How does the immigration agency review I-864s? Here's the actual answer.

This post coincides with a talk I'm giving at the annual conference of the American Immigration Lawyers Association. If you attended the conference and would like copies of any material referenced in the talk, please use the contact form on this website to get in touch with me.

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Immigration attorneys know that the immigration agencies are notoriously picky about the I-864, Affidavit of Support. Small errors (real or perceived) can cause the Form to be rejected, causing lengthy delays in case process. Some of us wondered, "what rule book are these guys playing by?" While the USCIS Adjudicators Field Manual, and State Department's Foreign Affairs Manual are both publicly available, guidelines used by front line adjudicators aren't.

So what to do...

If you're noted immigration attorney, Charles Wheeler you file a Freedom of Information Act (FOIA) request and get the inside story. Charles has obtained a 1,899-page response, providing the standard operating procedures (SOP) for how USCIS reviews I-864-series forms. With Charles' permission I'm making those FOIA results available here.

Probably because of the processing time for FOIA requests, the guidelines reference a prior version of the Form I-864. In fact, the Form I-864 will be changing  yet again in coming months. But the SOP still provide a helpful window into how the agency reviews these forms.

I've taken a first crack at drafting a checklist for reviewing Form I-864s prior to submission. The checklist is modeled off of the one in the FOIA results (starting at page 28 of Part 1, linked below). With the help of my colleague, Gustavo Cueva, I've tried to update the checklist so it works with the now-current Form I-864. It's definitely a work in process, and comments for improvements are most welcome. You can download the flow chart in Excel for aremat here: 2015_06_19_864 flow chart. Important disclaimer: by using this checklist you agree no attorney/client relationship exists, and agree to exercise independent judgment in preparing and filing the Form.

If you'd like to dive into the FOIA results in detail, here they are. Due to the size they're broken up into smaller parts.

• PART 1 (page 1 -200)
• PART 2 (Page 201 - 800)
• PART 3 (Page 801 - 1200)
• PART 4 (Page 1201 - 1400)
• PART 5 (Page 1401 to 1600)
• PART 6 (Page 1601 to 1899)

Pennsylvania case shows trap I-864 sponsors, tool for divorce attorney, caution for immigration attorneys

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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Photo credit: Stuart Miles (http://www.freedigitalphotos.net/)

Motion to Dismiss denied in Federal I-864 litigation

In Du v. McCarthy, a Federal District Court in the Northern District of West Virginia has refused to dismiss a lawsuit brought against an I-864 sponsor. No. 2:14-cv-100 (N.D. W. Va. Mar. 26, 2015) (report and recommendations). [The magistrate's recommendations were upheld by order of a district court judge issued April 16, 2015]. The case raises at least one completely new issue, as discussed below.

Background

The parties were married in 2012 and divorced in 2014. Following marriage, the U.S. citizen husband executed a Form I-864 for his wife. In the divorce action, the husband was ordered to pay a small amount of temporary spousal support. But the divorce court specifically stated that the spousal support order was not based on the Form I-864, since those rights had not be pleaded.

Discussion.

The defendant brought a motion to dismiss, asserting several arguments.

First, he argued that his wife could not bring the I-864 claim because she failed to raise it in the divorce case. In Yaguil v. Lee, a different federal court had dismissed a claim by an I-864 beneficiary since the claims had been raised in a preceding divorce case. No. 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D. Cal. April 10, 2014). But in the Du case, the claims were never litigated in the divorce court.

 Accordingly, the issue of support under the Form I-864 was never raised in the parties' divorce proceedings; therefore, there was never a final judgment on the merits of Plaintiff's claim.

This conclusion is consistent with the reasoning of other courts: if the I-864 is not raised in the divorce proceeding, the beneficiary may bring a separate lawsuit. In fact, even if she does attempt to assert a claim in the family law court, she may still have a right to bring a separate lawsuit, since the family law court may decide not to rule on the claim.

The defendant's second argument was that the beneficiary was filing a petition under the Violence Against Women Act (VAWA).  A "self-petitioner" under VAWA files an I-360 petition for herself, as well as a Form I-864W to demonstrate that for such a petition she is not entitled to file a Form I-864. The defendant appears to have argued that if the plaintiff secured residence based on a Form I-360 petition, she would no longer be entitled to support under the I-864 that the defendant signed.

I'm not sure that's right. In this case, the court didn't have to decide the issue, because the defendant didn't prove that the I-360 had actually been approved. But let's look at the issue.

There are only five events that end a sponsor's obligations. The beneficiary:

1. becomes a U.S. citizen;
2. can be credited with 40 quarters of work;
3. is no longer a permanent resident and has departed the U.S.;
4. after being ordered removed seeks permanent residency based on a different I-864; or
5. dies.

So let's say you have a sponsor who petitions for his wife. She gets 2-year conditional residency (it's a new marriage) and they get divorced before jointly petitioning for her 10-year (renewable) green card. First of all, in most cases the strategy will be to file an I-751 waiver application. Both the I-360 and the I-751 (at least on one strategy to secure approval) require the beneficiary to demonstrate abuse. But let's just assume she is first a conditional resident, then secures an approved I-360 uses that as a strategy for long term residence.

Was any of the five terminating conditions met? I don't see how. Condition (3) is met only if she departs the U.S. after losing status (which happens by operation of law at the end of the 2-year residency period). Condition (4) is met only if there's an order of removal and a new I-864... but in this hypothetical there is neither. I think that even if the I-864 beneficiary had (for whatever reason) received approval on the VAWA self-petition she would still be eligible to receive support.

USCIS to release updated Form I-864

The U.S. Citizenship and Immigration Service (USCIS) is in the process of finalizing a new version of the Form I-864.  (USCIS periodically revises all of it's forms).  A preview of the draft form reveals some important changes.  You can download the draft form here: I-864 (2015 revision). The official rule-making notice is available here. The official Supporting Statement submitted by USCIS reports that 439,500 sponsors complete the Form I-864 each year. That's a lot, but not surprising since it's required in all family-based cases. Here are some notes about the revisions.

