Motion to Dismiss denied in Federal I-864 litigation

ID-100108265 In Du v. McCarthy, a Federal District Court in the Northern District of West Virginia has refused to dismiss a lawsuit brought against an I-864 sponsor. No. 2:14-cv-100 (N.D. W. Va. Mar. 26, 2015) (report and recommendations). [The magistrate's recommendations were upheld by order of a district court judge issued April 16, 2015]. The case raises at least one completely new issue, as discussed below.


The parties were married in 2012 and divorced in 2014. Following marriage, the U.S. citizen husband executed a Form I-864 for his wife. In the divorce action, the husband was ordered to pay a small amount of temporary spousal support. But the divorce court specifically stated that the spousal support order was not based on the Form I-864, since those rights had not be pleaded.


The defendant brought a motion to dismiss, asserting several arguments.

First, he argued that his wife could not bring the I-864 claim because she failed to raise it in the divorce case. In Yaguil v. Lee, a different federal court had dismissed a claim by an I-864 beneficiary since the claims had been raised in a preceding divorce case. No. 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D. Cal. April 10, 2014). But in the Du case, the claims were never litigated in the divorce court.

 Accordingly, the issue of support under the Form I-864 was never raised in the parties' divorce proceedings; therefore, there was never a final judgment on the merits of Plaintiff's claim.

This conclusion is consistent with the reasoning of other courts: if the I-864 is not raised in the divorce proceeding, the beneficiary may bring a separate lawsuit. In fact, even if she does attempt to assert a claim in the family law court, she may still have a right to bring a separate lawsuit, since the family law court may decide not to rule on the claim.

The defendant's second argument was that the beneficiary was filing a petition under the Violence Against Women Act (VAWA).  A "self-petitioner" under VAWA files an I-360 petition for herself, as well as a Form I-864W to demonstrate that for such a petition she is not entitled to file a Form I-864. The defendant appears to have argued that if the plaintiff secured residence based on a Form I-360 petition, she would no longer be entitled to support under the I-864 that the defendant signed.

I'm not sure that's right. In this case, the court didn't have to decide the issue, because the defendant didn't prove that the I-360 had actually been approved. But let's look at the issue.

There are only five events that end a sponsor's obligations. The beneficiary:

  1. becomes a U.S. citizen;
  2. can be credited with 40 quarters of work;
  3. is no longer a permanent resident and has departed the U.S.;
  4. after being ordered removed seeks permanent residency based on a different I-864; or
  5. dies.

So let's say you have a sponsor who petitions for his wife. She gets 2-year conditional residency (it's a new marriage) and they get divorced before jointly petitioning for her 10-year (renewable) green card. First of all, in most cases the strategy will be to file an I-751 waiver application. Both the I-360 and the I-751 (at least on one strategy to secure approval) require the beneficiary to demonstrate abuse. But let's just assume she is first a conditional resident, then secures an approved I-360 uses that as a strategy for long term residence.

Was any of the five terminating conditions met? I don't see how. Condition (3) is met only if she departs the U.S. after losing status (which happens by operation of law at the end of the 2-year residency period). Condition (4) is met only if there's an order of removal and a new I-864... but in this hypothetical there is neither. I think that even if the I-864 beneficiary had (for whatever reason) received approval on the VAWA self-petition she would still be eligible to receive support.