In most cases, a
U.S. citizen seeking to “sponsor” a foreign relative must file an affidavit of
support on USCIS form I-864. A court in California recently held that a foreign
spouse may enforce the affidavit of support in a divorce proceeding.
Vikash Kumar is a
United States citizen. Ashlyne Kumar is a citizen of Fiji. On September 22,
2012, Vikash and Ashlyne married in Fiji in an arranged marriage.
Vikash filed A
visa petition for alien relative on behalf of Ashlyne. In connection with
bringing his new wife to the United States, Vikash signed a form I-864
affidavit of support. The purpose of the I-864 affidavit is “to ensure that an
immigrant does not become a public charge.”
the United States in July 2013. According to Ashlyne, Vikash began abusing her
In December 2013,
Vikash and his family tricked Ashlyne into going to Fiji with Vikash. After
they arrived in Fiji, Vikash abandoned her. It got worse. Ashlyne also
discovered that the page with her legal permanent resident stamp had been torn
out of her passport.
temporary travel documents from the United States Embassy in Fiji, and returned
to the United States on December 29, 2013. On January 14, 2014, Vikash filed a
petition for annulment and, in the alternative, dissolution of marriage. On
September 3, 2014, Vikash filed a request for an order terminating spousal
support and dissolving the marriage.
Vikash’s request to terminate spousal support. In her brief, Ashlyne asked the court to enforce the specific support
requirements of the I-864 affidavit, requesting an order that Vikash pay
support of $1,196.15 per month.
The trial court
entered a judgment restoring the parties to single status and terminating
spousal support. Ashlyne appealed, and the appellate court reversed.
An I-864 affidavit
is a legally enforceable contract between the sponsor and the sponsored
immigrant. Shumye v. Felleke, 555 F. Supp.
2d 1020, 1023 (N.D. Cal. 2008). Federal courts have consistently found that a form
I-864 constitutes a legally binding and enforceable contract between sponsor
and a sponsored immigrant. (Id. at
obligations under an I-864 affidavit terminates only if one of five conditions
is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the
sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant
permanently departs the U.S., or (5) the sponsored immigrant is credited with 40
qualifying quarters of work. (See 8 U.S.C. § 1183a(a)(2).) Divorce is not a
condition under which the sponsor’s obligations under Form I-864 can be
terminated. (Shumye at 1024.)
According to the
appeals court, the statute and regulation are clear. A sponsored immigrant has
independent standing to enforce the obligations of an I-864 affidavit against
her sponsor, and may bring such an enforcement claim in state or federal court.
counsel asked whether her contract claim under the I-864 affidavit was being
denied, the trial court responded, “Yes, I’m denying your request because I
find the respondent is not using best efforts to find work.”
On appeal, Ashlyne
urged the court to follow the Seventh Circuit Court of Appeals, which held that
a sponsored immigrant seeking to enforce the support obligation created by an I-864
affidavit has no duty to mitigate damages. (Liu
v. Mund, 686 F.3d 418, 420, 422-123 (7th Cir. 2012.)
Circuit reasoned that the stated statutory goal is to prevent the admission to
the United States of any alien who ‘is likely at any time to become a public
charge.’ The only beneficiary of the
duty to mitigate would be the sponsor—and it is not for his benefit that the
duty of support was imposed; it was imposed for the benefit of federal and
state taxpayers and of the donors to organizations that provide charity for the
court found Liu persuasive, and held
that an immigrant spouse seeking to enforce the support obligation of an I-864
affidavit has no duty to seek employment to mitigate damages.
The case is In re: Marriage of Ashlyne and Vikash Kumar,
220 Cal. Rptr.3d 863 (Cal. Ct. App., 2017).
· Michael R. Lied· Howard & Howard Attorneys PLLC· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602· (309) 999-6311· MLied@howardandhoward.com