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Where do I sue for I-864 support?

https://www.youtube.com/watch?v=4ScILHvdAdE
So you’ve determined that you qualify for immigration financial support. You’ve politely asked your I-864 sponsor to provide the support, and he’s politely (or not so politely) said no. Now what? How can you make and I-864 sponsor provide financial support if you’re entitled? Where do you file a lawsuit based on the I-864, Affidavit of Support?

Here’s the short answer: potentially in either a state or a federal court; if you’re in the middle of a divorce, you might be able to enforce your rights in that court, but that’s less certain. The I-864 statute (8 U.S.C. § 1183a(e)(I)) provides that,

[a]n action to enforce an affidavit of support… may be brought against the sponsor in any appropriate court… by a sponsored alien, with respect to financial support.

Okay… but what counts as an “appropriate” court for a beneficiary who needs support? Let’s take a closer look.

 

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Divorce court

Very often the person interested in seeking I-864 support is in the process of getting divorced from her immigration sponsor. So it makes sense for the beneficiary to ask, can I use the divorce court to enforce my I-864 rights? The short answer is maybe.

In divorce courts a judge has the power to order alimony, also called “spousal maintenance” (I’ll use the term alimony to keep things simple). Every state has it’s own law about what factors the judge should consider in making an alimony award. Typically these will include considerations like the length of the marriage and the ability of an individual to support herself. Well, can the judge use the I-864 to order the sponsor to pay alimony? Is that something she may consider?

Several courts have considered this issue, and they don’t all agree. In Pennsylvania, for example – in the Love v. Love case – the court said it should apply the I-864 when setting alimony. The appeals court basically said that the Affidavit of Support was a reason to set higher-than-normal alimony.

But in both Michigan and Washington, courts have said that they will not order alimony based on the I-864. In the Washington case, where I represented the beneficiary, the appeals court said that alimony can’t be used to enforce a contract obligation, and that the I-864 is basically just a contract. Contracts, the court said, aren’t a reason to order higher-than-normal alimony.

So the bottom line is that you shouldn’t assume that alimony can be used to get I-864 support. But don’t worry, there are alternatives.

Federal court

Want to sue for I-864 support? Well, you could make a federal case out of it. Most federal courts have agreed that they have the authority to hear claims by I-864 beneficiaries against sponsors.

This is a little bit technical, but here are the details, if you want to know. To bring a lawsuit of any sort, the court has to have “subject matter” jurisdiction, and also “personal jurisdiction.” Personal jurisdiction is the authority to make a ruling that impacts a certain person. Subject matter jurisdiction is the authority to decide a particular type of lawsuit, such as a type of criminal case or a type of financial case. Pretty much every federal court that has looked at these issues has agreed that it has both types of jurisdiction in I-864 lawsuits, but there are some exceptions.

In terms of subject matter jurisdiction, most federal courts haven’t even seriously questioned whether they can decide I-864 lawsuits. There is both a federal statute and federal regulation that seem to give an I-864 beneficiary the right to sue her sponsor. Federal courts have the authority to decide any case involving a question of federal law. So most courts seem to take note of the statute and easily conclude they have subject matter jurisdiction over I-864 lawsuits.

The one exception to this has been a single federal court in the Middle District of Florida. (The federal court system is made up of lots of districts. Even though they’re all part of the same system, they’re not required to agree with other district court decisions.) That court views I-864 cases as just contract lawsuits. Under federal law, a federal court doesn’t have subject matter jurisdiction in a contract lawsuit unless the parties are in different states. Congress is supposed to be very clear when it creates a right to bring a federal lawsuit, and this District Court says that congress wasn’t clear enough in the I-864 statute.

But the Middle District of Florida is definitely the exception. Most federal courts agree that they do have authority to decide I-864 lawsuits. Also, if the sponsor and beneficiary are in separate states then the beneficiary can bring a federal on that basis (called diversity).

So what about personal jurisdiction (authority over the person)? This issue is easier. When a sponsor signs the I-864 he agrees to submit to the personal jurisdiction of any competent court. This sort of term is very common in contracts of all sorts. Chances are that last time you bought something that cost more than $100 you signed an agreement that specified what court would have jurisdiction over you. These terms are called “waivers” of personal jurisdiction. Basically saying, “you might not normally be able to sue me in that court, but I’ll agree to be sued there if we have a dispute.” A very common type of contract clause.

Since waivers of jurisdiction are common, and the contract language in the I-864 is very clear, federal courts usually agree they have personal jurisdiction over sponsors.  The most notable exception to approach is a Federal District Court in Utah. That court said that since the sponsor hadn’t had enough contact with Utah he couldn’t be sued there. The court’s decision is hard to understand, and other courts have not taken the same approach.

So the bottom line is that you can usually bring a law suit in federal court for I-864 support.

State court

What if you’re not in divorce proceedings – or even if you are? Can you use the state court system to enforce your I-864 rights? Often yes.  Remember what we were saying above about the I-864 being a type of contract? Well, a state court of “general jurisdiction” has the authority to decide contract lawsuits. In fact, often these courts are the only place to enforce contracts.

But isn’t the I-864 a “federal law” issue? I hear that a lot from lawyers, who frankly should know better. First of all, state courts decide federal law issues all the time. Civil rights lawsuits, for example, are governed by federal law, and you can bring these in state courts. Judges in state courts need to consult federal law all the time, so it really makes no sense at all to say that I-864 cases don’t belong in state court.

In most states there are more than one court capable of handling I-864 claims, one of these will be limited in the maximum dollar value of lawsuits. A typical I-864 lawsuit – though not all – can be brought in either, since the dollar value will typically be under the maximum value of the lower state court.

Small claims court

Way down here at the bottom is an option that folks really don’t seem to consider often. Why not just take your I-864 sponsor to small claims court. Here are some positives: (1) it’s very inexpensive; (2) it’s typically much faster than any other court; and (3) it’s relatively informal and doesn’t have all of the complex procedures of other courts.

On the other hand, there are drawbacks. I can pretty much guarantee that the small claims judge has never seen an I-864 before. This means you’ll be explaining all of the law to the judge for the first time. On a related note, you typically can’t have a lawyer in small claims court, so you won’t be getting any help. And if the case is unsuccessful you could be prevented from bringing another suit in a higher court.

Still, in some circumstances you’re not going to be able to get support from your sponsor without a lawsuit. If you simply can’t find an attorney it may be worth giving small claims court a try. (There is, of course – hint, hint – one law firm that is happy to talk to you about your potential claim.).

 

 

Photo credit: Kittisak @ freedigitalphotos.net

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

IMG_0985This 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.

 

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.

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

ID-100264480A 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.

 

 

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

Motion to Dismiss denied in Federal I-864 litigation

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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.

 

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?

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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.

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

What is sponsorship deeming?

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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.

 

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?

Credit: Stuart Miles
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

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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.