A joint sponsor (also called co-sponsor) has the same liability under an Affidavit of Support…
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 and supporting facts). This post goes through what we include in our standard I-864 enforcement complaint. I have seen at least two lawyers copy this complaint almost word-for-word. So if imitation is the highest form of flattery, at least a couple of lawyers seem to think the document is okay 🙂
1 – Introduction.
At this point, I’ve litigated Affidavit of Support cases in federal courts in Alabama, Alaska, California, Colorado, Maryland, Minnesota, Montana, North Carolina, Texas, Washington, Wisconsin… and probably other places that I’m forgetting. Almost without an exception, when we file a new Affidavit of Support lawsuit it will be the first time that our assigned judge has seen one of these matters. For that reason, several parts of our complaint are intended to flag for the judge that this is a unique type of case. (I’ll usually note also in my motion practice early in the case that the matter is an issue of first impression for the district).
…when we file a new Affidavit of Support lawsuit it will be the first time that our assigned judge has seen one of these matters
Our introductory section, right in paragraph #1, calls the judges’ attention to the nature of the claim. We then give the most concise possible summary: our client is a green card holder whose immigration was sponsored by the defendant; he signed a financial support contract in the course of being a sponsor, and hasn’t lived up to his obligation.
2 – Jurisdiction and venue.
Subject matter jurisdiction. This refers to the authority of a court to hear the type of case at issue. Federal courts, generally speaking, can hear disputes between parties who live in different states, and claims arising under federal law. The Immigration and Nationality Act at 8 U.S.C. § 1183a(e)(I) specifically gives sponsored immigrants a cause of action to enforce the Form I-864. Virtually every court to consider the issue has easily concluded that federal courts possess “federal question” jurisdiction over such claims. The only two courts to hold otherwise were two magistrate decisions not take up on appeal in Colorado and the Middle District of Florida. See Winters v. Winters, No. 6:12-cv-536, 2012 U.S. Dist. LEXIS 75069 (M.D. Fla. Apr. 25, 2012).
Personal jurisdiction. This refers to the authority of the court over the defendant, personally. Under 8 U.S.C. § 1183a(a)(1)(C), a defendant submits to the personal jurisdiction of any court with subject matter jurisdiction over an I-864 enforcement case.
Venue. In addition to personal jurisdiction, venue refers to the requirement that the case be brought in the geographically correct court. Venue is appropriate under 28 U.S.C. § 1391(b)(2) in the Plaintiff’s place of residence because that is where the injury caused by the breach of contract is experienced.
3 – Parties.
The parties to an Affidavit of Support lawsuit are the sponsored immigrant (my client) and the sponsor. The only time there will be an additional party is if there was a joint sponsor (a/k/a co-sponsor) who signed an additional Affidavit of Support. The government is not a necessary party to the case, and play no role whatsoever in these enforcement matters.
4 – Factual allegations.
Background about the Affidavit of Support.
The Federal Rules of Civil Procedure require complaints to set forth only a “concise” statement of the basis of a lawsuit. But recall that the judge involved in the case likely will not have come across an I-864 enforcement lawsuit before. For that reason, I like to be extra detailed about the historic context for the lawsuit and the provisions of the Affidavit of Support contract. We walk through why the I-864 is required in the first place, and the critical contractual provisions of the document. To call out some of these allegations, as in my sample complaint:
- The Affidavit of Support obligation may be enforced by the immigrant beneficiary, who is a third-party beneficiary thereof. 8 U.S.C. § 1183a(a)(1)(B); 8 C.F.R. § 213a.2(d).
- A sponsored immigrant is not required to make any demand for payment from a sponsor prior to commencing a lawsuit to enforce the sponsorship obligation under the Affidavit of Support. 8 C.F.R. § 213a.4(a)(2).
- By signing the Affidavit of Support, the sponsor agrees to submit to the personal jurisdiction of any federal or state court that has subject matter jurisdiction over a lawsuit against the sponsor to enforce obligations under the Affidavit of Support. 8 U.S.C. § 1183a(a)(1)(C).
- By signing the Affidavit of Support, the sponsor certifies under penalty of perjury that the sponsor has read and understands each part of the obligations described in the Affidavit of Support and agrees freely and without any mental reservation or purpose of evasion to accept each of those obligations in order to make it possible for the immigrant(s) listed in the Affidavit of Support to become lawful permanent residents of the United States.
- A sponsor’s duties under the Affidavit of Support commence when the beneficiary becomes a Resident based on an application that included the Affidavit of Support.
- An Affidavit of Support sponsor must continue to perform under the contract until the occurrence of one of five events (collectively “the Terminating Events”) set forth in the contract.
