I've been representing clients in lawsuits to enforce the USCIS Form I-864, Affidavit of Support…
As I explain elsewhere on this blog, almost all claims under the USCIS Form I-864, Affidavit of Support result in settlement. To get an idea of how long that process takes, read this post. Having settled many of these claims, here is an overview of how we generally approach settlement.
What goes into an Affidavit of Support settlement?
The core responsibility of a Form I-864 sponsor is to ensure that the beneficiary’s income is at 125% of the federal poverty line. That’s roughly $1,400/month under 2022 standards. The obligation continues until the five Terminating Events that end a sponsor’s obligation. Also, the green card holder – the beneficiary of the Form I-864 – is entitled to all of the costs, including attorney fees, for enforcing the affidavit. With that in mind, I think of Form I-864 settlement money as falling into three buckets.
(1) Past claims (also called support “arrearages”).
Here is a common scenario for my clients. Jane, the foreign citizen, separates from her husband David, who served as her immigration sponsor. He has been abusive, and she flees to a women’s shelter. Let’s say they separate on January 1. Six months later (June 1), Jane learns about the Affidavit of Support and calls our law firm to see if she can get support from David. From January to June, Jane has been unemployed and David hasn’t been providing any support.
David has been violating his legal duty to provide support to Jane for those six months from January to June. In this scenario, he signed the Affidavit of Support, and Jane’s income has been zero during that time period. Whether or not Jane requested support (she has no legal responsibility to ask for it), David has been in breach of the Form I-864 contract by not providing Jane with $1,400/month.
I refer to that six-month period as Jane’s “past claims” to support under the Form I-864. Alternatively, we also refer to them as her support “arrearages” – a term borrowed from family law. If we were able to get a Court ruling tomorrow, a judge could have the authority to award Jane a judgment for those past six months of support ($1,400 x 6 = $8,400).
For settlement purposes, it is theoretically easy to calculate support arrearages. For someone who has been unemployed, this is simply a matter of multiplying out all of the months for which support was owed to her. If the person is employed, the arythmetic is also easy in principle. Since the support level is tied to income (125% of the poverty line), the value of a claim is simply 125% of the poverty line for a given year – or fraction of a year – minus my client’s actual income.
(2) Future claims.
In addition to past claims for support, my clients often have significant value in the claims that they will later be able to raise under the Affidavit of Support. Remember that the Form I-864 contract terminates only after one of five Terminating Events have transpired. Lawyers often talk about the contract ending after ten years, but that is dead wrong. The contract terminates (among other factors) if the sponsored immigrant has 40 quarters of work per the Social Security Administration. But if the individual is not working, she might not obtain quarters of work and the Affidavit of Support could remain enforceable for longer than ten years.
The future, as we all know, is inherently uncertain. There is no way for me, my client, the defense lawyer, or anyone else to know how to predict the future value of claims under the Form I-864. Here are a couple of examples to illustrate that.
First, imagine that Jane – introdcued above – has a PhD in civil engineering from the University of Montreal. She speaks fluent English. She needs to get a license to be able to practice civil engineering in the United States. But we expect that after a year Jane will have her license and will have no problem finding a well-paying job. On those facts, it would be reasonable for everyone involved in a lawsuit to guess that, in all likelihood, Jane will not need more than one year of future support under the Form I-864.
On the other hand, imagine that Jane has no education past 8th grade. She is a non-native English speaker who struggles with basic communication. She has no employment history and has never worked outside the home. In this scenario, it is reasonable to predict that it will be years before Jane will be in a stable situation earning more than 125% of the poverty line. Consequently, it is reasonable to predict that Jane will need years of financial support under the Form I-864.
One way to approach the uncertainty of future claims is to leave the matter unresolved in settlement agreements. I’ll refer to this as the “open-ended” approach to dealing with future claims. The parties can simply agree to check in every month. The immigrant reports what her income has been, and the defendant cuts a check based on the difference between that and 125% of the poverty line.
