I-864 enforceability

I-864 enforceability has been a subject of litigation. Although enforcement of the I-864 obligations by individuals and government remains rare, sponsors assume that signing the affidavit is a meaningless act. Richard Hanus notes that "while it is the rare case where it is the U.S. government seeking to enforce an I-864 Affidavit of Support against a particular affiant – (ironically, a mechanism that was the basis of establishing the I-864 documentary requirement in the first place), both state and federal courts seem to be an increasingly popular forum for the I-864 to be enforced between the parties themselves and under basic contract law theories. The success of this type of lawsuit, however, will depend on whatever judicial precedent, if any, has been established in the jurisdiction at issue."^[1]

I-864 case law is somewhat incoherent because of confusion about what rights an I-864 beneficiary possesses: statutory or contractual.^[2] Every known case in which an I-864 beneficiary has sued a sponsor in state court has arisen in family law proceedings.

In Stump v. Stump, 2005 U.S. Dist. LEXIS 26002 (October 25, 2005), a federal district court in Fort Wayne, Indiana awarded the alien spouse almost $19,000. This was the amount of money she was entitled to receive from the sponsor, calculated from the day the couple separated until the date of the decision, based on her right to receive maintenance at the 125 percent of poverty level.^[3]

Federal subject matter jurisdiction

In Winters v. Winters, a U.S. District court for the Middle District of Florida held I-864 suits are contract actions not arising from federal statute.^[4] Other courts have concluded that they had federal question subject matter jurisdiction, as the claim at stake in I-864 cases "involves" a federal statute.^[5]

Prenuptial and antenuptial agreements

In Toure-Davis v. Davis, the U.S. District Court for the District of Maryland agreed with Toure-Davis that neither the antenuptial agreement nor the separation agreement ended Davis' obligation under immigration laws to provide Toure-Davis support.^[6] Specifically, the court found, "Because Defendant signed the ante-nuptial agreement before he signed the Form I-864, the sequence of Defendant's actions leads to the conclusion that the Form I-864 waived that portion of the ante-nuptial agreement concerning spousal support."^[7]

In Shah v. Shah, the U.S. District Court for the District of New Jersey found that "it would undermine the purpose of the statute to allow sponsors to present an I-864 to immigration authorities that can never be enforced by the sponsored alien due to a prenuptial agreement that is not disclosed to immigration authorities. Congress determined that for an I-864 to be valid at all, the sponsored alien must be able to enforce it at the time when it is submitted to the United States. For this reason, the Court rejects the suggestion by Defendant that Plaintiff never had the right to enforce the I-864 on the basis of a prior prenuptial agreement."^[8]

In remains an open question whether a more carefully-drafted waiver agreement could bypass the modification argument. Contracts routinely contain modification clauses that explain how the agreement can and can’t be modified (e.g., in writing, etc.). Greg McLawsen notes, "Why not specify that execution of the I-864 does not modify the waiver agreement?" The I-864 form itself does not contain any clause reciting that it trumps any prior written agreement.^[9]

The fact that the regulations set forth five terminating conditions does not necessarily entail that the parties cannot create other terminating conditions.

See also

• List of I-864 case law

References