Sponsored family member and they want to sue. HELP!

[lucyrich 20]

Didn't anyone READ the I-864? The part right above the sponsor's signature? Some excerpts:

What Does Signing the Form I-864 Require Me to do?

If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed,then, until your obligations under the Form I-864 terminate, you must: Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size

...

I agree to submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against me to enforce my obligations under this Form I-864;

The I-864 is NOT just an agreement to reimburse the government for means-tested benefits. It's an agreement to provide the sponsored immigrant with financial support directly. That's the whole point.

INA 213A very specifically says that no affidavit of support may be used to establish that an alien is not excludable as a public charge unless the affidavit of support says that the sponsor agrees to directly support the sponsored alien, and unless the alien has the right to sue the sponsor directly to collect such support.

Your uncle should consult an attorney instead of relying on Visa Journey, but it looks like this he will be required to provide support. What did he think he was signing?

See the following for some additional info.

http://www.venzonlawfirm.com/Assets/Catego...nals_Beware.pdf

http://www.ilw.com/articles/2006,0110-wheeler.shtm

[Boiler 46,119]

It is much more complicated than has been stated above.

Read the form.

I have heard of a spouse using it to claim support, it would be an interesting case.

But a warning to others.

It would costs a lot to take it to court, whether a lawyer would be interested is another issue.

I have read it, we may have been the only 2.

[meowmeowmeow 1]

wow that's terrible, and his own nephews and sister....hope he will get out of this predicament soon

[justashooter 430]

Didn't anyone READ the I-864? The part right above the sponsor's signature? Some excerpts:

What Does Signing the Form I-864 Require Me to do?

somebody needs to read the entire article and see it in perspective before playing chicken little.

the venzon pdf is a hit piece that is not well structured or written. i wouldn't hire a lawyer that argues or writes like that to defend my dog. ms venzon is a divorce lawyer, specialising in misrepresenting circumstance and law in the interest of receiving her client's retainer (cash) at any opportunity. ten to 1 says that her "spanglish" writing indicates that she herself is an immigrant, and that she gets her rocks off representing poor, desperate latinas who don't want to work, or at least in telling them she can get the gringo to pay so they don't have to work.

the ILW piece is credible, and shows both sides of the coin to those patient enuf to get to the end.

the long and short of it is that there are 3 test cases upon which people are proclaiming gloom and doom, and the sentinel case (stump) had a poor respondent representation that failed to apply all the available defenses, or to even understand the statute and the form based upon it.

at worst, an immigrant could petition for a payment of 12K a year, or so, but if they get anything else, thru their own work, or charity, or government program, that value is subtracted from the 12K. now i don't know about you, but i wouldn't be willing to get by on 12K．

i capture just a few cogent points from the article:

"Sponsors who wish to defend against enforcement actions brought by sponsored aliens might consider raising some of the following arguments:

While the statute and regulations may be clear, the affidavit itself is ambiguous as to the sponsor's obligation to maintain the sponsored alien. It is the language in the I-864 that determines whether it is an enforceable contract, not what is contained in the statute and regulations. Most of the form's ten pages relate to instructions on how to complete it, and most of the contractual language refers to the sponsor's obligations to reimburse the government for benefits received by the sponsor. Even the few places that mention the sponsor's promise to maintain the alien could be interpreted as a promise to ensure that he or she does not obtain these benefits. There was a reasonable misunderstanding among the parties over key aspects of the affidavit. Although Mr. Stump did not persuade the court with this argument, it is still worth making.

The contract is void for vagueness, since one of the key terms - the duration or term of the contract - is too indefinite. In fact, it is telling that the I-864 never uses the term "contract," but rather the term "affidavit of support." The affidavit only terminates when one of five events happen. Decades could pass before one of the parties dies or the sponsored alien naturalizes, abandons LPR status, or acquires 40 qualifying quarters. All of these conditions (unless you consider murder and suicide) are outside the control of the sponsor. Another key term - the amount of potential liability - is also left wide open. For the contract to be enforceable, the sponsor should be able to at least estimate the limit of his or her liability. Given that the sponsor is required to reimburse the government for any means-tested benefits received by the sponsored alien, including Medicaid, and the alien is capable of running up tremendous medical expenses, the sponsor is incapable of predicting the amount of potential liability. The benefits reimbursement provision could potentially force the sponsor to expend far more money than he needed to evidence in order to qualify as a sponsor. Similarly, while the sponsor only had to evidence the ability to maintain the sponsored alien as part of a total household unit, the Stump decision now requires the sponsor to maintain the alien at a level separate from the preexisting household, and thus at a higher total level.

