Another court finds prenuptial agreements unenforceable

In Shah v. Shah a second federal district court has determined that an I-864 beneficiary may not waive her right to collect financial support under the I-864.  Civil No. 12–4648 (RBK/KMW), 2014 WL 185914 (D.N.J. Jan 14, 2014) (memo. op.). In Shah, the parties had signed a prenuptial agreement prior to executing the I-864.   The court held that the language of the prenuptial agreement by itself was inadequate to waive the sponsor’s support duty, as it failed to specifically purport to waive those rights.  The agreement stated, under a section entitled “Alimony,” that the immigrant-beneficiary:

waives, releases and relinquishes any and all rights whatsoever, whether arising by common or statutory law (present or future) of any jurisdiction to spousal alimony, maintenance, or other allowances incident to divorce or separation....

This conclusion is not surprising, since I-864 support is not "alimony" or "maintenance" in any straight-forward sense.

But the court went on to hold that—language aside—the parties lacked authority to waive the sponsor’s support duty.  First the court noted that the “immigration regulations” list the five circumstances that terminate support obligations, ant that “a prenuptial agreement or other waiver by the sponsored immigrant” does not terminate obligations under the regulations.  This argument is probably weak since an individual may waive even constitutional rights, let alone regulatory rights.  The fact that the regulations set forth terminating conditions does not necessarily entail that the parties cannot create other terminating conditions.

But the court went on to offer an interesting second argument in support of the non-waivability of support rights.  It noted that under the INA the “Government” may not accept an I-864 unless that I-864 is “legally enforceable against the sponsor by the sponsored alien.”  The language quoted is where the INA mandates creation of the document that became the I-864, which replaced the unenforceable I-134.  But the court reasons, ‘the I-864 could not have been unenforceable if the government accepted it, the government did accept it, therefore the form must be enforceable.’  The syllogism seems perhaps a bit formalistic.

The deeper question underlying that argument is whether the parties’ rights are fundamentally statutory or contractual in nature. As noted elsewhere, courts are often unclear how they justify reliance on the INA when examining parties rights under the I-864.   Some federal courts reject subject matter jurisdiction over I-864 disputes precisely because they are contractual in nature rather than posing a federal question.  If the parties' rights are contractual, and not statutory in nature, the Shah court's reasoning seems misplaced.  Following it's syllogism, another alternative is that the government just messed up: it accepted an I-864 that was actually unenforceable because the beneficiary had waived her rights, and if the government had known better it would have rejected the Affidavit.  Moreover, the I-864 form could be modified by the USCIS to include a clause on the form itself reciting that it trumps any prior written agreement.

With the Shah decision now issued -- and only two other cases on point -- an attorney taking the bean-counting approach to law must advise her clients that prenuptial agreements cannot waive I-864 rights.  Compare Erler v. Erler, Civ. No. 12–2793, 2013 WL 6139721, at *2 (N.D.Cal. Nov. 21, 2013) (prenuptial agreements can't waive I-864 support) with Blain v. Herrell, Civ. No. 10–72, 2010 WL 2900432, at *7–8 (D.Haw. July 21, 2010) (yes they can).