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So you’ve determined that you qualify for immigration financial support. You’ve politely asked your I-864 sponsor to provide the support, and he’s politely (or not so politely) said no. Now what? How can you make and I-864 sponsor provide financial support if you’re entitled? Where do you file a lawsuit based on the I-864, Affidavit of Support?
Here’s the short answer: potentially in either a state or a federal court; if you’re in the middle of a divorce, you might be able to enforce your rights in that court, but that’s less certain. The I-864 statute (8 U.S.C. § 1183a(e)(I)) provides that,
[a]n action to enforce an affidavit of support… may be brought against the sponsor in any appropriate court… by a sponsored alien, with respect to financial support.
Okay… but what counts as an “appropriate” court for a beneficiary who needs support? Let’s take a closer look.
Divorce court
Very often the person interested in seeking I-864 support is in the process of getting divorced from her immigration sponsor. So it makes sense for the beneficiary to ask, can I use the divorce court to enforce my I-864 rights? The short answer is maybe.
In divorce courts a judge has the power to order alimony, also called “spousal maintenance” (I’ll use the term alimony to keep things simple). Every state has it’s own law about what factors the judge should consider in making an alimony award. Typically these will include considerations like the length of the marriage and the ability of an individual to support herself. Well, can the judge use the I-864 to order the sponsor to pay alimony? Is that something she may consider?
Several courts have considered this issue, and they don’t all agree. In Pennsylvania, for example – in the Love v. Love case – the court said it should apply the I-864 when setting alimony. The appeals court basically said that the Affidavit of Support was a reason to set higher-than-normal alimony.
But in both Michigan and Washington, courts have said that they will not order alimony based on the I-864. In the Washington case, where I represented the beneficiary, the appeals court said that alimony can’t be used to enforce a contract obligation, and that the I-864 is basically just a contract. Contracts, the court said, aren’t a reason to order higher-than-normal alimony.
So the bottom line is that you shouldn’t assume that alimony can be used to get I-864 support. But don’t worry, there are alternatives.
Federal court
Want to sue for I-864 support? Well, you could make a federal case out of it. Most federal courts have agreed that they have the authority to hear claims by I-864 beneficiaries against sponsors.
This is a little bit technical, but here are the details, if you want to know. To bring a lawsuit of any sort, the court has to have “subject matter” jurisdiction, and also “personal jurisdiction.” Personal jurisdiction is the authority to make a ruling that impacts a certain person. Subject matter jurisdiction is the authority to decide a particular type of lawsuit, such as a type of criminal case or a type of financial case. Pretty much every federal court that has looked at these issues has agreed that it has both types of jurisdiction in I-864 lawsuits, but there are some exceptions.
In terms of subject matter jurisdiction, most federal courts haven’t even seriously questioned whether they can decide I-864 lawsuits. There is both a federal statute and federal regulation that seem to give an I-864 beneficiary the right to sue her sponsor. Federal courts have the authority to decide any case involving a question of federal law. So most courts seem to take note of the statute and easily conclude they have subject matter jurisdiction over I-864 lawsuits.
The one exception to this has been a single federal court in the Middle District of Florida. (The federal court system is made up of lots of districts. Even though they’re all part of the same system, they’re not required to agree with other district court decisions.) That court views I-864 cases as just contract lawsuits. Under federal law, a federal court doesn’t have subject matter jurisdiction in a contract lawsuit unless the parties are in different states. Congress is supposed to be very clear when it creates a right to bring a federal lawsuit, and this District Court says that congress wasn’t clear enough in the I-864 statute.
But the Middle District of Florida is definitely the exception. Most federal courts agree that they do have authority to decide I-864 lawsuits. Also, if the sponsor and beneficiary are in separate states then the beneficiary can bring a federal on that basis (called diversity).
So what about personal jurisdiction (authority over the person)? This issue is easier. When a sponsor signs the I-864 he agrees to submit to the personal jurisdiction of any competent court. This sort of term is very common in contracts of all sorts. Chances are that last time you bought something that cost more than $100 you signed an agreement that specified what court would have jurisdiction over you. These terms are called “waivers” of personal jurisdiction. Basically saying, “you might not normally be able to sue me in that court, but I’ll agree to be sued there if we have a dispute.” A very common type of contract clause.
Since waivers of jurisdiction are common, and the contract language in the I-864 is very clear, federal courts usually agree they have personal jurisdiction over sponsors. The most notable exception to approach is a Federal District Court in Utah. That court said that since the sponsor hadn’t had enough contact with Utah he couldn’t be sued there. The court’s decision is hard to understand, and other courts have not taken the same approach.
So the bottom line is that you can usually bring a law suit in federal court for I-864 support.
State court
What if you’re not in divorce proceedings – or even if you are? Can you use the state court system to enforce your I-864 rights? Often yes. Remember what we were saying above about the I-864 being a type of contract? Well, a state court of “general jurisdiction” has the authority to decide contract lawsuits. In fact, often these courts are the only place to enforce contracts.
But isn’t the I-864 a “federal law” issue? I hear that a lot from lawyers, who frankly should know better. First of all, state courts decide federal law issues all the time. Civil rights lawsuits, for example, are governed by federal law, and you can bring these in state courts. Judges in state courts need to consult federal law all the time, so it really makes no sense at all to say that I-864 cases don’t belong in state court.
In most states there are more than one court capable of handling I-864 claims, one of these will be limited in the maximum dollar value of lawsuits. A typical I-864 lawsuit – though not all – can be brought in either, since the dollar value will typically be under the maximum value of the lower state court.
Small claims court
Way down here at the bottom is an option that folks really don’t seem to consider often. Why not just take your I-864 sponsor to small claims court. Here are some positives: (1) it’s very inexpensive; (2) it’s typically much faster than any other court; and (3) it’s relatively informal and doesn’t have all of the complex procedures of other courts.
On the other hand, there are drawbacks. I can pretty much guarantee that the small claims judge has never seen an I-864 before. This means you’ll be explaining all of the law to the judge for the first time. On a related note, you typically can’t have a lawyer in small claims court, so you won’t be getting any help. And if the case is unsuccessful you could be prevented from bringing another suit in a higher court.
Still, in some circumstances you’re not going to be able to get support from your sponsor without a lawsuit. If you simply can’t find an attorney it may be worth giving small claims court a try. (There is, of course – hint, hint – one law firm that is happy to talk to you about your potential claim.).
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