Reduced privacy protections for sponsors?

The new Form provides:

. . .I authorize the release of any information from any and all of my records that USCIS may need to determine my eligibility for the benefit that I seek.

This broad language is probably mostly for the purpose of allowing USCIS to share information with other immigration agencies - specifically the Department of State for use in visa processing. But the next paragraph seems to go even further:

I furthermore authorize release of information contained in this affidavit, in supporting documents, and in my USCIS record to other entities and persons where necessary for the administration of U.S. immigration laws.

To date it appears that USCIS typically takes the position that the federal Privacy Act prevents disclosure of a signed I-864 to the immigrant beneficiary. (There are reasons this could be wrong, but we'll leave that aside). Since the I-864 contains the sponsor's personal information, USCIS typically says the document cannot be disclosed to the sponsored immigrant under the Freedom of Information Act (FOIA). But it appears this new paragraph could waive a sponsor's protection under the Privacy Act. This could make it easier for an immigrant-beneficiary to secure the signed I-864 for use in litigation against the sponsor.

In its public comments to the proposed new Form, the American Immigration Lawyers Association (AILA) has this to say:

While we agree that USCIS has the authority to obtain records related to the sponsor that are maintained by other agencies within the Department of Homeland Security and the State Department, this statement seems to go beyond the acceptable parameters. We do not believe that the sponsor should be compelled to allow USCIS to retrieve non-public information or release the sponsor’s information to any branch of the U.S. government, private companies, or the governments of foreign countries. We strongly object to this provision, and ask that it be revised to protect the privacy interests of sponsors.

At least AILA thinks the new provisions may be in part unlawful: "This section. . . is overbroad, and may violate privacy laws."

Note also: it's odd that the Form talks about the "benefit that [the sposor] seek[s]." Usually the term benefit refers to a status - like residency - conferred by immigration agencies. I suppose it has to be interpreted here to refer to the benefit of permitting the immigrant-beneficiary to complete the immigration process. As AILA notes, "A Form I-864 sponsor is not necessarily seeking a benefit, so this statement should be revised."

Reminder of penalties.

The new Form specifically tells sponsors to look at the discussion of penalties in the Form I-864 official instructions. There are no new penalties; the Form just now draws attention to the discussion. Basically, penalties can be levied for:

1. Lying on the Form (this can include criminal punishment);
2. Failing to report a change of address after filing the form; and
3. Concealing the sponsor's whereabouts to avoid responsibility for repaying means-tested public benefits received by the immigrant.

I-864A also revised (for household members).

USCIS has also revised the Form I-864A, used by household members of an I-864 sponsor to make their income available for calculation purposes. Individuals who sign an I-864A have the same liability as the sponsor who signs the I-864. The revised I-864A is more detailed than the old version, and looks more like the I-864.  The additional length is likely to cause more time and work for everyone.

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New "Certification" section on the Form I-864

[Most of the language in the new "certification" section appears in the old Form I-864, but has been reorganized under this heading]

Copies of any documents I have submitted are exact photocopies of unaltered, original documents, and I understand that USCIS may require that I submit original documents to USCIS at a later date. Furthermore, I authorize the release of any information from any and all of my records that USCIS may need to determine my eligibility for the benefit that I seek.

I furthermore authorize release of information contained in this affidavit, in supporting documents, and in my USCIS record to other entities and persons where necessary for the administration of U.S. immigration laws.

I certify, under penalty of perjury, that the information in my affidavit and any document submitted with my affidavit were provided by me and are complete, true, and correct.

A.  I know the contents of this affidavit of support that I signed.

B.  I have read and I understand each of the obligations described in Part 8., and I agree, freely and without any mental reservation or purpose of evasion, to accept each of those obligations in order to make it possible for the immigrants indicated in Part 3. to become lawful permanent residents of the United States;

C.  I agree to submit to the personal jurisdiction of any Federal or state court that has subject matter jurisdiction of a lawsuit against me to enforce my obligations under this Form I-864;

D.  Each of the Federal income tax returns submitted in support of this affidavit are true copies, or are unaltered tax transcripts, of the tax returns I filed with the U.S. Internal Revenue Service; and

E.  I authorize the Social Security Administration to release information about me in its records to the Department of State and U.S. Citizenship and Immigration Services.

Do I-864 sponsors have to pay medical bills?

Here's a question I get frequently from I-864 sponsors: if the person I sponsors gets into a serious accident, am I going to have to pay the medical bill? Short answer: probably not.

There are two different financial promises made by a person who signs a Form I-864, Affidavit of Support. The first is to ensure the beneficiary has income at or above 125% of the Federal Poverty Guideline. There is a lot of information about the obligation available on this site (start here to learn more).

The second promise is the one that creates concern about medical bills. Here's the language in the Form I-864 itself:

If a Federal, State or local agency, or a private agency provides any covered means-tested public benefit to the person who becomes a permanent resident based on the Form I-864 that you signed, the agency may ask you to reimburse them for the amount of the benefits they provided. If you do not make the reimbursement, the agency may sue you for the amount that the agency believes you owe.

In other words, if the I-864 beneficiary receives certain public benefits, the sponsor can be sued for the cost of those benefits. Let's take a closer look at how this works.

What is meant by means-tested public benefits?

"Means-tested public benefits" is a legal term of art. Generally, these are a type of federally-funded public benefit programs, loosely referred to sometimes as "welfare". (The term welfare is so broad it really doesn't mean anything, and it's not a legal term).  According to the Department of State's description of means-tested benefits, they include:

• Food stamps;
• Supplemental Security Income (SSI);
• Medicaid;
• Temporary Assistance for Needy Families (TANF); and
• State Child Health Insurance Program (CHIP).

