I-864 Affidavits of Support: Who Can Sue, When, and Where?
Many foreign nationals trying to obtain permanent U.S. residence through family-based or employment-based applications must have Form I-864 (Affidavit of Support) filed by a sponsor. This requirement is designed to ensure that foreigners who are likely to become public charges will not be admitted into the United States.
Form I-864 is a contract between the sponsor, who may be a lawful permanent resident or a U.S. citizen, and the U.S. government, for the sponsor to to provide financial support for the beneficiary sufficient to maintain him or her at an income in the amount of at least 125 percent of the federal poverty guidelines. It is clear that if a sponsored immigrant applies for means-tested public benefits, the government can seek reimbursement from the sponsor pursuant to the I-864 Affidavit of Support. But what happens when the sponsor fails to fulfill their obligation to the beneficiary? Can the sponsored party/beneficiary sue for the promised level of support?
Can a Sponsored Immigrant Sue for Support Under Form I-864?
The Immigration and Naturalization Act (INA) requires that the I-864 Affidavit of Support be enforceable as a contract, but who, besides the government, can sue for enforcement? In addition, a number of federal courts have “consistently found that Form I-864 constitutes a legally binding and enforceable contract between a sponsored immigrant and the sponsor executing the form.” Cheshire v. Cheshire, 2006 U.S. Dist. LEXIS 26602 at *9 (M.D. Fl. May 4, 2006).
Many beneficiaries under the Affidavit of Support are spouses or fiancé(e)s of sponsoring individuals; these sponsors should be aware that divorce will not terminate their obligation. Per Cheshire, a spouse's obligation to support the beneficiary continues until the obligation “expires by law.” This expiration occurs only upon the occurrence of one of five defined events: (1) if the sponsor or the sponsored immigrant dies, (2) the sponsored immigrant becomes a U.S. citizen, (3) the sponsored immigrant permanently leaves the U.S., (4) the sponsored immigrant is subject to removal, but applies for and obtains, in removal proceedings, a new grant of adjustment of status, based on a new affidavit of support, if one is required, or (5) the sponsored immigrant can be credited with 40 quarters of work under the Social Security Act.
Where Does a Sponsored Immigrant Go to Sue Under Form I-864?
The governing statute [8 U.S.C. §1183a(b)(2)] provides that the sponsor agrees to submit to the jurisdiction of any federal or state court for purposes of actions brought under the statute. However, it's important to note that once a claim pursuant to the I-864 Affidavit of Support has been disposed of in state court, a federal court may be precluded from considering such a claim. However, it's possible that if the sponsored immigrant is not looking to overturn the prior state court judgment, but is seeking to bring a new claim under the Affidavit of Support, a federal court may agree to hear the claim.
This distinction is far from clear, however. Therefore, a sponsored immigrant who is getting divorced should make sure that his or her divorce attorney calls the sponsor's obligation under the I-864 Affidavit of Support to the judge's attention, as there is no guarantee the sponsored immigrant will later get to raise a claim in federal court.
If you have questions or concerns about how signing an I-864 Affidavit of Support or a prenuptial agreement affects your rights or obligations, or if you are a sponsored immigrant and wonder if you can sue your sponsor for support under Form I-864, contact Howard County, MD immigration lawyer Van T. Doan.
Read more about the I-864 Affidavit of Support: