Withdraw

[TOM&Riz 4]

Your incorrect - they (sponsored immigrant) can (and have) sue(d) using the 864.

It's spelled out in the Federal Regulations 8 CFR 213a.2 - Use of affidavit of support.

The regulation gives the sponsored immigrant the ability to use the 864 to get at least the poverty level of income provided to them from the sponsor. (mind you - as a single person, not at the level the sponsor used, say 2 people)

There are three cases I have come across where this was used. In the one case, the immigrants income was deducted from the (single) poverty level, and the rest had to be paid to her by the sponsor. (until the 864 was no longer valid - you know - the four reasons listed in the instructions).

A good write up of the Stump v. Stump case (which I touched on above)

Here are some more write up's on this from a lawyer and another.

Google these cases for more info:

To end - this statement:

you need to read and study these words carefully, nowhere in any statement or contract in the I-864 does it give specific rights to the beneficery, it is a contract between the SPONSOR and the GOVERNMENT. Of course sponsored beneficeries have sued on the basis of failed support but i challenge you to find a award that was presented according to a provision in the I-864 ....... there ISN'T one !!!!

This is simple contract law and if you are in fact an attorney ... you need to brush up on your contract law

[Bobby+Umit 161]

you need to read and study these words carefully, nowhere in any statement or contract in the I-864 does it give specific rights to the beneficery, it is a contract between the SPONSOR and the GOVERNMENT. Of course sponsored beneficeries have sued on the basis of failed support but i challenge you to find a award that was presented according to a provision in the I-864 ....... there ISN'T one !!!!

This is simple contract law and if you are in fact an attorney ... you need to brush up on your contract law

Perhaps you didn't read the Federal code snippit it posted. Here it is again. It clearly states that the 864 is a contract between the sponsor and the US government for the benefit of the sponsored immigrant.

(d) Legal effect of affidavit of support.

Execution of a Form I864 under this section creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, State, or local governmental agency or private entity that administers any means-tested public benefits program. The sponsored immigrant, or any Federal, State, or local governmental agency or private entity that provides any means-tested public benefit to the sponsored immigrant after the sponsored immigrant acquires permanent resident status, may seek enforcement of the sponsor's obligations through an appropriate civil action.

Also, direct your attention to the comma after the "The sponsored immigrant," then read the rest of the statement - as you can see, the code spells out that the sponsored immigrant can seek enforcement, along with any government/private parties.

Now - you must not of clicked on the link for the Stump and Stump case - I accept your challenge - here you go - the first paragraph from the write-up.

Nine years after Congress imposed strict affidavit of support requirements on all family-based immigrant visa petitioners, a federal district court in Fort Wayne, Indiana has upheld the sponsored alien's right to recover money from her sponsor. Stump v. Stump, 2005 U.S. Dist. LEXIS 26002 (October 25, 2005). Immigration practitioners who had been waiting for a finding on the enforceability of the I-864 affidavit of support by sponsored aliens and for direction on how it is to be applied against sponsors finally received the first definitive ruling.

In the case before the court the sponsored alien was the spouse of a U.S. citizen who originally entered as a fiancée. The U.S. citizen spouse had executed and filed an I-864 on behalf of his wife as part of her application for adjustment of status. The parties separated approximately one year after they were married and were in divorce proceedings at the time this action was brought. In lieu of seeking maintenance (spousal support or alimony) in the state court action, the alien spouse sued the sponsor in federal court asking for money owed under the terms of the affidavit of support.

Not a lawyer - but pretty sure that meets your challenge (postnote - I talked with a lawyer over this matter prior to filling out the 864 for my own case, and they told me the same thing posted above)

[TOM&Riz 4]

Perhaps you didn't read the Federal code snippit it posted. Here it is again. It clearly states that the 864 is a contract between the sponsor and the US government for the benefit of the sponsored immigrant.

Also, direct your attention to the comma after the "The sponsored immigrant," then read the rest of the statement - as you can see, the code spells out that the sponsored immigrant can seek enforcement, along with any government/private parties.

Now - you must not of clicked on the link for the Stump and Stump case - I accept your challenge - here you go - the first paragraph from the write-up.