Importantly, notice what's not on that list: general debt. So let's say the I-864 beneficiary goes out and buys a flat screen TV on credit, then doesn't pay the bill. The government isn't going to swoop in and sue the sponsor, because the TV debt has absolutely nothing to do with a means-tested public benefits program.

What about medical debt? That really depends on how the medical care was delivered. The government can come after the I-864 sponsor only if there was a means-tested public benefit. If an I-864 beneficiary is enrolled in Medicaid and has a car accident, definitely the I-864 sponsor could be sued for a huge amount of money.

But the government cannot sue the sponsor merely because a hospital provided expensive services to the I-864 beneficiary. Again, if the beneficiary didn't receive a means-tested benefit, the government cannot come after the sponsor.

Could a medical provider sue the sponsor directly?

So far we've been talking about the government getting involved to seek repayment of benefits. Can a medical provider sue an I-864 sponsor if the beneficiary has medical debt?

Remember there are two promises in the I-864: (1) ensuring income to the beneficiary; and (2) repaying means-tested public benefits. Looking at the first promise, a hospital could say that the sponsor's income should be available to the beneficiary to repay medical bills.

First off, I have never heard of a medical provider suing an I-864 sponsor. Moreover, it is unlikely that such a lawsuit would succeed. The I-864 is a contract between the sponsor and the United States government. In contract law terms, the immigrant is a "third-party beneficiary" of the I-864. This means that she has the ability to enforce rights under the contract even though she isn't a party to the contract (meaning she wasn't one of the parties entering into the agreement... it was just made for her benefit).

The I-864 makes very clear that the immigrant is a third-party beneficiary with rights to enforce the contract. So does the federal statute that creates the I-864. But there are no similar provisions for medical providers. It would take some very creative arguments by a hospital to explain why they have the legal ability to enforce rights under the I-864 contact.

I won't go on the record saying this sort of lawsuit is completely impossible, but success seems unlikely. If you've heard of such a suit, please let me know!

Bottom line.

Here's the bottom line:

1. The government gets involved only if there are means-tested public benefits. The government can't sue the I-864 sponsor just because the I-864 beneficiary has general debt, including medical debt.
2. There is no obvious way that a medical provider could sue the I-864 sponsor directly, since the I-864 doesn't say that such third-parties can enforce the contract.

Footnote: government suits against sponsors seem to be rare.

Even in cases where an I-864 beneficiary does receive public benefits, it is rare for the sponsor to be sued. I'm not aware of a single case in my home state of Washington where an I-864 sponsor has been sued by government agencies. In the recent past there were some efforts made to collect the cost of benefits from I-864 sponsors on the East Coast, including New York. But I haven't heard any reports of such cases in the past year.

Certainly a sponsor cannot assume he won't be sued. Government agencies have the right to seek repayment of means-tested public benefits, so sponsors shouldn't rest too easily just because this doesn't happen all the time. The point is only that it appears to be relatively rare that this happens.

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Photo credit: hywards of http://www.freedigitalphotos.net/.

What is sponsorship deeming?

Can green card holders qualify for public assistance programs? The answer to that question is very complicated. One major issue, however, is whether the welfare office will count the income of the immigrant's I-864 sponsor - called "sponsorship deeming." If the welfare office applies sponsorship deeming, the sponsor's income can prevent the green card holder from getting public assistance. That's true even if she is not actually receiving income from the sponsor.

Since my home state is Washington, this discussion is specific to our state. Other states have similar rules on sponsorship deeming, though rules may differ.

The focus of this post is about what to do if the welfare office decides sponsorship deeming does apply in your case.

Who does sponsorship deeming apply to?

Deeming is applied to green card holders who were sponsored by someone who signed an Affidavit of Support. The Affidavit of Support has been required in all family based immigration petitions (spouses, parents, children and siblings) since 1996.  Before 1996 a different Affidavit of Support form was used, and the rules are slightly different about how deeming applies in those cases. The basic rule is that deeming will apply for anyone who came to the U.S. based on a family petition.

Are there programs where deeming doesn't apply?

Yes. It does not apply in these programs:

1. Emergency Medicaid;
2. School lunch programs;
3. Child Nutrition act Programs;
4. Foster Care and Adoption Assistance;
5. Some other Washington State programs like prenatal care.

There are also some state-funded programs where deeming doesn't apply if one of these conditions is met:

1. The Affidavit of Support was signed 5 or more years ago;
2. The sponsor is incapacitated;
3. You, your spouse, or your parent meet certain military service conditions; or
4. Your household is at or below 130% of the Federal Poverty Guidelines.

Are there immigrants for whom deeming doesn't apply?

Yes there are. Sponsorship deeming doesn't apply:

1. If you are a survivor of domestic violence and are no longer living with the abuser;
2. You would go hungry or homeless without assistance; and/or
3. You are under 18 years of age (this applies to Basic Food assistance only).

Also, remember that deeming applies only if there was an Affidavit of Support signed for you. So if you came to the U.S. as a refugee, for example, or on a business-related visa, deeming probably does not apply.

What should I do if sponsorship deeming prevents me from getting public benefits?

The real question is what you should do if you're denied benefits.

First, understand that you have to get a review of the decision to deny your benefits. You can ask for a "Fair Hearing" review. Essentially, a higher level government employee will review the decision to deny benefits to you.  In Washington State you can request legal assistance by calling Northwest Justice Project's CLEAR line at 1-888-201-1014. Unfortunately they are limited in the number of cases they can accept.

Second, you should consider enforcing your right to support from your sponsor. The thinking behind sponsorship deeming is that the sponsor is making income available to you. That's because - in situations where sponsorship deeming applies - you may have a right to receive income support from the sponsor. If that's preventing you from getting public assistance, you might want to consider enforcing your right to support from the sponsor.

If you'd like to talk to us about enforcing your right to support, visit this page to set up a free consultation.

