August 13, 2014–Unique Texas Divorce Case Highlights Little-Known Immigration Clause
Affidavit of Support = A Contract of Support
I. Beginning and End of the Contract
a. Contract begins when the alien becomes a permanent resident (not when the 1-864 is signed)
b. Contract ends if:
i. Alien becomes a U.S. Citizen
ii. Alien can be credited with 40 qualifying quarters of coverage under Title II of the Social Security Act, 42 USC §401 et seq.http://apps.state.or.us/caf/
iii. Alien ceases to hold Lawful Permanent Resident status (Green Card Holder) and leaves the U.S.
iv. Alien is in removal proceedings, obtains a grant of new Adjustment of Status and with that, a new Sponsor
v. Alien dies
vi. Sponsor dies
II. What is the Sponsor Promising?
a. Sponsor agrees to support the Alien at 125% of the Poverty Guidelines Level. INA §213A.
III. Who Can Enforce the Contract?
b. Federal Government
c. State Government or Municipality/County/Etc.
d. Any other entity that provides any means-tested public benefit[1. Means-tested public benefit means either a Federal means-tested public benefit, which is any public benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds has determined to be a Federal means-tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, or a State means-tested public benefit, which is any public benefit for which no Federal funds are provided that a State, State agency, or political subdivision of a State has determined to be a means-tested public benefit. No benefit shall be considered to be a means-tested public benefit if it is a benefit described in sections 401 (b), 411 (b), 422(b) or 423(d) of Public Law 104-193.] to the Alien
e. Not the USCIS
IV. Where Can the Contract Be Enforced?
a. Any Federal Court
b. Any State Court
V. How Does the Suing Party Get the Sponsor’s Information?
a. Agencies that provide means-tested public benefits may submit Forms G-845 and G-845S to USCIS to obtain the name, address and social security number of the sponsor
b. Note: Sponsors must notify the Attorney General and the state in which the alien lives of any address changes for the entire time of the support obligation
i. Failure to provide notice can result in fines from $250 to $2,000, or
ii. If the Alien has received means-tested public benefits, $2,000 to $5,000
VI. Joint Sponsors Have Accepted Joint and Several Liability for the Support Obligation
a. Joint Liability means that the support obligation may be enforced against the sponsor and joint sponsor so that each may be liable for a portion of the total amount due.
b. Several Liability means that the alien or any federal, state or local agencymay choose to sue only the sponsor or Joint Sponsor for the entire amount.
VII. The 1-864 Survives Divorce and is Separately Enforceable as a Contract2
- Tomheim v. Kohn, No. 00CV5084 (SJ), 2002 WL 482534 (E.D.N.Y. March 26, 2002)
- Immigrant vs. Father in Law
- Court found Father in Law not liable because he signed the 1-134 not the I-864
- Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dis. LEXIS 28961 (M.D. La. May 27, 2004)
- Immigrant Wife sued husband for support under I-864
- Court found wife entitled to specific performance
- Husband ordered to pay support at 125% of federal poverty guidelines
- Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 WL 120810 (M.D. Fla. May 4, 2006)
- Immigrant ex-wife sued U.S. Citizen ex-husband for enforcement of I-864
- Court found for wife but 125% level should be reduced by income wife receives from other sources
- Stump v. Stump, No. 1:04-cv-253-TS, 2005 WL 2757329 (N.D. Ind. October 25, 2005)
- Immigrant ex-wife sought enforcement of I-864 when she could not find employment
- Court found ex-husband liable at 125% of poverty guidelines
- Court made damages calculation based on contract law to place wife in the position she would have been in if there had not been a breach
- Younis v. Faroai. Civil No. CCB-07-1393 (Feb. 7, 2009)
- Immigrant ex-wife receiving alimony and child support sues ex-husband in federal court solely to enforce I-864
- Court found husband’s obligation should be reduced by amount of alimony paid to wife, but not by amount of child support.
- Court reduced obligation amount by wife’s income from part-time employment
- Court dicta – Sponsor would still be liable even if immigrant were unwilling or unable to find employment