Specific performance for I-864 obligation - Santana v. Hatch


In a December 13, 2016 order, an I-864 enforcement case in federal district court for the Western District of Wisconsin has been resolved. See Santana v. Hatch, No. 15-cv-89-wmc (W.D. Wisc. Dec. 13. 2016) (memo. op.). Following an April order granting partial summary judgment to the immigrant-plaintiff, the only remaining issues were a damages calculation and specific performance of the I-864 duty. "Specific performance" is an order from a court requiring a party to continue a performance required by a contract - here, to make payments required to keep the I-864 beneficiary at 125% of the Federal Poverty Guidelines. The damages calculation was resolved on an agreed calculation, so the only issue addressed in the December 13th order is that of specific performance. It is common for plaintiffs in I-864 enforcement cases to request both a damages award and also an order of specific performance. But there is a challenge in terms of the logistics required for such an order. The payments due by the I-864 sponsor require an understanding of how much (if any) income the I-864 beneficiary is earning. The sponsor also needs to know if the beneficiary becomes a United States citizen or has been credited with 40 quarters of work.

At Immigration Support Advocates, we typically structure settlements in a way that requires monthly payments by the sponsor. Generally, our clients have little or no income, and depend on the monthly support payments to meet basic needs. In prior cases we have agreed to provide monthly accountings to the sponsor, showing what public benefits were being received and what income had been earned for the month.

In Santana v. Hatch both parties agreed to work our support payments on an annual basis. That is, only one annual payment would be required by the I-864 sponsor, after the beneficiary accounted for earned income.  The plaintiff-beneficiary wanted an order that would direct earlier payment if her income fell under 125% FPG for three months. But the Court said that the beneficiary failed to show why this was appropriate:

Under the circumstances, the court concludes that an order of specific performance on a yearly basis is appropriate. Plaintiffs have shown the determination and ability to earn income, as well as support themselves, despite defendant's obligations to provide minimal support. Currently, Evelyn Santana has a steady job that provides income sufficient to keep her and her family above 125% of the poverty level. [. . .] Thus, at least as of now, there appears to be no justification for requiring defendant to make specific performance on a monthly or bi-weekly basis. On the contrary, as defendant points out, such a requirement could lead to an overpayment to plaintiffs.

In Santana, the plaintiff did not even seek monthly support payments. We believe that in many cases it would be easy to demonstrate that such a payment schedule would be appropriate. A plaintiff who needs ongoing I-864 support by definition has no other income. It would be absurd to make such an individual wait until the end of the year for support that she needs to meet monthly survival needs.

Given that the plaintiff in Santana did not seek monthly support payments, and made no attempt to show why they would be appropriate, we do not believe this case will be injurious to future plaintiffs who do seek orders of specific performance for monthly support payments.

Divorce and the Form I-864, Affidavit of Support


If you are a greencard holder, what are your rights in the case of divorce? Can you use the Form I-864, Affidavit of Support to recover support from your spouse? That depends on the details of your case.

What is the Form I-864?

The Form I-864 is signed by the US citizen/resident during the immigration process. By signing the Form I-864 the sponsor promises to provide support to the immigrant. He promises to ensure that the immigrant has income equal to at least 125% of the Federal Poverty Guidelines.

The support obligation lasts potentially forever. It stops if the immigrant is credited with 40 "quarters of work." In some situations it also ends if the immigrant departs the United States. But divorce does not end the I-864 support obligation.

The Form I-864 and divorce.

If the immigrant divorces her US husband, she may be entitled to support under the Form I-864. In fact, she may be able to get I-864 support even if she cannot get alimony.

To qualify for support, the immigrant would need to be earning less that 125% of the Federal Poverty Guidelines. For a household of one that is $1,238 per month. If the immigrant is earning that much or more, then the sponsor is not required to provide support. But if the immigrant is unemployed, or earning less than $1,238, then the sponsor is required to make up the difference.

Can I bring up the I-864 in divorce court?

If you believe you are entitled to support under the I-864, what do you do? Unfortunately the answer is complicated and varies from state to state. (The easy answer is ask us - we're happy to offer you a case assessment at no cost).

In some states, judges will consider the I-864 in a divorce case. The judge may be willing to enforce the I-864 and to award alimony based on the I-864.

But in other cases, divorce courts refuse to enforce the I-864. In those states, the courts believe that the I-864 should be enforced through a separate lawsuit. Those courts say that alimony laws cannot be used to enforce a federal contract like the the I-864.

Should you "play it safe" and raise the I-864 in divorce court? Not so fast. That could make it impossible for you to bring another lawsuit later, if a judge refuses to enforce the I-864. This is a legal principle called "issue preclusion" or "collateral estoppel." Under that rule, someone is not allowed to bring a second lawsuit to raise an issue decided in a previous lawsuit. So if a divorce judge rules against you on the I-864, that could prevent you from bringing another lawsuit to enforce the I-864.

Generally, a separate lawsuit should be brought to enforce the I-864. This lawsuit can be started even while a divorce case is continuing. In fact, it is usually best to bring the lawsuit as soon as possible. This prevents the defendant from arguing that the I-864 should have been raised in the divorce case.