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
(5) dies. 8
U.S.C. § 1183a(a)(2), (3).
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.