Not a lawyer - but pretty sure that meets your challenge (postnote - I talked with a lawyer over this matter prior to filling out the 864 for my own case, and they told me the same thing posted above)

OK here is an example, the contract you sign has to have the provisions of duty encased in the instrument itself, would you sign a loan document without knowing the consequences ? would you sign for a credit card without knowing the apr ? it is the same with any contract government or not. The award you presented is an award of support saying the sponsor agreed to support the immigrant to the government, the I-864 is not being used as a instrument only for a verification.

If I agreed to pay your electric bill to your neighbor for him letting me use his mower, every month for 5 years and i stopped paying your electric bill, can you sue me ? or was the contract between your neighbor and me ?

that just was not an award from a provision according to the I-864

just can't make it any clearer then that

Edited March 28, 2010 by Tommy&Riza

[TOM&Riz 4]

Perhaps you didn't read the Federal code snippit it posted. Here it is again. It clearly states that the 864 is a contract between the sponsor and the US government for the benefit of the sponsored immigrant.

Also, direct your attention to the comma after the "The sponsored immigrant," then read the rest of the statement - as you can see, the code spells out that the sponsored immigrant can seek enforcement, along with any government/private parties.

Now - you must not of clicked on the link for the Stump and Stump case - I accept your challenge - here you go - the first paragraph from the write-up.

Not a lawyer - but pretty sure that meets your challenge (postnote - I talked with a lawyer over this matter prior to filling out the 864 for my own case, and they told me the same thing posted above)

*If a sponsor fails to satisfy this requirement, USCIS may, after notice and opportunity to be heard, impose on the sponsor a civil penalty of not less than $250 or more than $2,000, or if such failure occurs with knowledge that the sponsored alien has received any means-tested public benefits (other than benefits described in 401(b), 403©(2), or 411(b) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996) not less than $2,000 or more than $5,000.

*HQRPM 70/21.1.13

[JimVaPhuong 4,863]

OK here is an example, the contract you sign has to have the provisions of duty encased in the instrument itself, would you sign a loan document without knowing the consequences ? would you sign for a credit card without knowing the apr ? it is the same with any contract government or not. The award you presented is an award of support saying the sponsor agreed to support the immigrant to the government, the I-864 is not being used as a instrument only for a verification.

If I agreed to pay your electric bill to your neighbor for him letting me use his mower, every month for 5 years and i stopped paying your electric bill, can you sue me ? or was the contract between your neighbor and me ?

that just was not an award from a provision according to the I-864

just can't make it any clearer then that

You and Bobby are both right, according to precedent.

You are correct that the federal statutes are not relevant in enforcing the terms of the contract because the federal statutes are not included in the body of the contract. Even though the contract makes references to the federal statutes, those statutes are not "bound" in the contract. Federal statutes can and do change. A civil contract must be clear and unambiguous, and references to nefarious documents which are not fully bound in the contract are not an enforceable part of the contract. This doesn't mean that the government can't enforce it's own laws - obviously, they can. However, they can't claim that a violation of a law constitutes a violation of a contract unless the text of the law is included in the contract. Otherwise, separate court action is required to enforce the law.

The I-864 does specifically state that the beneficiary may sue for support.

If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864 that you signed, that person may sue you for this support.

Some courts have found that the text in the affidavit sufficiently explain the sponsor's obligations, albeit in layman's terms, that the contract can be enforced in general compliance with the federal statutes based solely on the text in the contract.

Many beneficiaries have sued for support based on the I-864 contract. The results have been mixed, as the ILW article cited by Bobby points out. Some sponsors have used the same argument you've made - that the I-864 is a contract between the sponsor and the US government, and the beneficiary can't seek enforcement because they aren't a party to the contract. In Davis vs Davis an Ohio appellate court found otherwise, and determined that the beneficiary could seek enforcement in either a state or federal court. In that case, the plaintiff had tried to have the I-864 terms enforced by a divorce court, but the judge said that the suit would have to be filed in a federal court. It was the view of the divorce court judge that any attempt to enforce the contract was an attempt to enforce a federal statute. The appellate court determined that "A sponsored immigrant has independent standing to enforce the sponsor's obligation", even though both parties conceded that the affidavit was a contract between the sponsor and the federal government. The court determined that sufficient notice of this is given to the sponsor in the affidavit itself. The court further found that the sponsor agrees to submit to the jurisdiction of any US or state court in a civil suit seeking to enforce the contract, according to the text of the affidavit itself.

http://www.sconet.state.oh.us/rod/docs/pdf/6/2004/2004-ohio-6892.pdf

Where the beneficiary succeeded in Davis vs Davis, some other beneficiaries have not. In some of these cases, the ultimate outcome isn't known yet because the cases are still making their way through the appeals process. The problem is that many of these cases are being tried in state courts, where each court will apply the laws of the state in determining whether to enforce the contract. Stump vs Stump, however, is considered a landmark case because it was tried in a federal court. Presumably, this sets a precedent for other cases tried in the federal court system.

