On July 28, 2017, the California Court of Appeal, First District handed down an interesting decision in a marital dissolution proceeding, In Re Kumar, during which an immigrant spouse sought to enforce her contractual right for support, based on the Form I-864, Affidavit of Support (“Form I-864”) that her U.S. spouse submitted to the U.S. federal government in connection with the Form I-130, Petition for Alien Relative he filed on her behalf. The court agreed with the immigrant that she had “independent standing to enforce the obligations of an I-864 affidavit against her sponsor, and may bring such an enforcement claim in state (or federal) court.” This continues recent court rulings which have expanded the scope of liability for family-based immigration sponsors through the Form I-864, as the U.S. Court of Appeals for the Ninth Circuit did last June.
Introduction to Form I-864, Affidavit of Support
The purpose of a Form I-864 is to ensure that an immigrant does not become a “public charge” and receive certain publicly funded benefits that would render that immigrant inadmissible under INA § 212(a)(4). A Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support. A sponsor must show on a Form I-864 that he/she has income and/or assets to maintain the intending immigrant(s) and the rest of his/her household at 125 percent of the Federal Poverty Guidelines.
As indicated in the instructions of the Form I-864, the affidavit of support is a contract between a sponsor and the U.S. Government. However, Part 8 of the Form I-864 states that “if an intending immigrant becomes a lawful permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under Form I-864 terminate, you must [p]provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size.”
In Re Kumar
In this case, the California Court of Appeal looked to the statute, applicable regulations, the actual Form I-864 signed by the U.S. citizen, and federal and other state’s court’s opinions to guide its ruling. In particular, the court cited 8 C.F.R. § 213a.2(c)(2)(i)(C)(2), a federal regulation which provides that
“The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.”
Additionally, the court ruled that an immigrant spouse seeking to enforce the support obligation of Form I-864 has no duty to seek employment to mitigate damages. The court used the plain language at 8 U.S.C. § 1183a(a) and the rationale included in the case Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) to rule that “an alien’s failing to seek work or otherwise failing to mitigate his or her damages” is not an “excusing condition” of the sponsor’s obligations under the Form I-864.
Effects of Case
It is likely that the ruling in In Re Kumar will be used to argue that a California court should strike down any provisions in a prenuptial agreement or divorce decree that waive spousal support when a Form I-864 has been filed by a U.S. sponsor. In response to this case, some California divorce attorneys may attempt to make the filing of a naturalization application a condition of any divorce settlement. It is critical that U.S. sponsors or immigrants speak with experienced U.S. immigration counsel about this important issue before signing any divorce documents.