What is the anticipated result when an order of the court or a judgment of divorce conflicts or contradicts the requirements of an affidavit of support, executed for immigration purposes?

The answer may well result in a trap or a malpractice claim against the unwary.

Immigration attorneys are well aware of the obligations and consequences of the execution of an affidavit of support. This affidavit commits the signer to provide a certain compulsory level of support to an individual seeking citizenship. The level of support is based upon a formula that requires payment of not less than 125% of the federal poverty line, during the period in which the affidavit is enforceable.

The affidavit is known as an "I-864". The contents of the affidavit are a basis for an action to enforce its terms in any state or federal court, having jurisdiction over the parties.

The I-864 authorizes both a private cause of action by an individual, and a claim by the federal government.

The support obligation remains in effect until the first of the following:

(1) The immigrant dies.

(2) The sponsor dies.

(3) The immigrant becomes a citizen of the United States.

(4) The sponsored immigrant has obtained forty (40) quarters of Coverage under Title 11 of the Social Security Act.

(5) The sponsored immigrant ceases to hold Legal Permanent Residence ("LPR") status, and permanently departs the United States.

(6) The sponsored immigrant becomes subject to removal, but applies for, and obtains, a new grant of adjustment of status.

It is not uncommon for matrimonial lawyers to be unaware of the I-864 requirements, or its impact upon "agreed upon maintenance", or a court order/judgment, as to support. It is also not rare for a matrimonial client to "forget" to mention the existence of the affidavit, or to be unmindful of its requirements.

In most instances, the issue arises when an individual is requesting a prenuptial agreement or a spouse is seeking a divorce. It does not matter from an enforcement perspective whether the I-864 is executed before or after a prenuptial agreement.

The affidavit's ramifications are further complicated by recent efforts by the Trump Administration, to redefine and tighten the definition of a "public charge", or the threat of becoming a public charge, in conjunction with one's immigration status.

There are few, if any, cases in New York addressing the inherent conflict between the I-864, a prenuptial agreement, postnuptial agreements, or court order/judgment.

Generally speaking, the requirements of the affidavit of support have prevailed over the matrimonial court's failure or refusal to award maintenance or the termination of the maintenance term. The reported cases involve a pre- and postnuptial agreements, where maintenance was waived, as well as customary actions for divorce, post-divorce, and support.

'Moody'

In Moody v. Sorokina, 40 A.D.3d 14 (4th Dept. 2007), plaintiff husband executed the I-864 for defendant wife, a Ukrainian national. Husband commenced a divorce action and the court held that wife was not entitled to seek enforcement of the I-864 because the statue was for public benefit only and did not afford defendant wife a private cause of action.

Pursuant to 8 U.S.C. §1183a(a)(1), no affidavit of support may be accepted by the attorney general unless it is executed by a sponsor of the alien as a contract. 8 U.S.C §1183a(e)(1) expressly permits the sponsored immigrant to bring an action for enforcement of the Form I-864 against the sponsor in any federal or state court.

The court found that the sponsored immigrant's right to support under the I-864 is unaffected by a judgment of divorce. See Chesire v. Chesire, 2006 U.S. Dist. LEXIS 26602, 2006 WL 1208010. Therefore, the court held that the wife was entitled to seek enforcement of the Form I-864.

'Cheshire'

In Cheshire v. Cheshire, 2006 U.S. Dist. LEXIS 26602 (D. Fla. 2006), defendant husband executed the I-864 after marrying plaintiff wife. The parties subsequently entered a judgment of dissolution of marriage that did not award any alimony or support to either party. Thereafter, the court noted that the instructions accompanying Form I-864 provide "divorce does not terminate the obligation" to support the sponsored immigrant. (Form I-864, p. 7, http://www.uscis.gov/files/form/I-864.pdf). The court found that defendant supported plaintiff through their divorce, and was only liable for support after the date of the parties' final divorce resolution. Defendant was obligated to provide plaintiff with support equal to 125% of the federal poverty line guidelines for a household size of one person.

The express terms of Form I-864 also provide that "sponsored immigrant assets may be used in support of [a sponsor's] ability to maintain income at or above 125% of the poverty line if the assets are or will be available to the United States for the support of the sponsored immigrant." (Id., p. 5). As such, the court reduced the total amount of support husband owed wife by the total amount of wife's income and benefits earned since the date of the parties' divorce in 2001.

