lacked authority to waive the sponsor’s support duty. First, the court noted that “immigration regulations” list the five circumstances that terminate support obligations, and that “a prenuptial agreement or other waiver by the sponsored immigrant” does not terminate obligations under the regulations. Id.

The court then went on to offer an interesting second argument in support of the non-waivability of support rights. It noted that under the INA, the “Government” may not accept an I-864 unless that I-864 is “legally enforceable against the sponsor by the sponsored alien.” Id. at *11. The language quoted is where the INA mandates creation of the document that became the I-864, Id. (citing 8 U.S.C. § 1183a(a)(1)), which replaced the unenforceable I-134.

The Shah court found that it would “undermine the purpose of the statute” to allow beneficiaries to waive support. Shah, 2014 U.S. Dist. LEXIS 4596, at *11. Indeed, the majority of federal courts have taken the view that nuptial agreements categorically cannot waive rights to enforce the Form I-864.

Conditional residence and calculation of I-864 damages.

In Shah a pro se foreign national prevailed at a jury trial, demonstrating that her sponsor had failed to fulfill his obligation under the Form I-864.The jury, however, appeared to calculate damages based on a cutoff date of when the foreign national won the approval of her I-751 petition, which was filed as a waiver without the sponsor’s assistance.

The plaintiff, pro se, moved for a new trial, arguing that the I-751 approval did not terminate the sponsor’s obligations. Without further explanation, the Court stated:

After Plaintiff received a one-year extension from USCIS, her status was set to expire on May 25, 2014. But upon Plaintiff's petition, USCIS adjusted Plaintiff's immigration status to that of lawful permanent resident on December 13, 2013. Because Plaintiff's status adjustment was not based upon Defendant's Form I-864, her status adjustment terminated Defendant's obligation to support Plaintiff.

These statements are poorly guided – likely in the literal sense that the pro se plaintiff gave the Court little sound research on which to base its ruling.

The error is this: an I-751 petition is not an application for “status adjustment.” An I-751 petition is exactly what it says on its face – a petition to remove the conditions placed on an individual who is already an LPR. That is a distinction with a difference.

Under the plain language of federal regulations conditional residents are LPRs. 8 C.F.R. § 216.1 (“A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act. . .”). Unless otherwise specified by law, a conditional resident possesses all “rights, privileges, responsibilities and duties which apply to all other lawful permanent residents.” Id. As the USCIS Policy Manual states in its introductory sentence to conditional residency, conditional residents have “been admitted to the United States as LPRs on a conditional basis for a period of two years.” USCIS Policy Manual Vol. 12, Part G, Chapter 5(A), available at http://1.usa.gov/1IArtlI (last visited Dec. 28, 2015) (emphasis added). See also 8 CFR § 235.11(c) (The lawful permanent resident alien status of a conditional resident automatically terminates if the conditional basis of such status is not removed by the Service through approval of a Form I-751, Petition to Remove the Conditions on Residence. . .”) (emphasis added). For a foreign national filing an I-751 petition, LPR status is hers to lose, not to gain. A conditional resident maintains status as an LPR unless: (1) she fails to timely file her petition for unconditional status; (2) such a petition is denied; or (3) her status is affirmatively terminated by the government. 8 USC §§ 1186a(c)(2)(A) (lack of timely petition), 1186a(c)(3)(C) (petition denied), 1186a(b)(1) (affirmative termination).

In other words, once a foreign national has acquired conditional LPR status based on an I-864 filed by her sponsor (or a joint sponsor), she has already acquired LPR status, period. All that is left is to remove the conditions placed on her LPR status, but there is no “other” permanent residency status to which she could “adjust.” When a conditional resident gets an I-751 approved – whether via a joint petition or waiver – she is not transitioning into a new residency status. The pro se plaintiff in Shah was an LPR from the day she first received conditional LPR status, and she maintained that same LPR status through the I-751 petition process. Shah was wrongly decided and will hopefully not mislead other courts.