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Photo credit: Keerati (http://www.freedigitalphotos.net)

Common mistakes completing the I-864

My colleague, Charles Wheeler at CLINIC has written a helpful post on common errors on the Form I-864, Affidavit of Support. I agree with Charles that the National Visa Center (NVC) has "increased its scrutiny" on the Form I-864, resulting in an increased number of Requests for Evidence. Just last week my firm prepared a lawsuit against the NVC for delay on an I-864 case. Charles identifies five common mistakes that sponsors commit when completing the Form I-864. Here are my thoughts on some of his points.

It is anticipated income, not what the sponsor paid in taxes last year.  The I-864 in Part 6, line 5, asks the sponsor to indicate his or her “current individual annual income.” [. . . ]

A common issue when completing the I-864 is that the individual earned under the required level of support in the past tax year, but is currently earning above the required level. I would emphasize a slightly different point from Charles, however. As he points out later in his post, the NVC is eager to reject Forms I-864 if there is a variance between reported income and the previous year's tax returns. For this reason, I'm extremely reluctant to file and I-864 based on "anticipated" income if the previous year's income was about 125% of the Federal Poverty Guidelines. As I tell clients, the point isn't to win the high income game, it's to get past the National Visa Center. If the income reported on the Form I-864 doesn't match the last year's income there is a chance the Form I-864 will be rejected.

Put down exactly what the sponsor reported in taxes last year. The I-864 in Part 6, line 13a-c, asks for the sponsor’s “total income…as reported on my federal tax returns for the most recent 3 years.” This is where you need to take the income reported on line 22 of last year’s 1040 and put that figure in line 13a.

I completely agree with Charles: this can't be emphasized enough. You literally need to copy/paste the "total income" line from last year's tax transcript (or adjusted total income if you used a 1040ez). A $1 difference between those numbers can cause the Form I-864 to be rejected. Seriously.

Only include assets if income is insufficient.

A sponsor is required to report assets on the Form I-864 only if she doesn't meet the income requirements. If she's at or about 125% of the Federal Poverty Guidelines there is no reason to include assets. You can, but there's no reason to provide proof of assets if income is sufficient. Given scrutiny by the NVC, it's best not to introduce extra information if it's not required.

Can you sue the I-864 sponsor after he dies?

Fox v. Lincoln Financial Group is perhaps the first case to address obligations by an I-864 petitioner after his death. Docket No. A-0 (Sup. Crt. N.J. Feb. 24, 2015), available at http://bit.ly/1J3c7mL (last visited May 26, 2015).

In Fox the I-864 petitioner purchased a life insurance policy in 1992, naming his first wife as the policy beneficiary. He later divorced and named his sister as the insurance policy beneficiary. The petitioner then remarried a Brazilian national in 2012 and signed a Form I-864 on her behalf.  Before the immigration petition was approved the petitioner died in an accident. No changes were made to the insurance policy.

The I-864 beneficiary brought a lawsuit against the petitioner's sister, seeking recovery against the life insurance policy. Most of the appellate opinion involved the issue of whether the petitioner's remarriage operated to change the insurance policy beneficiary by operation of law. (It did not). This issue was wholly a matter of New Jersey law, not involving the I-864.

Having lost that argument, the foreign national widow also argued that the I-864 created an ability for her to recover against the insurance policy. The court summarily dismissed this argument, due to the following language in the I-864 itself:

...if you die, your [e]state will not be required to take responsibility for [the beneficiary's] support after your death.

Thus, the court held,

the trial court correctly found that Michael was under no duty to support [the foreign national] or provide a life insurance policy for her, as such support obligation terminated upon his death pursuant to the express terms of the Form I-864 support affidavit.

This much is correct. Indeed, the regulations clearly state that the obligation of a sponsor (or joint sponsor) terminate upon the death of the sponsor. 8 CFR 213a.2(e)(2)(ii).

But it would not be correct to say (and this court did not) that the I-864 provides no way to seek recovery after the petitioner dies. The beneficiary could still have a claim against the petitioner's estate for support that was owed prior to the petitioner's death. Whether or not the beneficiary -as she tried to do in this case - could recovery from a life insurance policy naming a different beneficiary is another matter. But Fox should not be taken to mean that the I-864 automatically provides no remedy if the petitioner has died.

N.Y. attorney wins award for I-864 work

New York attorney Erik Faragi of the law firm Baker Botts has won recognition for his work on a case involving the I-864 Affidavit of Support. The New York Bar Association awarded Faragi the 2015 President's Pro Bono Service Award on May 5th.

In a phone conversation, Faragi described his work on the 2012 case, which he took pro bono through a non-profit organization, Her Justice. Faragi represented an Algerian national with two children. Under a 5-year protection order from her immigration petitioner, the woman sought an award of spousal support from the N.Y. courts. As Faragi described N.Y. practice, the Support Collection Unit will assist in enforcement of a spousal support order only if there is also an order for child support. Knowing this, Faragi argued that both spousal and child support orders were appropriate because the woman was the beneficiary of a Form I-864 Affidavit of Support.

The court agreed. First the court determined 125% of the Federal Poverty Guidelines for a household size of one, and awarded this amount to the mother as spousal support. The court then looked at Guidelines standard for a household size of three, and awarded the difference between this and the spousal support amount as child support. Faragi reported that the court was persuaded by authority such as Moody v Sorokina that it was appropriate to base a support order on the I-864 obligation.

Interestingly, the signed I-864 form was not entered into evidence in the case. Faragi attempted to obtain the document via a Freedom of Information Act request but was denied, likely due to the federal Privacy Act. Instead, the I-864 beneficiary offered testimony concerning the I-864. No expert was needed to establish the fact that under immigration law the I-864 would have been required to secure the beneficiary's immigration status, a strategy used elsewhere.

Photo credit: Simon Howden, freedigitalphotos.net.

