A version of this article first appeared in the Side Bar journal for the Litigation…
The Form I-864, Affidavit of Support is signed in virtually all family-based immigration cases. If you became a lawful permanent resident (LPR) through a spouse, parent or child, chances are the Form I-864 was signed.
By signing the Form I-864, the sponsor promises to ensure you have income at or about 125% of the Federal Poverty Guidelines – roughly $1,226 for a household of one. If your monthly income is below that amount, the sponsor is required to make up the difference. So – for example – if you earned $1,000 for a given, month, the sponsor would owe you $226.
So how do actually get financial compensation from the sponsor? Most basically, these cases proceed in four steps.
1. Case assessment.
We begin by assessing how much support is owed to our clients. First, we meet with our clients to make a careful assessment of the overdue support that is owed to our clients – referred to as arrears. For example, let’s say that our client has been separated from her sponsor for six months and has been unemployed. In that case her arrears would be $7356 (12 x $1,226).
Next, we assess how much future support the client is likely to need. Under the I-865, the client is entitled to support until she has 40 quarters of work. (Other events also end the obligation, but work is the most common). Similarly, the support obligation will end – at least temporarily – once the person becomes gainfully employed. Since the sponsor is required to make up the income shortfall based on 125% of the poverty guidelines, once the beneficiary has returned to work the sponsor will not have to make support payments while the beneficiary is employed.
That second step of the assessment is challenging. In some situations it is relatively clear how long it will take a client to become employed. For example, if the client is in an advance degree program we would expect her to become employed shortly after graduation. In other situations, however, it is far less clear. For a client who has limited English and no work history, the road to employment could be a very lengthy one.
Our firm charges no fee to clients for case assessment. You can contact us here to request our assessment of your case. We consult with individuals throughout the United States.
2. Settlement negotiations.
Once we have been retained by a client our first step is trying to reach a negotiated settlement with the opposing party. The vast majority of our defendants agree to settle claims before litigation is filed. That is strongly in the defendant’s interest, since they may have to pay both sides attorney fees if the case goes to court.
How long do settlement negotiations take? That varies quite a bit from case to case. Sometimes an agreement can be reached in as little as a couple of weeks. But in other cases negotiations can drag on for two months or more. If we believe that the other side is not serious about negotiation, we always have the option of simply moving forward with our lawsuit.
Settlements are typically structured one of two ways. In the first option, settlement is made for a single lump payment. For example, our client might agree to accept a one-time payment of $50,000 in exchange for waiving any future claims for support. Lump sum settlements are relatively common. They are attractive to defendants because they an make one payment, then no longer have to worry about the matter in the future.
The second option is to have a structured settlement. On this option, the defendant typically makes an initial lump payment, then agrees to make monthly payments for an agreed period of time. For example, the defendant might agree to make a $10,000 payment, then $1,200 per month for 30 months. This second option is often used where the defendant simply doesn’t have enough case on hand to make a large lump payment.
But sometimes settlement negotiations don’t work. Sometimes this is because the defendant responds based on emotion rather than sound judgment. Sometimes the defendant gets bad legal advice and thinks he will successfully defend the lawsuit. In either case, we have no problem going to court if that’s what the defendant wants to do.
I-864 enforcement lawsuits may be brought in either state or federal court. They can be brought in state court because, at the end of the day, the I-864 is just a contract. State courts hear contract disputes all the time, so there’s nothing to prevent them from hearing an I-864 enforcement case.
These cases can also be brought in federal court. The Immigration and Nationality Act gives federal courts the ability to hear I-864 enforcement matters.
The choice between the two courts is a strategic one. For example, in a given state the federal court docket may move faster than the state court. Or it could be the other way around. Or our local co-counsel may have a preference for one venue over the other.
If litigation is required the case may take many months to complete. Some cases may be won relatively early on with a Motion for Judgment on the Pleadings or Motion for Summary Judgment. But other cases will require discovery – the form process where the parties exchange information about the case. I-864 enforcement cases rarely go to trial, however, as the facts are generally not in dispute.
A case that is fully fought out in court can take a year or longer to complete. And even after that time, the defendant could appeal the decision.
The I-864 contract says very clearly that the defendant is responsibly for legal fees. When a I-864 beneficiary wins her case in court, the judge should make a fee award against the defendant. Such fees will easily exceed $50,000, making it a terrible decision for a defendant to force us to litigate.
If a lawsuit is required and results in a judgment, the final step is to collect that judgment from the defendant. In some situations the defendant will agree to pay the judgment. In other cases, collections law must be used. These steps could include garnishing the defendant’s wages, garnishing his bank account, or placing a lien on his property. The time needed for full collection of a judgment depends on the defendant’s financial situation and the size of the judgment.
I-864 beneficiaries have valuable financial rights under that contract. And the law gives these clients powerful legal tools to enforce those rights. If you are a lawful permanent resident and believe you may have rights, please contact us to learn more.