The court determined that husband's inability to pay under the judgment is irrelevant to the issue of his liability.

'Shuyme'

In Shuyme v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008), defendant signed an I-864 for plaintiff, a citizen of Ethiopia. The parties filed for divorce and plaintiff sought to enforce the I-864. The court found that for plaintiff to maintain an annual income of 125% of the poverty threshold, the court must compare plaintiff's income against the 125% of the poverty threshold for each individual year in question.

In determining how to offset defendant's financial obligation, the parties agreed that money earned through employment and alimony payments made by defendant to plaintiff constitute income, and the court held (1) a monetary divorce settlement award was not income, (2) student loans are debts and not income, (3) student grants are income, (4) affordable housing subsidies are income, and (4) bank statements without evidence of specific sources are not income.

The court granted partial summary judgment to defendant for the years plaintiff's income was determined to exceed the 125% federal poverty threshold and denied summary judgment for the years plaintiff's income did not exceed 125% of the poverty threshold. The court denied plaintiff's motion for summary judgment as she did not show that her IRS documents listed every resource that could qualify as income for purposes of the I-864.

'Liu'

In Liu v. Mund, 686 F.3d 418 (7th Cir. 2012), defendant married plaintiff, a Chinese citizen, and signed a Form I-864. The parties divorced and the divorce court ordered defendant to support plaintiff provided she was actively seeking work. Defendant refused to provide the support specified the in the affidavit based on plaintiff's refusal to look for work.

Plaintiff filed an action in federal district court seeking support pursuant to the I-864, contending that the failure to mitigate damages is not a defense to the support obligation created by the affidavit. The court noted that the list of terminating conditions for the I-864 does not mention a sponsored immigrant's duty to mitigate damages.

The court found that the sponsor would be the only beneficiary of imposing a duty to mitigate and the duty of support is not for the benefit of the sponsor. The court noted that the absence of a duty to mitigate tends to make sponsors more cautious about sponsoring immigrants, and that the poverty line is meager even when enhanced by 25%, imposing an incentive for the immigrant to seek employment. As there is no federal common law duty of mandatory job search, the court would not create one for I-864 cases.

'Toure-Davis'

In Toure-Davis v. Davis, 2014 U.S. Dist. Lexis 42522, (D. Md. 2014), defendant signed the I-864 for plaintiff following their marriage. On the same day plaintiff was granted legal permanent resident status, the parties entered in to a separation agreement. Per agreement by the parties, defendant was to provide plaintiff with child support and alimony.

Thereafter, plaintiff sought to enforce the I-864. Defendant argued that plaintiff waived her right to enforce Form I-864 when she signed their ante-nuptial agreement with its clause that each party forgoes any claim of alimony. The court found that when defendant agreed to pay alimony and support to plaintiff pursuant to their separation agreement, he waived the ante-nuptial's prohibition of either side demanding support or alimony.

The court also held that defendant's obligation of support, imposed by federal law, is separate and apart from any obligation of support imposed under Maryland law and the right of support waived by the parties via an ante-nuptial agreement.

Subsequent history with respect to household size, income, expenses, alimony, and financial support found in: Toure-Davis v. Davis, 2015 U.S. Dist. LEXIS 26224 (D. Md., March 4, 2015); Toure-Davis v. Davis, 2015 U.S. Dist. LEXIS 81120 (D. Md., June 23, 2015)

'In re Marriage of Khan'

In In re Marriage of Khan, 182 Wn. App. 795; 332 P.3d 1016 (2014), husband signed the I-864 for wife, a citizen of India. During the parties' divorce, husband was ordered to pay temporary maintenance. At trial, wife argued that husband's I-864 obligation was a basis for a continued maintenance award. The trial court concluded that under state law, maintenance was not appropriate. Still, the trial court awarded maintenance based on the perceived conflict between husband's I-864 obligation under federal law and Washington's dissolution law.

On appeal, the court concluded that a maintenance order need not include enforcement of the I-864 obligation because (1) federal law regarding I-864 obligations and Washington dissolution law are independent of each other, (2) the state statute governed the award of maintenance, and (3) the beneficiary of an I-864 obligation can assert rights pursuant to the contract in a separate action.