Washington court holds: no alimony based on I-864

Today an appeals court in Washington State held that an I-864 beneficiary is not entitled to receive spousal maintenance (i.e., alimony) on account of the I-864, Affidavit of Support. But the court made clear that the beneficiary is still able to seek enforcement of the Affidavit in a contract suit against the sponsor. This decision leads to a very inefficient situation, where two separate legal cases will be needed in order for the beneficiary to defend her rights. In Matter of Khan, No. 44814-9-II (Div. 2 2014) involved an Indian citizen who was married for two years to a United States citizen. The couple separated, and the husband petitioned for dissolution of marriage in January 2012. None of the pleadings in the divorce case mentioned the I-864, but the trial court considered the I-864 and ordered temporary maintenance of $2,000 based on the I-864. The beneficiary appealed, arguing that the trial court should not have limited the duration of the support, since it was based on the I-864 obligation which lasts potentially indefinitely. Instead, she argued, the courts should have based the duration based on the five events stated in the I-864 that end the support obligation.

The court of appeals disagreed with the beneficiary. The court cited three reasons for why it was not appropriate to use alimony to enforce the I-864 support duty:

1. First, the court found there was no conflict between state alimony rules and the I-864 obligations. Rather, the court held that state-ordered alimony are independent obligations.

2. Second, the court looked at the Washington statute governing alimony and found that none of the factors concerned "one spouse's contractual obligation under federal immigration law."

3. Third - and very importantly for I-864 beneficiaries - the court rejected the concern that the beneficiary could not bring a separate suite to enforce the support obligation. Other courts have found that a beneficiary cannot bring a separate lawsuit for I-864 support after arguing for such support in a divorce case. But the Khan court specifically held that the beneficiary could bring a different lawsuit to enforce her I-864 rights because the divorce court "did not adjudicate an action for breach of the sponsor's I-864 obligation."

The Khan case leads to a frustrating and inefficient situation for I-864 beneficiaries. By holding that a divorce court is not required to order alimony based on the I-864 the Khan court leaves beneficiaries in the position of having to bring a separate lawsuit to recover I-864 support. The Khan decisions leaves open the possibility that a divorce court could order support based on the I-864 if the judge found doing so appropriate, but if alimony is not ordered it will be difficult to appeal.

On the other hand, the Khan decision creates a new Washington State precedent that beneficiaries are entitled to bring a lawsuit against I-864 sponsors. This is great news for beneficiaries. And because beneficiaries are entitled to recover attorney fees and the costs of litigation from I-864 sponsors, the expense of these lawsuits will be born by I-864 sponsors.

One (long-shot) strategy for joint sponsorship

Family petitioners with limited resources often find themselves in need of an additional "joint sponsor" to meet the financial sponsorship level required for the I-864. Usually the petitioner will approach other family members or friends. The only legal requirements are that the person be a citizen or permanent resident living in the US. But here's one approach to finding a joint sponsor that I saw for the first time today: post a Craigslist ad. The following ad was posted on the Eugene Craigslist page:

Affidavit of support co-sponser needed

 I know this is a long shot but I have tried everything else, so I have decided to come here to see if I can find someone with a good heart that is willing to help my family. My husband is a nigerian citizen and we are trying very hard to get him here with his family where he belongs. Our son misses his father dearly and the struggles of being the only parent in the home is getting overwhelming. I work full time and go to school but I still don't make enough to petition for my husband on my own. Please I beg if you are willing to help and make over 125% of the poverty guideline please contact me by responding to this ad for more details.

Certainly this shows the challenging situation of someone struggling to meet the financial sponsorship requirements of the I-864. It's also important to recognize what this person is asking from a stranger. I-864 sponsorship lasts potentially indefinitely. Folks can - and should - helps others when they can. But it's important not to think the I-864 is "just" an immigration form. It's a binding legal contract and needs to be treated with caution.

Daily News America picks up I-864 issues

The New York Daily News had given rare mainstream media coverage to I-864 enforcement. The brief article suggests that enforcement of I-864 rights "rarely happens". This may be the case, though no known statistics exist to back up the assertion. What is clear, however, is that the right to receive I-864 support is clearly established for beneficiaries. It seems that many beneficiaries may not be recovering the support to which they are entitled.

Joint sponsor liable for $10,908

Following a bench trial to a federal judge, a joint sponsor has been held liable for $10,908 in damages to an I-864 beneficiary. In Matloob v. Farhan a Pakistan national brought suit pro se against her former husband and his uncle, who signed an I-864, Affidavit of Support as a joint sponsor. Civil No. WDQ-11-1943, 2014 WL 1401924 (D.Md. May 2, 2014) (Memo. Op.). The marriage at issue was arranged between the Pakistan national wife and a US citizen husband. Because of the husband's low income, in order to meet sponsorship requirements for a spousal visa he was required to secure an additional "joint sponsor" I-864, which was executed by his uncle.

A trial, testimony established that the beneficiary-plaintiff had suffered physical abuse by her sponsor-husband. She suffered the abuse when the sponsor-husband was physically unable to consummate the marriage, shortly after her arrival to the US. When the couple sought medical advice for this issue the doctor discovered scares and bruising on the beneficiary-plaintiff and the police became involved. Following a bench trial the District Court concluded that the I-864 defendants had failed to carry their burden of proof on the defense of fraud. Although it was not contested that the marriage dissolved shortly after the beneficiary's arrival in the US, there was insufficient evidence she had fraudulently induced marriage to secure an immigration benefit.

[In February the District Court had denied a defense motion for summary judgement which raised the same assertions of fraudulent inducement. Farhan v. Farhan, Civil No. WDQ-11-1943, 2013 WL 453237 (D.Md. Feb. 5, 2013).]

