Form I-864 Enforcement Litigation

How Green Card Holders Can Get Finanial Support If Separated or Divorced

Sara & Mike

Sara was a foreign exchange student excited to be in the US for the first time. She frequented a coffee shop near campus where she met Mike. Mike was an older, established professional who seemed very worldly to Sara. They hit it off instantaneously. Within 6 months, Sara was pregnant and they were married. Mike was a US citizen and sponsored Sara for her green card. As part of the immigration visa process, Mike signed a Form I-864, Affidavit of Support.

Unfortunately, the relationship quickly soured. Mike became increasingly controlling and jealous. Eventually, the conflicts grew and they separated. Sara was forced to leave with her baby. Mike earned all of the money in the relationship and spitefully refused to support Sara except for a small amount of child support. Sara didn’t have a job and was ineligible for most public assistance. She survived by relying on friends, but that could only last for so long. A women’s shelter began to look like a realistic possibility.

People like Sara are usually unaware that a lifeline exists in the Form I-864, Affidavit of Support, submitted with their immigration application. Sara and others like her have the ability to compel their spouses or ex-spouses to financially support them and keep them afloat while they get their lives together. They can hire a private attorney to help them even if they have no money to spare. If you find yourself in a similar situation, there is reason to be hopeful, even confident your situation will get better. We can help.

Introduction

The lawyers at Sarraf Gentile LLP are available to help immigrants enforce their rights of financial support against individuals who sponsored their immigration.

These financial rights are based on a Form I-864, Affidavit of Support, that sponsors sign in support of the immigration of a fiancé or spouse.

When sponsors refuse to provide the financial support they agreed to, the lawyers at Sarraf Gentile LLP can file an I-864 enforcement action to force their compliance and payment.

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What is a Form I-864, Affidavit of Support?

Many immigrants come to the U.S. with the support of a sponsor.  These “sponsors” are typically fiancés, spouses or immediate relatives. They sign a Form I-864, Affidavit of Support. This document states that the sponsor will financially support the immigrant if the immigrant is unable to earn enough to live. The Affidavit of Support is a critical part of an immigrant’s application. Once the sponsor signs it, the affidavit becomes a binding and enforceable contract between the sponsor and the U.S. government, of which the immigrant is a beneficiary. What many people don’t realize is that this contract is enforceable by the beneficiary as well.

The Affidavit of Support is part of longstanding federal law that prohibits the immigration of people likely to become a “public charge” — dependent on the American public for financial support. Therefore, the obligation of financial support is to help ensure that if the immigrant cannot earn enough to support themselves they do not become dependent on the government or tax-payers for assistance (e.g., food stamps, unemployment benefits or Medicaid). The sponsor is financially responsible for them. Page 6 of the Form I-864 makes this crystal clear.

By signing the Affidavit of Support, sponsors ensure that immigrants earn at or above 125% of the Federal Poverty Guidelines, which is about $1,300 per month for a single adult. The amount is greater when dependents are involved.

Do You Qualify to Obtain Financial Support From Your Immigration Sponsor

Many immigrants – especially those recently divorced, separated from their spouse or in a dangerous domestic situation – struggle to support themselves. This is made more difficult if children are involved.  But without U.S. citizenship, these immigrants can only receive very limited goverment aid. Help often comes from friends or charitable organizations, but they are frequently inadequate.

To determine your qualifications for this kind of financial support, consider these three questions:

  1. Did you immigrate to the United States? This means that if you are in the U.S. as a Lawful Permanent Resident (LPR) or “green card” holder, you may qualify, even if your green card is conditional. The question is whether you ever held (or currently hold) status as a U.S. resident.
  2. Did your fiancé or spouse sponsor your immigration? The Form I-864, Affidavit of Support, applies in almost all cases where a family member files a Form I-130. If you got your U.S. status by marriage (IR-1/CR-1), as a fiancé (K-1), or through other family-based petition, this form was probably used.
  3. Are you unemployed or making less than $1,300 a month? If you are unemployed or have been making (or currently make) less than about $1,300 per month, you could be entitled to financial support from your sponsor. Additional support is available if you have sponsored dependents.

If you answer YES (or even maybe) to these questions, you may have a legal claim for financial support from your immigration sponsor. This support is based on the Form I-864, Affidavit of Support.

The Benefits of I-864 Financial Support

The Form I-864, Affidavit of Support, requires sponsors to financially support their immigrant beneficiaries by paying them an amount equal to the difference between the immigrant’s actual income and 125% of the federal poverty guidelines.  These guidelines are published each year by the U.S. Department of Health and Human Services.  You can view the guidelines here.

The poverty guideline amounts are slightly adjusted upwards every year.  For 2021, the annual poverty line for a household of one is $12,880 per year, 125% of which equals $16,100 per year or $1,342 per month.

The Duration of I-864 Financial Support

The Affidavit of Support is considered “executed” once it is signed by the sponsor and submitted to the immigration agency.  Once executed, it becomes a binding and enforceable contract between the sponsor and the U.S. government, of which the immigrant is a beneficiary.  The sponsor’s legal responsibility of financial support starts the moment the immigrant obtains immigration status based on the sponsor’s Affidavit of Support.  This obligation of financial support continues until one of five events occur:

  1. Citizenship. If the immigrant becomes a U.S. citizen.
  2. Work Credits. If the immigrant receives credit for 40 quarters of work.
  3. Departure. If the immigrant is no longer a permanent resident and departs the U.S.
  4. Another Sponsor. If the immigrant obtains status based on another sponsor.
  5. Death. If the immigrant or sponsor dies.

Divorce “does not” end these obligations.  And the duration of financial support is indefinite.  Please note, however, there are special considerations for immigrants who decide to self petition under the Violence Against Women Act (VAWA).

Unfortunately, many sponsors refuse to honor their promise and legal duty of financial support.  Their refusal forces immigrants into a difficult position – dependent on friends and charity for support.  Fortunately, the same law that creates this immigration right also provides the right to go to court to obtain this financial support.

I-864 Enforcement Action

The same law that created the Affidavit of Support recognizes that in some cases sponsors resist fulfilling their financial obligations. In those instances, the law allows immigrants to bring an action to enforce their right to get financial support.

The Immigration and Nationality Act (INA) provides that the Affidavit of Support is enforceable by immigrants. The INA at 8 U.S.C. § 1183a(e)(1) confers to the immigrant a private right of action against the sponsor to enforce the right to financial support under the Affidavit. Because the immigrant’s claim is under federal law, the immigrant can file a lawsuit in any Federal District Court. And by signing the Affidavit of Support, the sponsor already agreed to submit to the jurisdiction of the court.

The only defense available to sponsors who choose to fight these actions are the five terminating events discussed above: (1) Citizenship; (2) Work Credits; (3) Departure; (4) Another Sponsor; or, (5) Death. Unless a sponsor can demonstrate that one of those five events have occurred, they remain responsible under the contract. No other defenses exist.

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The Right Experience: The attorneys at Sarraf Gentile LLP are accomplished litigators. We have decades of complex litigation experience in federal courts nationwide. We’re used to litigating high stakes issues. We’ve represented many people in difficult situations, against adversaries with nearly unlimited resources. We don’t get intimated. This is not our first rodeo.

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