- The sponsor’s obligation under the Affidavit of Support concludes once the beneficiary becomes a U.S. citizen (the “First Terminating Event”). 8 C.F.R. § 213a.2(e)(2)(i)(A).
- The sponsor’s obligation under the Affidavit of Support concludes once the beneficiary has worked or can receive credit for 40 quarters of work under the Social Security Act (the “Second Terminating Event”). 8 U.S.C. § 1183a(a)(3)(A); 8 C.F.R. § 213a.2(e)(2)(i)(B).
- The sponsor’s obligation under the Affidavit of Support concludes once the beneficiary is no longer a permanent resident and has departed the U.S. (the “Third Terminating Event”). 8 C.F.R. § 213a.2(e)(2)(i)(C).
- The sponsor’s obligation under the Affidavit of Support concludes once the beneficiary is subject to an order of removal but applies for and obtains in removal proceedings a new grant of adjustment of status based on a new affidavit of support, if required (the “Forth Terminating Event”). 8 C.F.R. § 213a.2(e)(2)(i)(D).
- The sponsor’s obligation under the Affidavit of Support concludes once the beneficiary dies (the “Fifth Terminating Event”). 8 C.F.R. § 213a.2(e)(2)(i)(E).
- An Affidavit of Support is considered executed once it is signed and submitted to either USCIS or the Department of State in support of an intending immigrant’s application. 8 C.F.R. § 213a.2(a)(B)(ii).
- Once executed, the Affidavit of Support becomes a binding contract between the sponsor and the United States government for the benefit of the sponsored immigrant. 8 C.F.R. § 213a.2(d).
- A sponsor’s support obligation under the Affidavit of Support commences when an intending immigrant obtains Resident status on the basis of an application that included the sponsor’s Affidavit of Support. 8 C.F.R. § 213a.2(e)(1).
Plaintiff’s immigration to the United States.
Next, we walk through the history of how our client became a U.S. resident based upon the defendant’s financial sponsorship. In 90% of cases, I will have obtained my client’s Alien File from USCIS via a Freedom of Information Act request. Although these take about 45 days to complete, we often expend that much time with initial settlement communications with the defense. Having obtained the A-File, I include redacted copies of all the main documents that trace my client’s immigration history:
- Form I-864 Affidavit of Support! This is always Exhibit 1 to my complaints.
- If there was a joint sponsor Affidavit of Support or Form I-864A household member contract, this will be Exhibit 2.
- I-130 or I-129F petition.
- Approval notice for a petition (although often I will just reference the approval stamp on the petition).
- DS-260 immigrant visa application or I-485 adjustment of status application, depending on whether it was a consular or adjustment case.
- For consular cases, the Form I-94 arrival record and visa foil.
- Approval notice for adjustment of status application.
- Client’s green card (Form I-551).
- Form I-751 petition to remove conditions on residency, if my client has filed it.
Defendant’s breach of contract.
Here, we walk through the financial allegations that show the Defendant is in violation of his duty to provide financial support. To calculate the damages that are owed, we simply take our client’s annual income for each year where support is being sought, and compare this to 125% of the poverty guidelines as in effect that year. You can find them conveniently collected here.
This is another example of going beyond what’s technically required in a complaint. But I like to make clear that the contract has not been rendered unenforceable by one of the five Terminating Events. (See above for the list of five Terminating Events). Usually, the Defendant will plead lack of knowledge since, for example, the Defendant will claim not to know whether the plaintiff has become a citizen yet. Still, I like to plant our flag and make clear that we allege the contract remains enforceable.
5 – Claim for relief.
The elements that need to be pleaded in the Complaint are simply for breach of contract. While these may vary from jurisdiction to jurisdiction on a hyper-technical level, the basic allegations for material breach of contract are well-established. No defendant could possibly claim that they have not been put on notice about what claim is being asserted against
6 – Request for relief.
You have to tell the judge what you want if you win! At its most basic, there are three things we are asking the judge for:
- Direct damages. These are equal, again, to 125% of the poverty line for the period where support is sought, minus our client’s actual income. We will ask for a specific dollar figure going up to the date when the complaint is filed, then state how additional damages should be calculated leading up to the date judgment is rendered.
- Specific performance. The sponsor’s obligation under the contract carries on indefinitely into the future, until one of the five Terminating Events. So we ask the judge to order the sponsor to comply with his support obligation on a month-to-month basis until the contract is terminated.
- Attorney fees and costs. Lastly, we ask for an award of all Plaintiff’s attorney fees and costs per 8 U.S.C. § 1183a(c) and the fee and cost provision within the Affidavit of Support contract. To date, no federal court has ever denied attorney fees to a prevailing plaintiff in an Affidavit of Support enforcement case.
That, in a nutshell, is what goes into our Affidavit of Support enforcement complaint. Drop a comment with any questions, comments, or critiques.