The judge readily concluded that both sponsors were jointly and severally liable for I-864 support. The beneficiary-plaintiff had been unemployed for all of the 2010 calendar year, and had moved from the husband's house in March of that year. The court therefore ordered support in the amount of $10,908, which represented 125% of the Federal Poverty Guidelines for the 2010 calendar year, pro-rated for the period of time during which the beneficiary-plaintiff had resided with her husband. The beneficiary-plaintiff was instructed to seek reasonable attorney fees and costs via motion.

The Matloob decision delivers no real surprises, but provides one of the few examples where an I-864 joint sponsor has been held accountable.

Oral arguments set in first Washington State case on I-864 issues

Oral arguments have been set in the first Washington State appeals case to consider issues relating to the I-864, Affidavit of Support. The principal issue in Matter of Khan (Div. II 44814-9-II) is the appropriate duration of spousal maintenance. In Khan the trial court agreed that it was appropriate to award spousal maintenance to an I-864 beneficiary based on the husband's support duties under the Affidavit of Support. But in Khan the trial court set the duration of support shorter than the 5 terminating conditions set forth in the I-864. The appellant-beneficiary argues this shortened duration was erroneous, and that the trial court should have set duration based on the terminating conditions in the I-864. The I-864 beneficiary is represented by this blog's author, attorney Greg McLawsen. Arguments are set for June 23, 2014 at 9:00 at Court of Appeals Division II (950 Broadway, Tacoma, WA 98402).

Raising I-864 in divorce court bars litigation in federal court

What happens if an Affidavit of Support beneficiary unsuccessfully raises the issue of I-864 financial support during divorce proceedings? One court has recently held that she will be barred from bringing a federal lawsuit to subsequently enforce those rights. In Yaguil v. Lee the foreign national wife asserted her right to financial support during divorce proceedings. 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D.Cal.,2014) (Order Granting Defendant's Motion to Dismiss). It is not clear that the I-864 was mentioned in the divorce pleadings, but the beneficiary did so in a "statement of issues" filed in the divorce action. She wrote, "[s]ince the separation (19[ ]months) my sponsor Mr. Gary Lee failed to comply the I-864[sic]." In argument before the federal court the beneficiary asserted that the I-864 issue was "apparently dropped" in the divorce action, though it appears there was no citation to the record to assert this claim.

Following entry of the divorce decree the beneficiary brought a federal lawsuit to assert her I-864 support rights. The sponsor/defendant moved for dismissal, arguing the suit was barred by res judicata.

The beneficiary appears have argued only that there was no "identity of claims" as required for res judicata to apply. The brief federal court order makes it difficult to assess the basis of this argument. Assuming an I-864 claim was raised in the divorce proceeding, it seems probable the claim is identical to seeking the same financial support in a contract action. At least part of the claim.

It's important to recognize that I-864 obligations continue following divorce. So unless the wife waived her right to subsequent support (assuming this can be done) she would continue to accrue new claims for each month in which the sponsor fails to provide financial support. If the beneficiary was seeking support for time periods after the divorce, it's unclear why the claims in Yaguil would be the same as support sought up to the time of the divorce.

The decision in Yaguil also does not address the question of whether there was a "final judgment on the merits" on the I-864 issue in the divorce action. It seems the only mention of the I-864 was in the "statement of issues." Moreover, it seems the I-864 was not mentioned in final orders from the family law court. At the very least the federal court orders makes no mention of such a citation. It is possible that beneficiaries in similar situations might successfully argue that the divorce court never passed on the merits of the I-864 claim.

The Yaguil matter is yet another reason for family law practitioners to be very careful about giving attention to the I-864. Family law practitioners should screen all clients - and their partners - for foreign citizenship. If either is - or was - a foreign national it's important to pro actively explore how that individual immigrated to the U.S. and whether an I-864 was executed.

***

I thank Mr. Gary Lee for bringing the Yaguil matter to my attention.

Ante-nuptial agreements can't waive I-864 support.

A third court has held that purported waivers of I-864 support are ineffective. Toure-Davis v. Davis, NO. WGC-13-916, 2014 U.S. Dist. LEXIS 42522 (Dist. M.D. Mar. 28, 2014). In Toure-Davis v. Davis the court gave both a narrow (but plausible) and a broad (but misguided) basis for holding the waiver was ineffective.  I’m indebted to noted immigration attorney, Bob Gibbs, for bringing this decision to my attention today.  Background. Plaintiff was a citizen of Ivory Coast who married the U.S. citizen defendant on July 29, 1998. On the day of marriage the parties signed an ante-nuptial agreement. The agreement set forth a general waiver, whereby both parties agreed broadly not to seek financial support from each other, were the marriage to end. The agreement contained no language specific to the I-864. Defendant later petitioned for Plaintiff’s lawful permanent residency in the U.S. and in the process executed an I-864. After the parties separated a state court action followed, which resulted in a settlement wherein Plaintiff received certain financial support. The federal district court action then followed, in which Plaintiff sought a damages award for I-864 support.

[Side note. The court breezily concluded it had federal question subject matter jurisdiction, as the claim at stake “involves” a federal statute. This view jives with the majority, contrary to one district court in Florida which holds I-864 suits are contract actions not arising from federal statute. See Winters v. Winters, No. 6:12-cv-536-Orl-37DAB, 2012 U.S. Dist. LEXIS 75069 (M.D. Fla. Apr. 25, 2012). (It appears Defendant did not raise object to jurisdiction).]

Narrow basis. Defendant argued that Plaintiff had waived her right to collect financial support under the I-864 by signing the ante-nuptial agreement. The District Court rejected this argument first because of the timing of the agreement. Since the agreement was signed before execution of the I-864, the court reasoned that the ante-nuptial agreement was modified by execution of the I-864. Since Plaintiff is a third-party beneficiary to the I-864, the reasoning goes, execution of that form gave her new contractual rights against the Defendant, and those rights modified the previously agreed-upon rights from the ante-nuptial agreement.