'Shah'

In Shah v. Shah, 2014 U.S. Dist. LEXIS 4596 (D. N.J. 2014), the parties executed a prenuptial agreement preventing plaintiff from seeking alimony or maintenance. After the marriage, defendant signed an I-864 for plaintiff, a native of Russia. Divorce proceedings were initiated and plaintiff filed to enforce the I-864. Defendant argued that plaintiff waived her right enforce the I-864 in their prenuptial agreement.

The court found that as the prenuptial agreement was executed prior to the I-864, the defendant was asking the court to find the I-864 void from the moment it was signed with respect to plaintiff's right to enforce it. 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. See 8 U.S.C. §1183a(a)(1). The court rejected the suggestion that plaintiff never had the right to enforce the I-864 on the basis of a prior prenuptial agreement.

Thereafter, the court found that defendant's obligation to support plaintiff terminated on the date USCIS granted plaintiff an adjustment of status to a lawful permanent resident. Shah v. Shah, 2015 U.S. Dist. LEXIS 147164 (D. N.J. 2014).

'Erler'

In Erler v. Erler, 824 F.3d 1173 (9th Cir. Cal. 2016), the parties entered into a premarital agreement stating that neither party would be entitled to alimony or support from the other. After the marriage, defendant signed the I-864 for plaintiff, a Turkish Citizen. The parties divorced and plaintiff moved into an apartment with her adult son. She was unable to find employment and earned no income. Her son's income exceeded 125% of the federal poverty guidelines for a household of two and he used his income to pay rent and other living expenses for himself and plaintiff. Plaintiff commenced an action in the district court against defendant to enforce her obligations under the I-864 when defendant refused to support her after she moved out.

While district court found that defendant had a continuing obligation to plaintiff, the court granted summary judgment to defendant concluding that (1) plaintiff and her son constituted a two-person household for purposes of the I-864, (2) that plaintiff was not going to become a public charge, and (3) she did not require additional benefits from defendant.

On appeal, the court determined that a sponsor would reasonably expect that if the immigrant separates from the sponsor's household, the obligation of support would be based on a household size of one. Thus, in the event of separation, the sponsor's duty of support must be based on a household size equivalent to the number of sponsored immigrants living in the household, not the total number of people living in the household.

The court found that that relieving the sponsor of the duty of support would be a windfall to the sponsor, who is not an intended beneficiary of the I-864. The court held that when measuring the immigrant's income, a court must disregard the income of anyone in the household who is not a sponsored immigrant; concluding that defendant had a continuing obligation to provide plaintiff with whatever support necessary to maintain her at an income at least 125% of the poverty guidelines for a one-person household.

Subsequent history with respect to qualifying income, divorce settlement, rent, food stamps and pension found in: Erler v. Erler, 2017 U.S. Dist. LEXIS 189203 (N.D. Cal., Nov. 15, 2017).

While no sure proof approach has been ratified by the courts, or recognized as acceptable, there are certain minimum "reasonable care" approaches that should be taken by counsel when representing either the immigrant or sponsor:

(1) At the initial interview, always ask if the parties are citizens or their immigration status in the United States.

(2) Ask if there is a Prenuptial Agreement or "marriage contract" between the parties.

(3) Are the parties married or about to be married? Is the anticipated spouse or the current spouse a Sponsor who has signed an affidavit of support for the other?

(4) Determine what is the minimum level of support under the federal guidelines dealing with support of any immigrant or immigrant family would be.

(5) Provide in any Prenuptial or Postnuptial Agreement (in which the parties agree that maintenance is waived), that should a court determine that such a provision, under the circumstances of that case be unenforceable, that maintenance be limited to the level of the formula for the immigrant or the family. Also provide that support be for a specific term/period, during which immigrant in good faith seeking to obtain permanent residence or citizenship.

(6) Provide that the affidavit of support terminates upon the immigrant leaving the United States for a particular period of time, as a presumptive evidence of abandoning obtaining citizenship.

(7) If payment is required under the affidavit of support, that sum reduces any Equitable Distribution.

Conclusion

It is best practice to inquire at the initial intake conference as to whether there is an affidavit of support or a prenuptial agreement. It is of no benefit to the client if a waiver of maintenance is agreed upon or prepared if, in fact, an affidavit of support exists and the parties intend to remain in the United States for the foreseeable future.

Stuart F. Gartner is a partner at Gartner + Bloom, P.C. Kaela A. Mahon, an associate at the firm, assisted in the preparation of this article.