On July 28, 2017, the California Court of Appeal, ruled that the USCIS form I-864, Affidavit of Support, creates an enforceable CONTRACT between the sponsor and an immigrant.
In Re Kumar case, an immigrant spouse asked court to enforce her right for support from her US citizen sponsor (spouse), based on the Form I-864, Affidavit of Support (“Form I-864”) that her U.S. spouse submitted to the U.S. federal government in connection with the Form I-130, Petition for Alien Relative he filed on her behalf.
The court held: "We hold that an immigrant spouse has standing to enforce the support obligation created by an I–864 affidavit in state court. We further hold that an immigrant spouse bringing such a claim has no duty to mitigate damages. Because the trial court's ruling in this matter conflicts with our holdings, we reverse. We remand to the trial court to consider the immigrant spouse's contract claim in accordance with this decision."
Facts: US citizen spouse filed a form I–130 immigration visa petition for alien relative on behalf of his foreign wife, and the petition was approved. In connection with bringing his new wife to the United States, he signed a form I–864 affidavit of support (I–864 affidavit) and submitted it to the federal government. The purpose of an I–864 affidavit is “to ensure that an immigrant does not become a public charge.” (Younis v. Farooqi (D.Md. 2009) 597 F.Supp.2d 552, 557, fn. 5.)
”Under the heading “Part 8. Sponsor's Contract,” the I–864 affidavit signed by the sponsor gave the following warning: “Please note that, by signing this Form I–864, you agree to assume certain specific obligations under the Immigration and Nationality Act and other Federal laws.” On the same page, the affidavit explained that, by signing the affidavit, the sponsor agreed to “provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size ․” The affidavit further stated, “If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I–864 that you signed, that person may sue you for this support.”
This continues recent court rulings which have expanded the scope of liability for family-based immigration sponsors through the Form I-864, as the U.S. Court of Appeals for the Ninth Circuit did in June 2017.
The purpose of a Form I-864 is to ensure that an immigrant does not become a “public charge” and receive certain publicly funded benefits that would render that immigrant inadmissible under INA § 212(a)(4).
A Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support. A sponsor must show on a Form I-864 that he/she has income and/or assets to maintain the intending immigrant(s) and the rest of his/her household at 125 percent of the Federal Poverty Guidelines.
As indicated in the instructions of the Form I-864, the affidavit of support is a contract between a sponsor and the U.S. Government. However, Part 8 of the Form I-864 states that “if an intending immigrant becomes a lawful permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under Form I-864 terminate, you must [p]provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size.”
In Re Kumar case, the California Court of Appeal looked to the statute, applicable regulations, the actual Form I-864 signed by the U.S. citizen, and federal and other state’s court’s opinions to guide its ruling. In particular, the court cited 8 C.F.R. § 213a.2(c)(2)(i)(C)(2), a federal regulation which provides that
“The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.”
Additionally, the court ruled that an immigrant spouse seeking to enforce the support obligation of Form I-864 has no duty to seek employment to mitigate damages. The court used the plain language at 8 U.S.C. § 1183a(a) and the rationale included in the case Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) to rule that “an alien’s failing to seek work or otherwise failing to mitigate his or her damages” is not an “excusing condition” of the sponsor’s obligations under the Form I-864.
In response to this case, it is important that U.S. sponsors or immigrants speak with experienced U.S. immigration attorney about the affidavit of support issue before signing any divorce documents. It is important to remember that:
*** the Affidavit of Support obligations don't end with divorce.
***Joint sponsor's obligations don't end with divorce, as well.
***An immigrant doesn't have to work or seek employment in order to mitigate sponsor's obligation of support.
***Sponsor's obligations end, for example, when an immigrant becomes a naturalized U.S. citizen, so it might be in sponsor's interests to ensure that a former spouse becomes a US citizen in order to end his or her financial support.
In Re Kumar case, an immigrant spouse asked court to enforce her right for support from her US citizen sponsor (spouse), based on the Form I-864, Affidavit of Support (“Form I-864”) that her U.S. spouse submitted to the U.S. federal government in connection with the Form I-130, Petition for Alien Relative he filed on her behalf.
The court held: "We hold that an immigrant spouse has standing to enforce the support obligation created by an I–864 affidavit in state court. We further hold that an immigrant spouse bringing such a claim has no duty to mitigate damages. Because the trial court's ruling in this matter conflicts with our holdings, we reverse. We remand to the trial court to consider the immigrant spouse's contract claim in accordance with this decision."
Facts: US citizen spouse filed a form I–130 immigration visa petition for alien relative on behalf of his foreign wife, and the petition was approved. In connection with bringing his new wife to the United States, he signed a form I–864 affidavit of support (I–864 affidavit) and submitted it to the federal government. The purpose of an I–864 affidavit is “to ensure that an immigrant does not become a public charge.” (Younis v. Farooqi (D.Md. 2009) 597 F.Supp.2d 552, 557, fn. 5.)
”Under the heading “Part 8. Sponsor's Contract,” the I–864 affidavit signed by the sponsor gave the following warning: “Please note that, by signing this Form I–864, you agree to assume certain specific obligations under the Immigration and Nationality Act and other Federal laws.” On the same page, the affidavit explained that, by signing the affidavit, the sponsor agreed to “provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size ․” The affidavit further stated, “If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I–864 that you signed, that person may sue you for this support.”
This continues recent court rulings which have expanded the scope of liability for family-based immigration sponsors through the Form I-864, as the U.S. Court of Appeals for the Ninth Circuit did in June 2017.
The purpose of a Form I-864 is to ensure that an immigrant does not become a “public charge” and receive certain publicly funded benefits that would render that immigrant inadmissible under INA § 212(a)(4).
A Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support. A sponsor must show on a Form I-864 that he/she has income and/or assets to maintain the intending immigrant(s) and the rest of his/her household at 125 percent of the Federal Poverty Guidelines.
As indicated in the instructions of the Form I-864, the affidavit of support is a contract between a sponsor and the U.S. Government. However, Part 8 of the Form I-864 states that “if an intending immigrant becomes a lawful permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under Form I-864 terminate, you must [p]provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size.”
In Re Kumar case, the California Court of Appeal looked to the statute, applicable regulations, the actual Form I-864 signed by the U.S. citizen, and federal and other state’s court’s opinions to guide its ruling. In particular, the court cited 8 C.F.R. § 213a.2(c)(2)(i)(C)(2), a federal regulation which provides that
“The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.”
Additionally, the court ruled that an immigrant spouse seeking to enforce the support obligation of Form I-864 has no duty to seek employment to mitigate damages. The court used the plain language at 8 U.S.C. § 1183a(a) and the rationale included in the case Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) to rule that “an alien’s failing to seek work or otherwise failing to mitigate his or her damages” is not an “excusing condition” of the sponsor’s obligations under the Form I-864.
In response to this case, it is important that U.S. sponsors or immigrants speak with experienced U.S. immigration attorney about the affidavit of support issue before signing any divorce documents. It is important to remember that:
*** the Affidavit of Support obligations don't end with divorce.
***Joint sponsor's obligations don't end with divorce, as well.
***An immigrant doesn't have to work or seek employment in order to mitigate sponsor's obligation of support.
***Sponsor's obligations end, for example, when an immigrant becomes a naturalized U.S. citizen, so it might be in sponsor's interests to ensure that a former spouse becomes a US citizen in order to end his or her financial support.
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