Late in the evening of April 20, 2020, President Trump announced by Tweet that he…
Under the recently-announced Uniting for Ukraine program, U.S.-based individuals and businesses can sponsor Ukrainian refugees by filing a USCIS Form I-134, Affidavit of Support. (Yes, I know they are technically not refugees under U.S. or international law for this program, but that is beside the point). People are understandably concerned about their financial and legal exposure if they sign the Affidavit of Support. But here’s what you need to hear: Courts have consistently held that the I-*134* Affidavit of Support is unenforceable. This is not the enforceable Affidavit of Support – the Form I-864 – that is used in family-sponsored immigration.
What do I know about this?
My law practice focuses on federal lawsuits enforcing the Form I-*864* Affidavit of Support. I help low-income green card holders sue their sponsors for financial support. All of my clients are very low-income folks, usually who got their green card through a spouse, and who too often are survivors of domestic abuse. I help them enforce their right to financial support from their sponsor.
Having done this work for the past decade, I’ve reviewed every case out there (that I can find) involving Affidavits of Support. When it comes to the I-134, I have good news for would-be sponsors.
What is the difference between the I-864 and the I-134?
Affidavits of Support have been used for a very long time in U.S. immigration law. This is tied to the long-standing requirement that intending immigrants show that they will not be a “public charge” – which is to say primarily dependent on government benefits. The I-134 is the old version of that form. Would-be immigrants have long provided this form to show that someone in the U.S. would be willing to support them, as a way to overcome the issue of public charge inadmissibility.
In 1996, as part of a major overhaul of U.S. immigration, Congress reexamined Affidavits of Support. Congress was frustrated that Courts had determined that these I-134 Affidavits were unenforceable. So Congress required the immigration agency (then, INS) to create new binding Affidavits of Support. The law required that these new contracts be legally enforceable against sponsors.
The new Affidavits of Support – what became the I-864 – require the sponsor to provide any financial support needed to maintain the immigrant’s income at 125% of the poverty line. About $1,416 per month. The sponsor is also required to repay the cost of federal benefits provided to the immigrant. But the old I-134 contains neither of these requirements and again, is unenforceable.
The I-134 allows the sponsor to specify the types of support that the sponsor is willing to provide to the beneficiary. For the Uniting for Ukraine program, this can include things like helping the person find a job and medical care. But there is no assumption of the very specific support obligations entailed by executing an I-864.
Courts hold that the Form I-134 Affidavit of Support is unenforceable.
Every case that I have ever seen on the topic has held that the Form I-134 is unenforceable. Here are some examples:
- Rojas-Martinez v. Acevedo-Rivera, No. 09-cv-2048, at *4 (D.P.R. June 8, 2010) (“As discussed above, it has been held that Form I-134 is not a binding contract between the parties; thus, Plaintiff, the sponsored immigrant, cannot enforce its terms.”)
- Zirintusa v. Whitaker, No. 05-cv-1738, at *10 (D.D.C. Jan. 3, 2007) (“[Plaintiff] asserts that Whitaker breached the Affidavit of Support (Form I-134) submitted to the INS, in which [Defendant] promised to provide room, board, and tuition to [Plaintiff] for a period of three years. [Defendant] argues that the Affidavit of Support is not a binding contract between the parties. Federal Courts have repeatedly sided with [Defendant].”
- Cheshire v. Cheshire, No. 3:05-CV-00453, 2006 WL 1208010, at *2 (M.D. Fla. May 4, 2006) (“[F]ederal courts have consistently found that Form I-134 is not a legally enforceable contract against a sponsor by a sponsored immigrant.”).
- Stump v. Stump, No. 1:04-CV-253, 2005 WL 1290658, at *4 (N.D. Ind. May 27, 2005) (finding that the I-134 Form “is a nonenforceable promise by the sponsor to support the alien”).
- Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 1290658, at *4 (N.D. Ind. May 27, 2005) (finding that the I-134 Form “is a nonenforceable promise by the sponsor to support the alien”).
Again, the entire reason that Congress revisited Affidavits of Support in 1996 was because Courts determined the old form was unenforceble.
Uniting for Ukrain sponsors cannot be sued under the Affidavit.
My assessment – which I believe is shared by all immigration lawyers I know – is that Uniting for Ukraine sponsors cannot be sued if they submit a Form I-134 for that program. So for example:
- Hospital/medical bills. Even under the binding Form I-864 Affidavit, there is no generalized obligation to repay medical bills. If a sponsored immigrant gets a big bill for treatment, the hospital has no authority to go after the I-864 sponsor for this cost. Even more so, it would be baseless to use the I-134 as a tool to go after a sponsor.
- Medicaid and public benefits. Under the binding Form I-864, the government can sue a sponsor for the cost of Medicaid and other programs provided to the immigrant. Note that as a practical matter, these suits are all but unheard of. But again, this obligation to repay public benefits simply does not exist under the I-134.
- Financial support to the sponsored individual. The lawsuits cited above were attempts by someone sponsored with an I-134 to use as a tool to sue their sponsor for support. Make no mistake, the I-*864* is absolutely binding and can give rise to serious financial liability. But the I-134 is altogether different, and the courts I cite above consistently hold that the I-134 cannot be the basis for a financial support lawsuit.
I hope this makes folks feel less stressed about participating in the Uniting for Ukraine program. Obviously, I’m not suggesting you should participate and not actually help the person you are sponsoring. But I think there are lots of well-intentioned people out there who do want to help, and are just afraid about getting into something that could be financially devastating for their family. My assessment is that this concern is misplaced given the strong case law about the unenforceability of the I-134. So if you can, go help someone in Ukraine who needs that help desperately.