Even if sound, this reasoning wouldn’t prevent parties from making enforceable waivers of I-864 rights. The timing issue can be resolved by re-executing a waiver agreement after the sponsor signs the I -864. The I-864 is signed on Day 1; on Day 2 the ante-nuptial agreement is signed and the parties thus modify their private rights under the I-864. The modification argument could also, presumably, be bypassed by a more carefully-drafted waiver agreement. Contracts routinely contain modification clauses that explain how the agreement can and can’t be modified (e.g., in writing, etc.). Why not specify that execution of the I-864 does not modify the waiver agreement?

Broader basis. Despite having rejected the validity of the ante-nuptial agreement, the court went on to offer a boarder and more confused basis for the same conclusion. The court appears to reason:

1. The “obligation of support” is “imposed by federal law.”
2. The duty of support is for the “benefit of federal and state taxpayers”, etc.
3. Defendant agreed to provide support to Plaintiff.

Thus:

Defendant therefore cannot absolve himself of his contractual obligation with the U.S. Government by Plaintiff purportedly waiving any right to alimony or support via the ante-nuptial agreement.

First of all, the court doesn’t identify what rule makes it impossible for a sponsor to waive the duty of support. Is it because such an agreement would be void as against public policy? (Hence the citation to the public purpose behind the form). Or is it because the rights involved aren’t contractual in nature? (Hence the citation to “federal law”). This is yet the most recent example of confusion about what type of rights an I-864 beneficiary possesses. At least one federal court clearly believes they are contractual in nature, and rejects federal question subject matter jurisdiction because there is no federal statutory cause of action. See Winters, supra. Other courts, as in Toure-Davis, treat the rights as statutory. As long as this confusion persists, case law about I-864 enforcement will continue to be incoherent.

Unlike the Narrow Basis for the holding in Toure-Davis, the Broader Basis lends itself to no drafting solution. On this view beneficiaries can’t waive their right to collect I-864 support, so attorneys will want to be cautious about advising clients to try. In the Western District of Washington, where I practice, no state or federal court has considered waiver of I-864 support. I will continue to advise I-864 sponsors and joint-sponsors that a waiver may be possible, but that the prevailing view is that such agreements are unenforceable. But where the sponsor has already agreed to sign the I-864, she may as well attempt to protect herself with a waiver agreement.

Another court finds prenuptial agreements unenforceable

In Shah v. Shah a second federal district court has determined that an I-864 beneficiary may not waive her right to collect financial support under the I-864.  Civil No. 12–4648 (RBK/KMW), 2014 WL 185914 (D.N.J. Jan 14, 2014) (memo. op.). In Shah, the parties had signed a prenuptial agreement prior to executing the I-864.   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 purport to waive 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....

This conclusion is not surprising, since I-864 support is not "alimony" or "maintenance" in any straight-forward sense.

But the court went on to hold that—language aside—the parties lacked authority to waive the sponsor’s support duty.  First the court noted that the “immigration regulations” list the five circumstances that terminate support obligations, ant that “a prenuptial agreement or other waiver by the sponsored immigrant” does not terminate obligations under the regulations.  This argument is probably weak since an individual may waive even constitutional rights, let alone regulatory rights.  The fact that the regulations set forth terminating conditions does not necessarily entail that the parties cannot create other terminating conditions.

But the court 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.”  The language quoted is where the INA mandates creation of the document that became the I-864, which replaced the unenforceable I-134.  But the court reasons, ‘the I-864 could not have been unenforceable if the government accepted it, the government did accept it, therefore the form must be enforceable.’  The syllogism seems perhaps a bit formalistic.

The deeper question underlying that argument is whether the parties’ rights are fundamentally statutory or contractual in nature. As noted elsewhere, courts are often unclear how they justify reliance on the INA when examining parties rights under the I-864.   Some federal courts reject subject matter jurisdiction over I-864 disputes precisely because they are contractual in nature rather than posing a federal question.  If the parties' rights are contractual, and not statutory in nature, the Shah court's reasoning seems misplaced.  Following it's syllogism, another alternative is that the government just messed up: it accepted an I-864 that was actually unenforceable because the beneficiary had waived her rights, and if the government had known better it would have rejected the Affidavit.  Moreover, the I-864 form could be modified by the USCIS to include a clause on the form itself reciting that it trumps any prior written agreement.

With the Shah decision now issued -- and only two other cases on point -- an attorney taking the bean-counting approach to law must advise her clients that prenuptial agreements cannot waive I-864 rights.  Compare Erler v. Erler, Civ. No. 12–2793, 2013 WL 6139721, at *2 (N.D.Cal. Nov. 21, 2013) (prenuptial agreements can't waive I-864 support) with Blain v. Herrell, Civ. No. 10–72, 2010 WL 2900432, at *7–8 (D.Haw. July 21, 2010) (yes they can). 

Colorado River abstention applies. Pavlenco v. Pearsall (E.D.N.Y. Nov. 27, 2013).

In Pavlenco v. Pearsall the District Court for the Eastern District of New York has offered the most detailed analysis to date on the application of abstention doctrines in the context of suing on the I-864.  No. 13-CV-1953 (JS)(AKT), 2013 WL 6198299 (E.D.N.Y. Nov. 27, 2013) (memo. order).  In Pavlenco  the parties had a pending state court divorce matter, approximately one month from trial, in which the beneficiary had sought to raise issues pertaining to the I-864.The beneficiary had sought enforcement of the I-864 in the divorce proceeding but alleged that the defendant-sponsor had noted “allow[ed]” her to do so. Subject matter jurisdiction.  The court concluded easily that it possessed federal question jurisdiction over an I-864 enforcement suit, following the prevailing view on that issue. The Pavlenco court cited only to previous federal decisions that had reached the same view.  The Middle District of Florida appears to be the only jurisdiction currently holding that federal courts lack subject matter jurisdiction over suits to enforce the I-864.  See, e.g., Vavilova v. Rimoczi, 6:12-cv-1471-Orl-28GJK, 2012 U.S. Dist. LEXIS 183714 (M.D. Fla. Dec. 10, 2012) (report and recommendation of magistrate judge). 

