A version of this article first appeared in the Side Bar journal for the Litigation…
No, federal courts have squarely held that a pre- or post-nuptial agreement cannot waive rights under the Form I-864. Even if a sponsored immigrant has signed a document saying that she forfeits all rights under the I-864, that agreement is meaningless in federal court.
Nuptial agreements and the Form I-864.
It is very common for sponsored immigrants to sign a nuptial agreement. Often this happens before the person completes the immigration process. For example, someone might come to the U.S. on a K-1 visa, then be forced to sign a prenuptial agreement before getting married.
Usually these nuptial agreements will contain broad language that the immigrant waives all right to “alimony” or spousal maintenance. But sometimes the agreements will also specifically cross-reference the Form I-864.
How do federal courts view nuptial agreements that purport to waive rights under the Form i-864?
Federal courts see two main problems with nuptial waivers.
First, these agreements undermine the purpose of the I-864. Or at least they try to. Congress created the Form I-864 so that immigrants would be guaranteed basic financial support of they need it. More specifically, the I-864 ensures that a sponsor rather than American taxpayers provides the immigrant with support. If nuptial agreements could waive support, it basically leads to the following situation: the sponsor promises the U.S. government that it will provide support, then turns around and creates a document with the immigrant that says, “but I’m not actually going to provide the support.” It would be a bit crazy if a federal statute could be undermined in that way.
Here is how one court in the District of Utah put it:
To permit a sponsor to unilaterally terminate the Form I-864’s financial support obligation through a separate agreement with the immigrant would ignore the interests of the U.S. Government and the benefits of taxpayers and charitable donors. It would also defeat the Form I-864’s purpose of preventing admission of an immigrant that is likely to become a public charge at any time. Therefore, nuptial agreements will not terminate a Form I-864’s financial support obligation.
The second reason that courts disregard nuptial agreements is the text of the I-864 itself. The I-864 contract lists five “terminating events” that ends a sponsor’s support obligation. These include the immigrant becoming a citizen or being credited 40 quarters of work. (You could count the sponsor’s death as a sixth terminating event). But those terminating events are the only thing that ends a sponsor’s obligation. Signing a private nuptial agreement isn’t on the list of terminating events, so that simply isn’t a thing that can end a sponsor’s obligation.
Do any federal courts uphold nuptial waivers of I-864 obligations?
Yes, sort of, maybe. The only known federal case to say that nuptial agreements can waive I-864 rights is Blain v. Herrell from the District of Hawaii. No. 10-00073 ACK-KSC, 2010 WL 2900432, *7-8 (D. Haw. July 21, 2010). In that case the Court did say that nuptial agreements could waive I-864 support because those are private rights owned by the beneficiary. But first of all, the statement in Blain was dicta. That’s lawyer-talk for a statement that touches on an issue that isn’t really before the court. Dicta doesn’t count as legally-binding precedent (aside from the fact that courts aren’t required to follow district-level decisions at all). Moreover, the Blain decision doesn’t really chew over the issue in any detail. So in other words, Blain isn’t very strong armor for a sponsor to rely upon.
What decisions have rejected nuptial waivers of I-864 rights?
By our count, the following are all the federal decisions to have held that I-864 rights cannot be waived in a nuptial agreement. (If you know of more, drop us a line).
- Erler v. Erler 824 F.3d 1173 (9th Cir. 2016).
- Golipour v. Moghaddam No. 4:19-cv-00035-DN-PK (D. Utah Feb. 7, 2020) (granting and denying in part cross-motions for summary judgment).
- Anderson v. United States, No. C17-0891RSL (W.D. Wash. Apr. 17, 2019) (dicta).
- Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.).
- Shah v. Shah, 4:12-cv-4648, (RBK/KMW), 2014 U.S. Dist. LEXIS 4596 (D.N.J. Jan. 14, 2014) (memo. op.)
- See also Cyrousi v. Kashyap, 386 F. Supp. 3d 1278 (C.D. Cal. 2019) (holding that waiver is not an affirmative defense available to sponsors); Liu v. Kell, 299 F. Supp. 3d 1128 (W.D. Wash. 2017) (same).
What about state family law courts?
So, these is where things get a bit more complicated. State family law courts have shown themselves to be more willing to uphold nuptial agreements that waive I-864 support. Most of those decisions are not available online, but we’ve learned of them from doing lots of new client screenings. Normally, this will come up in the context of the immigrant asking for temporary spousal maintenance. The sponsor will show the court a nuptial agreement, and the immigrant will try to argue that the I-864 defeats the nuptial agreement. State courts often come down on the side of the sponsor. Does this mean that this immigrant can never enforce the I-864? Not necessarily. Because the holding from the family law court is that the immigrant can’t get alimony in light of the nuptial agreement. But if the immigrant goes to federal court, she is not there to ask for alimony. She is there to enforce her rights under the federal sponsorship contract and associated provisions of family law. The fact that a state court made a decision about alimony doesn’t really have any bearing on the federal law issue. So in other words, an immigrant should not be scared away from pursuing a federal case merely because of losing a request for alimony.