There is a lack of consideration. The sponsor's, and more appropriately the joint sponsor's, promise to support the intending immigrant was a gift, which is unenforceable. Furthermore, the sponsor executed the affidavit only because without the affidavit the alien would be found inadmissible under INA § 212(a)(4). But consular and USCIS officials still retain the discretion to deny the application and find the intending alien likely to become a public charge, even when a satisfactory affidavit is submitted. Hence, the sponsor is receiving little in return for executing the document.

Fiancé(e)s who marry the petitioning spouse within 90 days of admission are allowed to file for adjustment of status without having to submit an I-130 petition. The affidavit of support requirements only apply to persons being petitioned under INA § 204. Fiancé(e)s do not adjust under this section of the law. Although the USCIS does not agree with this interpretation, there is no statutory basis for fiancé(e)s having to submit an I-864 at the time of filing for adjustment. Since the sponsor in the Stump case should not have had to submit an I-864, he received no consideration in doing so.

The affidavit is an adhesion contract, since the parties (the government and the sponsor) are in disparately unequal bargaining positions. The sponsor has no choice but to sign the affidavit if he or she wants the alien family member to reside lawfully in the United States. Faced with the possibility of permanent separation from a spouse or child, the sponsor has no option but to sign the form.

INA § 213A(a)(1)© states that the affidavit must be one where the "sponsor agrees to submit to the jurisdiction of any Federal or state court for the purpose of actions brought under subsection (B)(2)." But that section relates only to reimbursement actions brought by the government. Similarly, the first paragraph of Part 7 of the I-864, titled "Civil Action to Enforce," only mentions actions to obtain reimbursement for benefits received by the alien. The second paragraph acknowledges that the sponsored alien may maintain a suit, but it goes on to describe the plaintiff in those civil suits as agencies seeking reimbursement.

INA § 213A(a)(2), titled "Period of Enforceablity," states that the "affidavit of support shall be enforceable with respect to benefits provided for an alien before the date the alien is naturalized as a citizen of the United States, or if earlier, the termination date provided under paragraph (3)." Paragraph 3 adds termination upon acquiring 40 qualifying quarters. The statute does not mention the period of enforcement for actions brought by the sponsored alien, only for actions to reimburse for benefits received by the alien. This bolsters the defense that the affidavit is too vague to be enforceable by the sponsored alien.

The sponsored alien never intended to enter into a lasting marital relationship, but was merely using the sponsor to gain immigrant status. If the sponsor can show that the alien committed fraud, this is a complete defense to any future liability.

8 CFR § 213a.2(e) delineates the ways the contract terminates "by operation of law," which leaves open other ways for the contract to terminate in a court's discretion. The statutory and regulatory bases for termination are therefore not exclusive.

[lucyrich 20]

Didn't anyone READ the I-864? The part right above the sponsor's signature? Some excerpts:

What Does Signing the Form I-864 Require Me to do?

somebody needs to read the entire article and see it in perspective before playing chicken little.

...

the long and short of it is that there are 3 test cases upon which people are proclaiming gloom and doom, and the sentinel case (stump) had a poor respondent representation that failed to apply all the available defenses, or to even understand the statute and the form based upon it.

True, there aren't many test cases, but in every single one of them, the affidavit of support has been held to be enforceable by the alien against the sponsor. It's also true that some arguments were not made by defendants (perhaps because they didn't take the threat seriously?), and there may be many legal avenues left to shoot holes in the I-864. My point was to take the possibility of a lawsuit seriously and seek competent legal counsel, because OP's uncle is not going to be in a position to make those technical arguments regarding contract law if he just relaxes in blissful ignorance, thinking the affidavit of support is nothing more than an agreement to reimburse the government for means-tested benefits.

Another point to consider: Hypothetically, if OP's uncle does win a precedent-setting lawsuit and get the I-864 declared to be not enforceable by the alien against the sponsor in his case, then it could be bad news for future marriage-based immigrants. INA 213A(a)(1)(B) says that if the affidavit of support is not enforceable directly by the alien against the sponsor, then it may not be used to avoid inadmissibility on public charge grounds. So cases which currently would require an I-864 will have to be put on hold for awhile until the form is revised so that it can be considered enforceable.