Younger abstention. Younger abstention prevents a federal court from considering a matter where the following conditions are met:

(1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.

Application of the doctrine turned on whether the plaintiff-beneficiary would have a full opportunity to pursue her federal claim in the state court action, and whether the federal action stood to interfere with the state court matter. Because the plaintiff-beneficiary had not yet succeeded in bringing I-864 enforcement issues to the attention of the state court, enforcement in the federal lawsuit would not have the effect of enjoining any state court action.  And the court noted that the mere existence of a parallel state court action does not implicate Younger abstention.

Colorado River abstention.  The court then considered Colorado River abstention, under which a federal court must consider the following factors:

(1) whether the controversy involves a res over which one of the courts has assumed jurisdiction; (2) whether the federal forum is less inconvenient than the other for the parties; (3) whether staying or dismissing the federal action will avoid piecemeal litigation; (4) the order in which the actions were filed, and whether proceedings have advanced more in one forum than in the other; (5) whether federal law provides the rule of decision; and (6) whether the state procedures are adequate to protect the plaintiff's federal rights.

The court found that three factors weighed in favor of abstention.  First, a stay would avoid piecemeal litigation as the court believed it was likely the state court would address the I-864 issue.  This reasoning is somewhat confusing – although the defendant-sponsor argued to the federal court that the I-864 should be raised in state court, it is unclear why the defendant would have any incentive not to fight adjudication of the issue in state court as well.  Second, the court noted the advance stage of the state court litigation (approximately a week before trial).  Lastly, the court noted that although the I-864 involved “federal law,” state courts were equipped to adjudicate I-864 obligations in the context of a divorce proceeding.  The court therefore entered a six-month stay on the federal action.

No issue preclusive effect following divorce trial. Yuryeva v. McManus (Texas).

In Yuryeva v. McManus a Texas appeals court stated clearly – although in dicta – that an immigrant-beneficiary could bring a subsequent contract action on the I-864 despite failing to raise enforcement in the context of her divorce proceeding. No. 01-12-00988-CV, 2013 WL 6198322, at *7 (Tex. App. Houston 1st Dist. Nov. 26, 2013) (memo. op.). In the divorce proceeding the beneficiary had put the I-864 into evidence and had testified that the sponsor had be failing to meet support obligations, and the sponsor’s attorney had stipulated that “there was an agreement that they were to live together and [the sponsor] would support her.”  The beneficiary did not, however, specifically request that the trial court “enforce” the I-864 support duty. For this reason the appeals court held the lower court did not err in failing to incorporate the support obligation into the divorce decree, but the appeals court stated that the contractual obligation survived.

Yuryeva aside, there is some question as to whether a divorce proceeding may have issue or claim preclusive effect on a beneficiary's right to enforce a support obligation.  For further discussion see Section II.B.2 of Suing on the I-864 Affidavit of Support.

What is household size? Erler v. Erler (N.D. Cal. Nov. 21, 2013).

In Erler v. Erler a District Court provided the most detailed discussion to date of the calculation of household size for determining the level of support obligations under the I-864.  CV-12-02793-CRB, 2013 WL 6139721, at (N.D. Cal. Nov. 21, 2013). The court began by recognizing that there is no single definition of “household size” for purpose of the Federal Poverty Guidelines that applies across all federal law contexts.  Instead, the Department of Health and Human Services defer to programs that rely on the guidelines for administering various benefits.  Indeed, the I-864 regulations do provide a definition of household size, but the definition is made “for the express purpose of determining whether the intending sponsor’s income is sufficient to suppose the intending immigrant.” Under the I-864 regulations “household size” necessarily includes the following:

• The sponsor;
• The sponsor’s spouse;
• The sponsor’s unmarried children under age 21 (not including stepchildren);
• Any person claimed as a dependent on the sponsor’s Federal income tax return for the most recent year;
• The number of non-citizens the sponsor has sponsored under an I-864, where the obligation has not terminated; and
• All non-citizens sponsored under the current I-864.

Household size may also include the sponsor’s parent, adult child, brother or sister, if that person’s income is used for the current I-864.

The plaintiff-beneficiary in Erler lived with her adult son, whose income – if imputed to her – would place her above 125% of the Federal Poverty Guidelines. Hence, the beneficiary was incentivized to argue that she was a household of one, in order to present herself as having no income.  The court rejected the argument that it was bound by the determination that the beneficiary was a household of one for purposes of the food stamps program, since among other flaws the Guidelines make clear that household definition is context specific.  Likewise, the court rejected the argument that it should look only to the sponsor-defendant for financial support, in lieu of the beneficiary’s son, as only the defendant had a contractual support obligation.  The court rejected this proposition without legal citation, “because it leads to an untenable result” that the beneficiary would be entitled to I-864 support even if she “becomes part of a millionaire’s family.”

Instead, the court determined that it must “strike a balance between ensuring that the immigrant’s income is sufficient to prevent her from becoming a public charge while preventing unjust enrichment to the immigrant.”  Where an immigrant “lives alone, or only temporarily with others, she should receive payments based on a one-person household.”  But the court believed the plaintiff-beneficiary would be “unjustly enriched” if she received income support from her I-864 sponsor, since her adult child was in fact providing support.

Note the Hobson’s choice with which an immigrant is left by this holding.  An I-864 beneficiary may elect to attempt to live on her own with no financial support – in which case she may seek recovery from her I-864 sponsor – or else she may impose herself on a family member, thereby waiving I-864 support.  Imputing income from the family member may seem unproblematic for the “millionaire” families envisioned by the Erler court, but that hypothetical is likely distant from the reality of many immigrant families.  Indeed, the beneficiary’s son in Erler earned only two and one-half times the Federal Poverty Guidelines for a household of two.