Family Law, Matters: Immigration, Maintenance, and Form I-864 / by Rex B. Wingerter

This article appeared in the December 2015 edition of the Prince George’s County Bar Association News Journal.

Family law practitioners representing non-U.S. citizen clients in domestic relations matters will probably never face an immigration based ineffective assistance of counsel complaint, as will their criminal defense colleagues who fail to properly advise their clients of the immigration consequences of a guilty plea. See Padilla v. Kentucky, 559 U.S. 356 (2010). But family practitioners are not immune from such concerns. Immigration consequences do flow from divorce and its associated claims, particularly when it comes to financial support issues. This is true where one party of the dispute received legal permanent residency (“LPR” or the “green card”) based on their marriage.

The immigration process is straight forward: the petitioner, usually a U.S. citizen but also may be and LPR, submits a visa application to the U.S. Citizenship and Immigration Services (USCIS) to sponsor his or her non-citizen spouse, known as immigrant beneficiary. Upon approval of the visa, the beneficiary is granted LPR status. The practice is widely recognized, often cynically imbued with suspected fraud, as illustrated by the 1990 romance movie “Green Card” starring Gérard Depardieu and Andie MacDowell. Donald Trump, the current GOP presidential contender, sponsored two of his foreign born ex-wives, making him what some would derogatorily label an “anchor husband.”

The sheer number of family petitions explains why it’s more likely than not that a practitioner will confront an immigration related issue: nearly 11 million individuals were granted LPS status by the USCIS from 2004 through 2013. Sixty-four percent of those 11 million individuals were the result of family based petitions and more than half of those family base petitions were by U.S. citizens’ sponsoring a spouse or a spouse and his/her minor children for their LPR status. About two percent of all LPRs reside in Maryland; so each year, as many as 12,000 Marylanders receive their LPR status based on family petitions.^[1]The data is from the 2013 Yearbook of Immigration Statistics, published by the U.S. Department of Homeland Security. See, http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf It’s likely that many of these recipients may someday seek a divorce.

Family law is implicated because under federal law, each petitioner must complete an Affidavit of Support – known as Form I-864 – and submit it along with the visa petition. The  I-864 is a binding contract where the petitioner/sponsor is lawfully  obligated  to provide the immigrant spouse financial support necessary to maintain the immigrant’s annual income at a minimum of 125 percent of the Federal Poverty Guidlines. 8 U.S.C. §1183a(a).

The 2015 guidelines set the 125 percent minimum for one individual at $14,712. Where the petitioner also sponsored his or her spouse’s minor children, the minimum amount increases. The guidelines for a family of two is $19,912; for three, $25,112; for four; $30,312 per year. The purpose of the I-864 is to insure that the immigrant(s) does not become a public charge.

The contract takes effect upon the grant of LPR status to immigrant spouse. The I-864 gives clear notice that “By signing this form, you, the sponsor, agree to support the intending immigrant and any spouse and/or children immigrating with him or her.” It also makes clear that “divorce does not terminate your obligations under this Form I-864.” Arguments that the I-864 is invalid as unconscionable or a contract of adhesion have been rejected on the ground that the sponsor received a substantial benefit, the admission into the U.S. of his or her spouse. Al-Mansour v. Shraim, 2011 U.S. Dis. LEXIS 9864(D. Md., April 14, 2011). The obligation continues until the death of the sponsor, or the sponsored immigrant(s): become U.S. citizens, can be credited with 40 quarters of work, depart the United States permanently, or dies.

The I-864 is a legally enforceable contract between the sponsor and the sponsored immigrant, the federal or state government, or by any other entity providing any means-tested public benefit. 8 U.S.C. §1183a(a)(1)(B)-(C); Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D. Cal, 2008). The sponsor submits himself  to the personal jurisdiction of either the state or federal court having subject matter jurisdiction. 8 U.S.C. §1183a(a)(1)(c), (e). The statute  allows for plaintiffs to seek attorneys’ fees and collection costs. 8 U.S.C. §1183a(a)(1)(c).

Courts have found the I-864 enforceable and have ordered support payments to a former spouse. As such, the I-864 is akin to de facto maintenance to the non-citizen ex-spouse, regardless of factors set forth in Md. Family Law § 11-106. Practitioners would be amiss not to apprise their clients who sponsored an immigrant spouse of the I-864 consequences and consider it when fashioning a settlement agreement. Ignorance of the I-864 can be very expensive. A sponsor who divorced four months after marrying his “mail order” Russian bride, whose 10 year old daughter accompanied her, was ordered to pay his ex-spouse $103,197 for eight years of past accumulated I-864 deficit support. Hrachova v. Cook, 2009 U.S. Dist. LEXIS 102067 (D.C. Fla. November 3, 2009).

The Hracova case illustrates a sponsor’s potential liability when the immigrant spouse comes to the U.S. with inadequate English language proficiency and limited educational and occupational skills and left financially to flounder following a divorce. But an I-864 award can be offset and mitigated, as the first federal case to decide an I-864 claim instructed. In Stump v. Stump, 2005 U.S. Dist. LEXIS 26022 (D.C. Ind. October 25, 2005), the court ruled that any income the plaintiff received after the parties separation should be subtracted from the amount the defendant must provide to maintain the plaintiff at 125% of the poverty level. Another court found that an earned income credit from the federal government was income but ruled plaintiff’s subsidized housing benefit, her tax refund, and property received in a divorce proceeding was not income. Skorychenko v. Tompkins, 2009 U.S. Dist. LEXIS 106586 (D.C. Wis. November 16, 2009). Similarly, a monetary divorce settlement award and student loans were not judged income for offsetting I-864 obligations, but student grants and affordable housing subsidies were deemed to be offsetting income. Shumye. A Maryland court ruled that neither alimony nor child support are income offsets. Younis v. Farooqi, 597 F.Supp. 2d 552 (D.C. Md. 2009).

Stump further instructed that the immigrant spouse had a duty to mitigate by seeking employment and becoming self-sufficient at least to an income that meets 125% of the poverty guideline. The immigrant plaintiff is Stump provided sufficient evidence that her efforts to seek employment were reasonable but understandably unsuccessful given her English language difficulties, limited job skills, and limited income. She was awarded $18,000. The Hracova court accepted plaintiff’s testimony about the numerous obstacles she faced in obtaining and keeping a job and ruled that defendant/sponsor failed to show that plaintiff had not made reasonable efforts to find a job.

The only avenue that may shield a sponsor from the I-864 based suit by the immigrant ex-spouse is a valid prenuptial. The only case to recognize such a defense was an unpublished case in Hawaii where the court ruled plaintiff had waived her right to enforce the I-864 by agreeing to a prenuptial where the parties mutually agreed to foreclose their rights to seek support in any form from one another in the event of a separation or divorce. Blain v. Herrell, 2010 U.S. Dist. LEXIS 76257 (D. Haw. July 21, 2010).

Blain had been rejected in courts in New Jersey and California. See, Shah v. Shah, 2014 U.S. Dist. LEXIS 4596 (D.C. N.J. Jan. 14, 2014); Erier v. Erier, 2013 U.S. Dist. LEXIS 165814 (N.D. Cal. Nov. 21, 2013). A Maryland court stoutly rejected Blain, but in dicta, offered the possibility that a sponsored immigrant could waive his or her right to sue the sponsor to enforce to I-864 if it could be established that the immigrant ex-spouse waived her right to sue under the I-864 after the sponsor had signed the I-864, Toure-Davis v. Davis, 2014 U.S. Dist. LEXIS 42522 (D.C. Md., March 28, 2014).