In an important ruling for one of our I-864 enforcement clients, a Court ruled today…
Today, I wanted to talk about something that comes up pretty often in my consultations: what should you do if your Affidavit of Support sponsor/defendant doesn’t have any money? Should you still start a lawsuit against them to try and recover financial support?
Affidavit of Support lawsuits are fundamentally about one thing, recovering money from the sponsor. These lawsuits are not about getting even; they’re not about child custody; they’re not about getting back at your husband/wife about things that happened in a relationship. The only thing that a federal judge can give you the plaintiff in an I-864 lawsuit is money.
So why would you go into the lawsuit if you are under the impression, that the defendant doesn’t have any money? Here are five reasons why you might want to consider.
1. You don’t know the defendant’s financial situation until after a lawsuit is started.
Number one, you don’t really know, going into a lawsuit, what a defendant’s financial situation is. Most Affidavit of Support lawsuits are one spouse suing a current or former spouse. Folks often think that they have a good understanding of the opposing party’s financial situation. I will tell you that there are often surprises there.
You can’t really assume that you have a clear understanding of all the defendant’s savings and investments until you get into litigation and are involved in the formal discovery process. Discovery refers to the formal exchange of information. Through the discovery process, one of the things we will always do is get a clear understanding of what financial liquidity the defendant has. There are often surprises.
2. You may have a co-sponsor (joint sponsor) or I-864A household member.
In Affidavit of Support lawsuits, you may have a co-sponsor that you don’t know about. A co-sponsor, also called a joint sponsor, is somebody else who would have signed an additional Affidavit of Support in addition to your main sponsor. An I-864A “household member” is similar – a second person who would have been part of your sponsor’s household and would share legal responsibility to you.
You may think that only your spouse or fiancé(e) signed a binding Affidavit of Support for you. But it happens more often than you might think that after we begin working with a new client, and after we file a Freedom of Information Act request, we discover that the petitioner got a friend or a family member to sign an additional affidavit of support. The primary reason somebody would do that is if they are low-income. Until you do your due diligence and request the immigration file from USCIS, you don’t know for sure whether or not there was a joint sponsor.
3. Defendants get a loan to pay a judgment or settlement.
Even in a situation where a defendant doesn’t have savings and there’s no joint sponsor, in a surprising number of my cases, the defendant will find a way to get a loan or get money borrowed from friends or family members. We have had cases that go well into the litigation process with the defendant saying all along, “I don’t have any resources.” Then, as the case progresses, suddenly a loan comes through from a family member and the case gets resolved overnight. This happened more than a couple of times last year in 2022.
Until you get into the process of litigation and put real pressure on the defendant, you don’t know what resources that defendant may have available to them to get the liquidity needed to pay a judgment or settlement agreement.
4. Statute of limitation (time limit for bringing a legal claim).
This is an area that is very unsettled from a legal perspective. Legal claims in the United States are generally – although not always – subject to something called a statute of limitations.
What this means is that if I break a contract, and you want to sue me over the contract, you normally have only a set amount of time to file that lawsuit. Affidavit of Support claims are tricky because the statute that created the Form I-864 does not define a time limit for when you have to bring the claim. There is a strong reason to argue that there is no statute of limitations, and there just is no deadline for bringing a claim under the affidavit of support.
But to play it safe, I always encourage people to act as if the statute of limitations applicable to written contract disputes applies in these cases. That’s typically between three and six years. Conservatively, just in case a judge were later to determine that a three-year limitation or a six-year limitation applies to your claim, the safe thing to do is file and litigate that claim. This is true even if you think the defendant might effectively be judgment-proof at the time, which means just doesn’t have any resources.
Note also that Affidavit of Support judgments have been determined to be bankruptcy-proof. This means that even if you get a judgment and the defendant later files for bankruptcy protection, courts have determined that the type of debt that you have in that situation as the sponsored immigrant is something called a domestic support obligation. For that reason, under the bankruptcy code, it is exempt from discharge. Even if the sponsor goes through the bankruptcy process, your I-864 claim is supposed to survive, and you can continue to collect it.
5. Proceeding with the lawsuit is financially low-risk.
The final reason to consider proceeding against a defendant who doesn’t seem to have any money is why not? My law firm represents clients without charging upfront legal fees. We get paid only if we recover financial support for our clients. That means these cases are very low risk, financially speaking, for our clients.
Now, there is work involved. You are going to have to put in some time with your lawyer to advance your claim. But you aren’t out of pocket for your legal fees. You aren’t paying money into this process of securing a judgment or settlement against the defendant so it’s low risk from that perspective.
If you have questions about the Affidavit of Support, feel free to drop them in the comments. If you would like a confidential case assessment about your potential claim under the affidavit of support, we work with clients all across the United States and do Zoom consults every day.