A new immigrant to the United States is required to have a sponsor(s) who asserts that the sponsor will financially support the immigrant. An individual sponsored in this way who is a legal permanent resident, commonly referred to as a “green card” holder, may be able to make a claim for monthly support payments in a dissolution based on the immigration affidavit of support. Immigration affidavits of support as a basis for claiming spousal support is a relatively novel claim. Binding law in Minnesota on the topic of enforcing affidavit of support as a contract does not exist at the time of this writing. This note is for informative purposes only and to provide a starting point for attorneys interested in pursuing this type of claim.
The “Affidavit of Support”, form I‐864 is a document required to become a green card holder. This document may entitle the green card holder, or sponsored immigrant, support up to 125% of the federal poverty guidelines from their sponsor, who is often their spouse. If your client makes more than 125% of the federal poverty guidelines, this tip does not apply. If your client has not yet obtained their green card, their sponsor may not have filed out form I‐864, but form I‐134 which does not create the same contractual rights.
WHY BRING AN IMMIGRATION BASED SUPPORT CLAIM?
A support claim based on an affidavit of support is distinct from a claim of spousal maintenance. An immigration based support claim has several advantages versus spousal maintenance (but you can and should bring both claims where appropriate). Be aware that the Court could choose to offset a contract amount with maintenance, or vice versa. Also, if maintenance was awarded at a rate at or above 125% of the federal poverty guidelines, your client would not be eligible to enforce the I‐864 contract. Reasons to seek an immigration based support claim include:
- Length of time‐ the I‐864 provides for payments until: sponsored immigrant earns 40 quarters of qualified social security (typically 10 years) or when the green card holder (sponsored immigrant) becomes a citizen (at least 5 years) or when they are ordered removed. This could be helpful for clients in short term relationships.
- Payors Income Not a Factor – An immigration based claim is not based on family law factors in Minn. § 518.552 like duration of relationship or sponsor’s ability to pay.
- Frequency of Payments – May be able to get monthly payments for your client where maintenance would not typically allow for payments‐ such as when the sponsor is receiving disability, or has not been working.
- Tax Implications – Can you offer to drop the issue in exchange for property like a payment of a 401K at a higher rate so that this will not be reported as income on taxes? Otherwise, report as income on taxes.
Immigration based claims of support also have some disadvantages when compared to spousal maintenance:
- Contract Claims are Dischargable – Contractual rights are dischargable in bankruptcy. One option is to get an agreement from the other party to secure the debt with real property or an interest in a 401K.
- No Binding Authority – There is no binding precedent authority on enforcing the I‐864 as a contract right in Minnesota. Therefore results may vary from judge to judge and venue to venue. The attorney bringing the claim will also need to brief the court on the issues as it may be completely new to the hearing officer. If you are representing the sponsor, there are issues regarding the congressional intent of the form, and whether it was created as a way to reimburse the government for assistance a sponsored immigrant receives, or whether the sponsored immigrant has the right to bring the claim as an individual, and whether jurisdiction is appropriate in a state family law court.
TIPS ON BRINGING A CLAIM:
Step 1: You will need a copy of your client’s affidavit of support, form I‐864.
- You can request a copy of this form or other immigration records, request them by filling out and faxing an immigration Freedom of Information Act form. This form can be found at www.uscis.gov under the “forms” section as form G‐639.
Step 2: Arguing jurisdiction in family court is appropriate
Since this is an issue of first impression in Minnesota you may need to argue why the trial court has jurisdiction to address this claim, especially because you are asking a state court to enforce a federal law contract issue. Possible arguments for the court having jurisdiction over the claim include:
- Immigration forms involve federal law, and jurisdictions are split as to whether the person being sponsored has the right to sue on their own behalf, or whether only the government has the right to sue on behalf of assistance they provide when the sponsored party falls below 125% of the federal poverty guidelines. This issue has not been decided in Minnesota.
- The governing statute enforcing the I‐864, 8 U.S.C. §1183a(1)(C) provides that, “the sponsor agrees to submit to the jurisdiction of any [f]ederal or [s]tate court for purposes of actions brought under [8 U.S.C. §1183a](b)(2).”
- The I‐864 contractual obligation can be enforced by the sponsored alien. 8 U.S.C. §1183a(1)(B). An action to enforce an affidavit of support can be brought against the sponsor in any appropriate court by a sponsored alien with respect to financial support. 8 U.S.C. §1183(e).
- Because the majority of the proceeding will involve state divorce law, state court is the most appropriate venue. Federal Courts have discretion to remand “all matters in which State law predominates.” 28 § U.S.C. 1441(c).
Step 3: Arguing to enforce the I‐864 as a contract.
- Argue offer, acceptance and consideration using case law from other jurisdictions, and the language contained in the form I‐864 and its instructions. The language in the form and instruction contain the terms of the contract, spelling out issues like “consideration” and how long the obligations continue.
- Federal courts that have addressed the issue have consistently found that form I‐864 is a legally binding and enforceable contract between a sponsored immigrant and the sponsor executing the form; state courts that have addressed the issue have also held that I‐864 is a binding contract. (See www.fordwlaw.com/practice‐areas/family‐law/ for an example motion with citations). Again, at the time of writing this there is no binding authority in Minnesota on the issue, and even outside of Minnesota there are Courts that have held the I‐864 is not a binding contract that a sponsored immigrant can enforce.