The bottom line is that the beneficiary's ability to seek enforcement of the affidavit is still being tested in courts around the country. It might be dangerous to assume that a sponsor could not be sued for enforcement of the affidavit, even if the sponsor lives in a state where a state court has already refused to enforce the affidavit on the basis that the beneficiary is not a party to the contract, because the beneficiary can always sue in a federal court.

[TOM&Riz 4]

If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864 that you signed, that person may sue you for this support.

I still don't see this text in the contract I signed ! Thank you for this information, I would challenge a state court on that point of no declaration !

[JimVaPhuong 4,863]

I still don't see this text in the contract I signed ! Thank you for this information, I would challenge a state court on that point of no declaration !

The actual contract begins in part 8, and a signature is required at the end of the list of terms. Part 8 begins on page 6 of the form in both the 10/18/07 (current) edition and the 11/01/06 (previous) edition of the I-864. The text I quoted is the beginning of the first paragraph on page 7. I suggest you have another look.

You could still challenge it in a state court, but not on the basis that the right of the beneficiary to sue is not declared in the contract. It clearly is declared, but that doesn't necessarily make it legal. People have successfully defended themselves against a suit brought on by the beneficiary on the basis that the only third party that can enforce a contract is the government, and that in fact is the primary reason that civil courts exist. On the other hand, some sponsors have lost (Davis v Davis is an example), and the courts concluded that the sponsor granted the right of third party enforcement to the beneficiary because of that clause on page 7.

Ya rolls the dice and ya takes yer chances.

[Tech-MoLeidy 1]

Jim won....

Way to keep your cool guys.... good job

Edited April 1, 2010 by Tech-MoLeidy

[TOM&Riz 4]

Jim won....

Way to keep your cool guys.... good job

I OBJECT !! thanks Jim ...

[TOM&Riz 4]

Can my spouse withdraw their sponsorship since we are going through a divorce and I have a conditional green card? If so how and what forms will they have to file?

No you cannot revoke a valid I-864 can she sue ? apparently she can, will she win ? get a decent attorney will you have out of pocket expenses ? almost definitely ... isn't wedded bliss wonderful

[JimVaPhuong 4,863]

No you cannot revoke a valid I-864 can she sue ? apparently she can, will she win ? get a decent attorney will you have out of pocket expenses ? almost definitely ... isn't wedded bliss wonderful

Ah, there lies the rub!

Civil suits can be very expensive, especially when there is no clear precedent in each state court system. Most contracts specifically state that the laws of state XYZ will apply in any civil suit arising out of the contract, but this particular contract doesn't specify that, probably because it's a contract by and for the federal government. States don't have civil contract codes that apply to affidavits of support for immigration purposes, so it's anybody's guess how a particular state court is going to apply the state's law. The case can be drawn out, and involve multiple appeals. This translates into big $$$$$ for attorney and court costs.

Attorneys often work on a contingency - they are paid a portion of the settlement if they win. In this case, the beneficiary would be suing for support at 125% of the poverty guidelines for 1 person, or about $13,500 per year. Even if the attorney managed to get the entire first year's payments as his/her contingency fee, that would still work out to less than 100 hours of work for a typical attorney. The attorney is probably going to require that their fees be added to the award, which is typically what happens in these cases.

So, for an attorney to be willing to take a case like this they would probably:

1. Have a high degree of confidence they will win. This is difficult, if there's no precedent in the state's courts.

2. Insist that their fees be added to the award, rather than based on a percentage of the award.

3. Have a respondent (the sponsor who signed the I-864) with deep enough pockets to collect on #2. Assuming the respondent also thinks the plaintiff has a good chance of winning, and they have those deep pockets, they'll probably offer to settle rather than get hit with attorney costs that exceed what they're being asked to pay for support. That's why many of these cases end up in settlement rather than trial. Because they end up in settlement, we don't get many landmark precedent setting cases like Stump v Stump in the state courts.