The Contractual Duty to Support an Immigrant Spouse

Ever heard of the I-864 Affidavit of Support? If you might ever represent a noncitizen, or someone married to an immigrant, read on. Your client may have signed a contract agreeing to support the noncitizen indefinitely.

What is the I-864?

The I-864 Affidavit of Support is a contract between a citizen “sponsor” and the U.S. Government. See 8 U.S.C. § 1183a(a)(1). The form is required when an immigrant seeks permanent status based on a certain family visas, including those based on marriage to a U.S. citizen. The sponsor promises to support the noncitizen at 125% of the federal poverty guidelines — that’s $13,963 for a single-person household plus $4,950 for each additional member. The form is necessary to show that the noncitizen will not become a drain on public resources (i.e., a “public charge”).

Neither separation from a spouse nor dissolution of the marriage ends a sponsor’s duties to support the noncitizen. Only 5 events end the sponsor’s responsibilities: the sponsored immigrant

1. becomes a U.S. citizen;
2. can be credited with 40 quarters of work;
3. is no longer a permanent resident and has departed the U.S.;
4. after being ordered removed (i.e., deported), seeks permanent residency based on a different I-864; or
5. dies.

A sponsored immigrant is not permitted to receive means-tested public benefits. Means-tested benefit programs are those basing eligibility on a person’s financial resources, such as food stamps, Medicaid, and Supplemental Security Income (SSI); the category does not include short- term, non-cash relief programs such as emergency Medicaid. Note that it is permissible for the immigrant’s U.S. citizen child to receive means-tested benefits.

If the noncitizen receives means-tested public benefits, the government can sue the sponsor to recover that cost. But a sponsor’s liability under the I-864 does not end with government programs.

Suing on the I-864 contract

Courts have uniformly held that a sponsor’s support obligations are contractually binding. See, e.g., Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008). This comes from the terms of the form, which meet the requirements for contract formation. Courts also look to the language of the Immigration and Nationality Act, including the mandate that the affidavit of support be “legally enforceable.” See 8 U.S.C. § 1183a(a)(1)(B).

The noncitizen may sue on the contract in state or federal court to enforce support obligations against the sponsor. To prove breach, the noncitizen shows that the sponsor failed to provide the required level of financial support. Courts have rejected a number of contract defense theories, including lack of consideration and unconscionability (even given a short marriage). The measure of damages is simply the amount needed to restore the level of support required by the agreement.

In a dissolution action

The I-864 has been built into dissolution awards both as a factor in calculating maintenance and as a contractual award. Litigants can bring the I-864 into a dissolution action by pleading a contractual cause of action in the petition or the answer. See, e.g., In re Marriage of Sandhu, 207 P.3d 1067 (Kan. Ct. App. 2009). Courts sometimes consider the I-864 when calculating spousal maintenance. See, e.g., Barnett v. Barnett, 238 P.3d 594 (Alaska 2010). But it is not clear how the I-864 would factor into Washington’s statutory scheme for spousal maintenance. Under which statutory factor would an I-864 contract obligation fit? See RCW 26.09.090. Moreover, building an I-864 into spousal maintenance may raise constitutional concerns, due to the special enforcement mechanisms available regarding maintenance. Cf. Love v. Love, 33 A.3d 1268, 1279 (Pa. Super. Ct. 2011) (Freedberg., J., dissenting) (arguing that incorporating the I-864 into a maintenance order could lead to unconstitutional imprisonment for private debt); Const. art. I, § 17 (forbidding imprisonment for debt).

Spot the issue

Keep your eyes open for the I-864 when you encounter a case with a noncitizen spouse. For more information, read this journal article that discusses I-864 issues in greater detail.