That approach often seems appealing to defendants, at least to begin with. Defendants often like the idea that they won’t end up “over-paying” with this approach, since they will pay support only for months they know for certain that the non-citizen is not working. Once she is employed, the payments stop under this approach.
The problem for sponsor-defendants, however, is that there is no resolution. The claim simply continues to hang over the defendant’s head, possibly forever. Maybe the sponsored immigrant returns to work in a month… but if she needs support for the rest of her life, that is a risk the sponsor chooses to take. On top of that, there is the administrative hassle and expense of monthly check-ins to administer the settlement.
In my experience, most sponsor-defendants and their lawyers prefer a “lump sum” approach to future claims. To put that in plain English, sponsors prefer to set a specific dollar amount. In exchange for paying that specific amount, the sponsor-defendant is conclusively released from all liability under the Affidavit of Support. On this approach, there is finality for the defendant, who can know they are definitively done with the legal claim.
There are inherent risks to both parties with the lump sum approach. The sponsor-defendant risks over-paying for future support. That is, the sponsor might agree to an amount representing five years of support, but the immigrant ends up returning to work after four years. The defendant “overpaid” because if he had perfect knowledge of the future, he would have paid for only four years of support.
But there is a risk to the green card holder plaintiff as well. She might agree to accept a sum representing four years of support, but end up being unemployed for five years. On that set of facts, she feels the defendant has “under paid.” If she had perfect knowledge of the future, she would have demanded five years of support.
Despite those risks, most settlement agreements that I negotiate end up taking a lump sum approach to resolution. Both parties prefer the finality of being able to put the claim conclusively to rest. For what it’s worth, I have never once had a defense attorney tell me that a sponsor-defendant regretted taking a lump-sum approach to settlement. To the contrary, I have seen more than one defense lawyer negotiate an open-ended settlement, only to change their mind months later and renegotiate for a lump sum agreement.
(3) Attorney fees and other costs.
Finally, any settlement agreement will include a third category of funds for the costs spent by the green card holder to enforce the Form I-864 contract. It is crystal clear under federal law that a court will award all reasonable costs spent by the green card holder to enforce the Affidavit of Support via settlement talks and a lawsuit.
People often have a vague idea that lawyers are expensive, but let me often some specific numbers. For an Affidavit of Support case that involves more than simply getting a lawsuit filed, the green card holder’s legal fees will very soon reach $20,000. Fees in this range have been awarded, for example, when we had to file a default against a client who failed to defend a lawsuit. For a lawsuit that progresses into discovery and dispositive motions practice, fees will be in the neighborhood of $100,000 for the plaintiff’s side alone. In numerous Affidavit of Support cases – at least those where the sponsor has chosen to fight a major legal war – attorney fees will represent much more money than what the green card holder was seeking in the first place.
The smartest thing a sponsor-defendant can do to reduce the costs of settlement is to negotiate early and seriously. The longer litigation progresses, the higher legal costs are going to be. And those are exclusively the responsibility of the defendant.
Here’s one example of how this works in reality. I have a client, Thea, whose case I believe should settle for roughly $60,000. The defense lawyer tells me that they believe the case should not settle for more than $40,000. The difference between those two numbers is because the defendant believes that my client has been working “under the table” and has earned $20,000 which should reduce the defendant’s liability.
So what the defendant wants to do in the above scenario is to get heavily into the discovery process. The defendant wants to send pages of written discovery requests, take my client’s deposition, and send subpoena duces tecum requests to banks, financial institutions, and whomever else they can think of. All of this is going to take months and many thousands of dollars from both teams of lawyers. In the very best scenario, the defendant finds the evidence that they were hoping for and is able to convince the judge that it results in less recovery for the plaintiff. That means – on this hypothetical – that the defendant doesn’t have to pay the disputed $20,000 in extra damages.
