Sunday, October 1, 2017

The Form I-864, Affidavit of Support: A tool for helping green card holders gain self-sufficiency

Greg McLawsen,
Managing Attorney

A young woman, Saanvi, walks into your office. She is from India and is in the process of leaving her husband who helped her immigrate to the United States. After moving to the States, he quickly became abusive, and Saanvi fled to a women’s shelter. She is looking for employment, but has limited work history and struggles with English. Since she only recently gained status as a green card holder, she does not qualify for public benefits.
How can an advocate help Saanvi meet her basic needs while she struggles to become self-sufficient? I suggest you consider Saanvi’s possible rights under Form I-864, Affidavit of Support. 
By facilitating her immigration to the U.S., Saanvi’s husband entered into an enforceable contract to provide her with financial support. The level of support, while modest, must be provided for an indefinite period potentially for the duration of Saanvi’s life. She has the option of enforcing her financial rights in state or federal court, and may get her attorney fees and costs for doing so.
Immigration background.
Any foreign national wishing to enter the U.S. is screened through a laundry list of statutory grounds of inadmissibility. These range from crime-related grounds to health-related grounds. See 8 U.S.C. § 1182. A long-standing ground of inadmissibility has barred an individual likely to become a “public charge.” 8 U.S.C. § 1182(a)(4).
The I-864, Affidavit of Support (available here) is submitted by the U.S. immigration visa petitioner. By signing the form, the sponsor guarantees to provide financial support to a foreign national beneficiary. The sponsor promises to ensure that the immigrant has income at or about 125% of the Federal Poverty Guidelines. 8 U.S.C. § 1183a(a)(1)(A). Under 2017 guidelines, that is $1,256 per month for a household of one. The sponsor’s support duty starts when the immigrant becomes a U.S. resident. 8 C.F.R. § 213a.2(e).
The I-864 is required in all family-based immigration cases, including marriage- and fiancée-based visas. Any family-based visa since 1996 will have required an I-864 prior to approval, with almost no exceptions. In short, if your client obtained a green card through a family member, you can assume that the Form I-864 was used.
How long does the support duty last?
The sponsor’s support duty lasts potentially forever. It ceases only when one of the following events occur. The beneficiary:
(1)  becomes a U.S. citizen;
(2) can be credited with 40 quarters of work under the Social Security Act;
(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
A couple’s separation or divorce does not end the sponsor’s duty. See Hrachova v. Cook. Because a green card holder is under no obligation to become a citizen, she could remain in the U.S. as a permanent resident for the duration of her life.
Additional sponsors.
In addition to the immigration petitioner, an additional individual may also be responsible for supporting the green card holder. If the visa petitioner has inadequate financial wherewithal, an additional “joint-sponsor” may be used. 8 C.F.R. § 213a.2(c)(2)(iii)(C). The joint sponsor may be any adult U.S. citizen or lawful permanent resident currently residing in the United States. 8 U.S.C. § 1183a(f)(1). Joint sponsors tend to be family or close friends of the primary sponsor.
Second, the immigration petitioner can use the income of qualifying household members to meet the requisite support level. The household member then becomes responsible for providing support to the green card holder.
Suing the sponsor for financial support.
Established court cases make it very clear that a green card holder has the legal right to bring a lawsuit under the Form I-864. If her income falls beneath 125% of the Poverty Guidelines, she can sue her sponsor to make up the missing income.
The green card holder can bring her lawsuit in either state or federal court. Florida is the only jurisdiction where a federal court has refused to hear these cases. See Winters v. Winters, No. 6:12-cv-536-Orl-37DAB, 2012 U.S. Dist. LEXIS 75069, at *5 (M.D. Fla. Apr. 25, 2012).
A court should enter a judgment equal to 125% of the Federal Poverty Guideline for the period where the sponsor should have been providing support. This is reduced by whatever actual income the green card holder has been earning. Additionally, the court can order the sponsor to continue providing monthly support until his obligation under the Form I-864 ends.
The court should also require the sponsor to pay all of the green card holder’s legal costs and attorney fees. 8 U.S.C. § 1183a(c). That is extremely important, as it makes it possible for green card holders to bring support lawsuits even when they cannot pay an attorney.
Raising the Form I-864 in divorce proceedings.  
Often a green card holder will learn about her support rights while she is going through a divorce. Jurisdictions take different views on whether the family law proceeding can be used to enforce the Form I-864. This can be done in California, for example, but not in Washington State. Compare Kumar v. Kumar with Matter of Khan.
If the green card holder is in the process of getting divorced, her situation must be handled with great care. If she does not assert her Form I-864 rights in a divorce proceeding, then she could lose the right to do so in the future. See Nguyen v. Dean (granting defendant’s motion for summary judgment). On the other hand, if she does an ineffective job of arguing the Form I-864 issues, this can also prevent them from being asserted in a later lawsuit. It is critical that a green card holder get competent legal advice about where and how to assert her Form I-864 claim.
What should you do for your clients?
First, I strongly recommend that all advocates screen their clients for immigration status. Most are doing this already. If your client is a green card holder, then you should assess whether she gained that status through a family member – especially her current or former spouse. If she did, and if her income is below $1,256 per month, then she may have a viable claim for support against her sponsor.
If you want to assess your client for a possible Form I-864 claim, I am happy to help. You can visit http://www.i-864.net/get-help/ to get a free case assessment to determine whether your client has a viable claim. If she does have a viable claim, we may be able to represent her at no upfront cost. We represent green card holders in all 50 states.

For more detailed articles about the Form I-864, you can visit our resource library here.