Termination of support

Death of the I-864 sponsor terminates obligation.

In a published New Jersey case, an appeals court followed the plain language of the Form I-864 to hold that support obligations end upon the death of a sponsor. Fox v. Lincoln Financial Group was primarily a state law case about whether marriage should automatically cause one spouse, by operation of law, to become the beneficiary of the other’s life insurance policy.[1] When a U.S. citizen spouse died, his foreign national spouse sued the life insurance company, and argued that the Affidavit of Support offered a justification for recovering against the policy. The trial and appeals courts rejected that contention, citing the plain language of the Form I-864, stating that the obligation ends upon the death of the sponsor.[2]

It is important to distinguish, however, between termination of the sponsor’s obligation and the viability of claims accrued up to the date of termination. If a sponsor has failed to provide support for a period of one year, for example, and then dies, his estate will remain liable for support arrears up to the date of his death. While the estate is not liable for future support – since the obligation has terminated – the beneficiary does not lose the ability to assert claims that accrued prior to the sponsor’s death.

Under the plain language of the Form I-864, the sponsor’s obligations commence when the beneficiary gains lawful permanent residency based on the sponsor’s affidavit. Of course, if the Affidavit is signed but never filed, then the sponsor never becomes obligated under the contract.[3]

[1] 109 A.3d 221 (2015).

[2] Id. at 223, 227-28.

[3] F.B. v. M.M.R., 120 A.3d 1062 (Pa. Super. 2015).

Does an I-751 waiver end I-864 support?

In a poorly guided decision, a federal district court for New Jersey held that I-864 obligations terminate once a foreign national has prevailed in an I-751 waiver petition. In Shah v. Shah, a pro se foreign national prevailed at a jury trial, demonstrating that her sponsor had failed to fulfill his obligation under the Form I-864.[1] The jury, however, appeared to calculate damages based on a cutoff date of when the foreign national won approval of her I-751 petition, which was filed as a waiver without the sponsor’s assistance. The plaintiff, pro se, moved for a new trial, arguing that the I-751 approval did not terminate the sponsor’s obligations. Without further explanation, the Court stated:

After Plaintiff received a one-year extension from USCIS, her status was set to expire on May 25, 2014. But upon Plaintiff's petition, USCIS adjusted Plaintiff's immigration status to that of lawful permanent resident on December 13, 2013. Because Plaintiff's status adjustment was not based upon Defendant's Form I-864, her status adjustment terminated Defendant's obligation to support Plaintiff.[2]

These statements are poorly guided – likely in the literal sense that the litigants gave the Court little sound research on which to base its ruling.

The error is this: an I-751 petition is not an application for “status adjustment.” An I-751 petition, of course, is exactly what it says on its face – a petition to remove the conditions placed on an individual who is already a lawful permanent resident (LPR). That is a distinction with a difference.

Under the plain language of federal regulations conditional residents are LPRs.[3] Unless otherwise specified by law, a conditional resident possesses all “rights, privileges, responsibilities and duties which apply to all other lawful permanent residents.”[4] As the USCIS Policy Manual states in its introductory sentence to conditional residency, conditional residents have “been admitted to the United States as LPRs on a conditional basis for a period of two years.”[5]  For a foreign national filing an I-751 petition, LPR status is hers to lose, not to gain.[6]

In other words, once a foreign national has acquired conditional LPR status based on an I-864 filed by her sponsor (or a joint sponsor), she has already acquired LPR status, period. All that is left is to remove the conditions placed on her LPR status, but there is no “other” permanent residency status to which she could “adjust.” When a conditional resident gets an I-751 approved – whether via a joint petition or waiver – she is not transitioning into a new residency status. The pro se plaintiff in Shah was an LPR from the day she first received conditional LPR status, and she maintained that same LPR status through the I-751 petition process. Shah was wrongly decided and will hopefully not mislead other courts.

[1] No. 12-4648 (RBK/KMW) (N. N.J., Oct. 30, 2015).

[2] Id. (emphasis added, internal citation omitted).

[3] 8 C.F.R. § 216.1 (“A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act. . .”).

[4] Id.

[5] USCIS Policy Manual Vol. 12, Part G, Chapter 5(A), available at http://1.usa.gov/1IArtlI (last visited Dec. 28, 2015) (emphasis added). See also 8 CFR § 235.11(c) (The lawful permanent resident alien status of a conditional resident automatically terminates if the conditional basis of such status is not removed by the Service through approval of a Form I-751, Petition to Remove the Conditions on Residence. . .”) (emphasis added).

[6] A conditional resident maintains status as an LPR unless: (1) she fails to timely file her petition for unconditional status; (2) such a petition is denied; or (3) her status is affirmatively terminated by the government. 8 USC §§ 1186a(c)(2)(A) (lack of timely petition), 1186a(c)(3)(C) (petition denied), 1186a(b)(1) (affirmative termination).

What is 40 "work quarters" for purpose of the I-864?

The sponsor’s obligation under the I-864 terminates when the beneficiary acquires 40 quarters of work under the Social Security Act.[1] But whose work quarters count towards that threshold? In the California case of Gross v. Gross, a pro se plaintiff argued that her husband’s quarters of work did not count towards the 40 quarters.[2] Following the plain text of the Form I-864 and underlying statute, the Court disagreed. The statute specifically provides that in counting quarters of work, the beneficiary shall be credited with “all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased.”[3]

The Form I-864 itself, official instructions, and statute all refer to work quarters with which the beneficiary may be “credited” rather than those she has earned.[4] As the Gross Court concludes, it is clear that a beneficiary can be credited with work quarters earned by her spouse. Note, however, that this does not necessarily resolve the issue of whether quarters can be double-stacked. If both the beneficiary and sponsor are working, it is not obvious that two work quarters should be simultaneously counted towards the 40-quarter threshold.[5]

[1] Clients and even immigration attorneys sometimes believe that I-864 obligations end after 10 years. That is incorrect. The obligations are terminated after the beneficiary may be credited with 40 quarters of work under the Social Security Act. That threshold could be met in ten years, but not necessarily.

[2] E060475 (Cal. App., 4th Dist., 2nd Div. Aug. 6, 2015).

[3] Id. (citing INA § 213A(a)(3)(A)).

[4] See id.

[5] Cf. Davis v. Davis, No. WD-11-006 (Ohio Ct. App. May 11, 2012) (Singer, J. dissenting) (arguing that double-stacking should not be applied).