But this doesn’t mean that the plaintiff loses. She still wins the lawsuit, and the defendant is still responsible for all legal fees. In this hypothetical, the defendant might very easily end up spending $30,000 in legal fees to prove his point about the $20,000 evidence issue. Not only did that not save him money, it cost him an extra $10,000 on top of what we had asked for in the first place.
Rather than gearing up the war machine of litigation to prove relatively minor points, sponsor-defendants should take a careful look at what is actually going to be gained by battle. In the scenario above, the smart approach is for the lawyers to put their heads together about how to avoid a discovery battle. Often with the voluntary exchange of some agreed-upon documents, we can find a way to “meet in the middle.” In the scenario above, for example, if the green card holder has offered $60,000 and the defendant is willing to pay $40,000, a smart result for everyone could be to simply split the difference and agree to $50,000. As shown above, that approach can save the defendant a lot of money that would otherwise go to the lawyers.
I tell my clients this, and I will share the same thoughts with any Affidavit of Support sponsors reading this blog post. If a Form I-864 lawsuit progresses into litigation, the only people who are sure to gain from a financial perspective are the lawyers. The defense lawyer is going to be charging the sponsor-defendant for every minute he spends on the case. Likewise, I will be tracking every minute spent representing the green card holder. At the end of the litigation, the sponsor is going to wind up paying both sets of those legal fees. Both parties are better off – the green card holder and also the sponsor – if financial resources are focused on reaching a settlement instead of fighting pointless legal battles.
Remember: the core financial support duty owed by a sponsor is only around $1,400/month. Without a doubt, the sponsor has the legal right to hire the biggest law firm in the country to wage a take-no-prisoners defense in federal court. But it is ofter far less expensive, and far wiser, to pencil out a fair settlement before the lawsuit gets seriously underway.
Structuring settlement payments under the Affidavit of Support.
Let’s assume that we have a settlement agreement that has taken the lump sum approach discussed above. The defendant has agreed to pay $60,000 in support to my client, and $10,000 in her legal fees for a total of $70,000. How does that amount actually get paid? Basically, there are three ways this happens.
(1) Full lump-sum payment.
In the best-case scenario for all involved, the sponsor-defendant agrees to pay to the total amount owed in a single payment. Often this involves a short window – one to two weeks is typical – to allow the sponsor to move funds between his personal accounts. Once the funds are available, they are wired to my firm’s client trust account and disbursed to a client as soon as they are available. If a lawsuit is active, a notice of dismissal is then immediately filed with the Court and the matter is completely resolved.
On this approach, the sponsor avoids the additional costs that are associated with any form of structured payment plan. If collection is to occur over a period of time, the defendant is responsible for paying a sufficient rate of interest to make the gradual payment acceptable to the green card holder.
(2) Lump-sum plus monthly payments.
Some sponsors simply do not have the financial wherewithal to pay the full settlement cost, especially in larger cases. The second best option is for the defendant to make an initial down payment, then pay the balance over a specified period of time. Generally, the defendant will pay 50% of the overall amount, with the remainder paid on a monthly basis.
(3) Monthly payment plan.
The least attractive option for all parties is for the full financial obligation to be paid off on a purely monthly basis. This result typically results in a structured settlement that takes years to resolve. I have numerous cases of this nature that take more than five years to complete. This is obviously unattractive to the plaintiff green card holder, who gets relatively little in support payments and has to deal with the uncertainty that the defendant might try to skip payments, in which case enforcement may be required in court. But this approach is also unappealing to defendants, who end up paying a much higher overall amount to effectively finance the settlement agreement.
Conclusion: it is wiser to settle Affidavit of Support claims than to litigate.
Both parties – green card holder plaintiffs and sponsor-defendants – are best served by working hard to settle claims under the Affidavit of Support. The law surrounding enforcement of the Form I-864 is rock solidly on the side of the green card holder, who is going to win the claim sooner or later. Both sides are best served if the case is settled at the earliest possible juncture, and available funds can go towards liability under the Form I-864 rather than to teams of lawyers.