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What goes into an I-864 Affidavit of Support lawsuit complaint?

I’ve been representing clients in lawsuits to enforce the USCIS Form I-864, Affidavit of Support for about a decade at this point. Over that time, I’ve made a lot of changes to the template that we use for federal lawsuit complaints. (A complaint is the initial case document that sets forth the plaintiff’s legal claim…

No, Uniting for Ukraine sponsors cannot be sued under the I-134 Affidavit of Support

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…

What is a joint sponsor’s liability under the Form I-864, Affidavit of Support?

A joint sponsor (also called co-sponsor) has the same liability under an Affidavit of Support as the primary sponsor. By signing the USCIS Form I-864, the joint sponsor agrees to “joint and several” liability on the contract. The sponsored immigrant can sue the joint sponsor for financial support in state or federal court. A joint…

Can you enforce the Form I-864 Affidavit of Support in a divorce case?

Yes – in most states the USCIS Form I-864, Affidavit of Support can be enforced in a divorce case. A family law court has the authority to enforce the I-864 either (1) as a breach of contract claim or (2) through spousal maintenance (also called alimony). But as discussed below, divorce court is not necessarily…

USCIS Form I-864 enforcement in divorce court – another cautionary tale (Marriage of Bychina)

It is a theme that I have written about many times on this blog and elsewhere. Yes, the Affidavit of Support can theoretically be enforced in family law proceedings. But in practice, beneficiaries frequently encounter problems in that forum. Here is another example. Marriage of Bychina was a family law case in Illinois. See No.…

How do you calculate damages under the I-864, Affidavit of Support

In an important ruling for one of our I-864 enforcement clients, a Court ruled today that damages under the USCIS Form I-864, Affidavit of Support are determined based on taxable income. In Flores v. Flores, the Western District of Washington ruled that the term “income” is governed by the definition contained at 8 C.F.R. §…

How do you settle a claim under 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…

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…

What affirmative defenses are available to Form I-864 sponsors? None.

The Eleventh Circuit has held that the common law defenses of unclean hands, anticipatory breach, and equitable estoppel are unavailable to a sponsor who has signed a USCIS Form I-864, Affidavit of Support. Blevich v. Thomas, 17 F.4th 1048 (11th Cir. 2021). Belevich joins a growing line of cases that stand for the proposition that…

The federal right to immigration “alimony” under the Form I-864, Affidavit of Support

A version of this article first appeared in the Side Bar journal for the Litigation Section of the Federal Bar Association (Spring 2021). If you are like most federal litigators – this author included – you would never enter divorce court unless your name was on the case caption. The vitriol, the sabotage, the meanness.…

How long does the I-864 support last?

A sponsor’s obligation under the Form I-864 lasts indefinitely. It terminates only upon one of five Terminating Events, including when the green card holder has 40 quarters of work or becomes a U.S. citizen. It *does not* terminate automatically after ten years, even though lawyers mistakenly

Can a nuptial (prenup) agreement waive rights under the Form I-864?

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…

This Post Has 2 Comments

  1. I entered the US on 10/2015 on an ESTA visa, I left US on 5/2018(overstayed my visit), I got married last year. We never petition for adjustment of status. What can I do from from country, Chile to go back? My son and wife are in the US she is a US citizen. I had a family emergency and needed to leave. TIA. Hope you can help.

    1. Albert, unfortunately you will need an I-601 hardship waiver to re-enter the U.S., based on what you have said. But overstaying more than one year you are subject to a 10-year bar on reentry. Overcoming that requires a special pardon based on hardship to your family.

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