Can you enforce the Form I-864 Affidavit of Support with a preliminary injunction?

Non-citizens needing to enforce the USCIS Form I-864, Affidavit of Support are usually in serious need of help. To have a claim under the Affidavit, their income needs to be below 125 percent of the poverty line. That’s about $1,400 per month for a household of one. But a lawsuit can take months or even years to resolve. So what does the person do for support while the lawsuit is working its way through the system?

What is a preliminary injunction?

Normally, a plaintiff recovers no money in a lawsuit until the complete process is over. Even if the plaintiff has the strongest possible case, nothing is recovered until the case is over and a judgment is entered. A “preliminary injunction” is an exception to this general rule, that allows a judge to order payment to a plaintiff while the lawsuit is still underway.

To win a preliminary injunction, a plaintiff has to prove four things:

1. Likely success on the merits, meaning that the plaintiff is likely to ultimately win the lawsuit;
2. Irreperable harm, meaning that the plaintiff is suffering as a result of the Affidavit being violated;
3. That the “balance of harms” weighs in favor of granting the injunction; and
4. That it would be in the public interest to grant the injunction.

To date three federal courts have granted preliminary injunctions to Affidavit of Support plaintiffs. Sultana v. Hossain, No. 3:21-cv-1219, Dkt. 41 (N.D. Tex. Dec. 15, 2021) (Memo. Op. granting preliminary injunction); Jubber v. Jubber, 1:19-cv-00717, Dkt. 38 (May 30, 2019) (order granting motion for preliminary injunction, courtesy copy attached hereto) (emphasis added); Wood-Shultz v. Shultz, 11:cv-975 (E.D. Wisc. Dec. 30, 2011) (order granting temporary restraining order). Two of those cases were clients of our law firm. No published decision in the United States has denied a preliminary injunction to a Form I-864 plaintiff.

1. Likely success on the merits.

The first thing that an I-864 plaintiff must show for a preliminary injunction is that she is likely to win on her overall case. That is usually a showing that such a plaintiff is well-situated to show. Often, the only factual dispute in I-864 cases is how much in damages the plaintiff can recover. That is, the question is not whether the plaintiff will win than how much they will recover.

Basically, the plaintiff’s overall case requires her to show three things.

• First, that the defendant signed the Affidavit of Support. Generally, prior to filing a lawsuit, we will have obtained the signed Affidavit via a Freedom of Information Act (FOIA) request from USCIS. We typically include the Affidavit of Support as the first exhibit to the lawsuit, and there is no question that the defendant executed that contract.
• Second, the plaintiff has to show that she gained residency based on an application that included the Affidavit of Support. Again, there is usually no dispute about this. The FOIA results will show that our client obtained status such as IR-1 or CR-1 from a visa or adjustment of status application that included the Form I-864.
• Lastly, the plaintiff has to show that her income has been below 125 percent of the poverty line. Very often our client is unemployed, and so there is no question that her income is under $1,400.

Having proved these three elements, the plaintiff has shown that she is likely to win her overall lawsuit.

2. Irreperable harm.

Next, a preliminary injunction requires the Form I-864 plaintiff to show that she would be “irreparably harmed” if the injunction is not granted. But consider the nature of the financial obligation behind the Form I-864: to raise the sponsored immigrant just barely above the poverty line. The Federal Poverty guidelines literally define what it means to be impoverished in the United States.

As the Sultana Court determined in granting injunctive relief to an Affidavit beneficiary, “living under 125% of the poverty line constitutes irreparable harm per se for purpose of this motion.” No. 3:21-cv-1219, Dkt. 41, at *3. That is, living under 125 prevent of the poverty line automatically constitutes irreparable harm.

3. Balance of hardships.

Third, the Form I-864 plaintiff needs to show that the balance of hardships to her, versus to the Form I-864 sponsor, tips in favor of granting injunctive relief. Again, consider the nature of the obligation at issue. When the sponsor signed the Affidavit of Support, he had to prove to USCIS that he had the financial obligation to serve as a sponsor. If he failed to do that, the Affidavit of Support would have been rejected and he would have needed to correct his filing or get a joint sponsor. So when the plaintiff is asking the Court for an injunction, literally the only thing she is requesting is that the sponsor fulfill the very same financial support duty that he proved to the U.S. government that he was able to provide. It can hardly be called a hardship to order someone to do the very same thing that he showed he was able to do.

4. Public policy.

Finally, a Court must consider the public policy interests served – or disserved – by granting an injunction. The clearest way to think about this element is to understand the reason that Congress created the Form I-864 in the first place. That purpose was to require Affidavit signers to be financially responsible for those they sponsor.

In short, foreign nationals seeking U.S. residency are deemed inadmissible if determined “likely to become a public charge.” 8 U.S.C. § 1182(a)(4). While not defined by the INA, becoming a “public charge” has consistently been interpreted to mean dependence on public assistance. See, e.g., Villars v. Villars, 336 P.3d 701, 712 (Alaska 2014). Courts uniformly recognize that Congress intended the Affidavit of Support as a safeguard to prevent immigrants from becoming public charges. Liu v. Mund, 686 F.3d 418, 422 (7th Cir. 2012) (internal citations omitted) (“…the stated statutory goal [in requiring a Form I-864 ]… is to prevent the admission to the United States of any [immigrant] who is likely at any time to become a public charge”).

As the Northern District of Texas observed in granting injunctive relief against an Affidavit sponsor, “[t]he Form I-864 is a risk allocation mechanism. Congress elected to take the onus of supporting recent immigrants away from the American taxpayer and place it on the shoulders of visa sponsors.” Sultana v. Hossain, No. 3:21-cv-1219, Dkt. 41, at *4 (N.D. Tex. Dec. 15, 2021) (Memo. Op. granting preliminary injunction). For that reason, “public policy concerns tip strongly in favor” of granting injunctive relief to a Form I-864 plaintiff. Congress made a clear public policy decisions that Affiadvit signers should be financially responsible for those they sponsor, and so it makes sense for Courts to hold sponsors to account for this obligation.

Conclusion.

Preliminary injunctions provide a helpful tool to Affidavit of Support plaintiffs who are in desperate need of financial assistance. They can help a plaintiff recover some immediate financial support while the broader lawsuit works its way – sometimes slowly – through the federal system.