The document summarizes the financial liability sponsors take on by signing Form I-864, the Affidavit of Support. It discusses (1) what the form is and the support duties it entails, including maintaining the immigrant's income at 125% of the poverty line and repaying public benefits used; (2) how much compensation immigrants can recover, such as 125% of the poverty line for periods of unemployment; and (3) how the affidavit can be enforced, either in federal or family law courts in Texas, with case law examples.

1. Financial Liability Under the Form I-
864, Affidavit of Support
Kate Lincoln-Goldfinch
Lincoln-Goldfinch Law
Greg McLawsen
Sound Immigration
State Bar of Texas
The Intersection of Immigrartion and Family Law
April 16, 2021

2. Anna walks into your office...

3. Overview
1. What is the Form I-864?
2. The support duty.
3. How much compensation
may the immigrant
recover?
4. The nuts and bolts of
enforcement.
5. Identifying those who
could benefit.
6. Helping your clients
understand their rights.

4. What is the Form I-864?

5. Grounds of inadmissibility

6. 1. Health-related
grounds.
2. Criminal grounds.
3. Security, etc.
grounds.
4. Immigration violators.
5. Public charge.
Many flavors of
inadmissibility

7. “In general. Any alien who, in
the opinion of the consular
officer at the time of
application for a visa, or in the
opinion of the Attorney
General at the time of
application for admission or
adjustment of status, is likely
at any time to become a public
charge is inadmissible.”
Public charge
inadmissibility

8. The I-864 is a risk-allocation device

9. Required in every marriage-based immigration case

10. Who is the
sponsor?
Always:
“Petitioning sponsor”
– the visa petitioner.
Sometimes:
“Joint sponsor” – if
visa petitioner has
inadequate income.

11. The contractually-binding
support duty.

12. First promise
Repay “means-tested
public benefits.”
~ Food Stamps.
~ Medicaid.
~ Supplemental Security
Income (SSI).
~ Not emergency
disaster aid (for
example).

13. Second promise
Maintain immigrant’s
income at 125% of
the poverty line.

14. $1,342/mo
Household size of one under 2021 guidelines

15. When does it end?
When the immigrant…
1. Becomes citizen.
2. Credited w/ 40-quarters of
work.
3. Abandons residency and
departs U.S.
4. Deported and gets new
sponsor.
5. Dies.
And no other event.

16. When does it end?
Neither separation nor
divorce terminates the
contract.
Cf. The contract itself.

17. Black letter law:
1. Contract between
sponsor and U.S.
government.
2. Immigrant has
standing to enforce.
3. Immigrant has right to
recover damages and
all fees/costs.

18. What can the claimant recover?

19. 125% poverty line for
period for which support
is owed, less earned
income.
Damages are easy
(in theory)

20. Example
11 months unemployed:
$1,342
x 11 months
$14,762

21. But what is
“income”?
“Income” means subject
to federal income tax
(8 CFR 213a.1),
but some courts take
equity-based view.

22. How to value future
claims.
What is the claimant’s
prospect for stable long-
term employment?

23. Enforcing the Affidavit of Support

24. Federal court
Federal question
jurisdiction per
8 USC 1183a(e)(1)
Except maybe M.D. Florida and Colorado

25. Federal court
But federal court is not
the only option. Cf. the
“presumption of
concurrency.”

26. Texas family law
court
Yes… but...

27. Varnes v. Varnes, No.
13-08-00448-CV
(Tex. App. Apr. 23,
2009)
● Immigrant did not adequately
plead her I-864 claim as BoK;
claim that sponsor “should
support” her per the I-864
wasn’t good enough.
● “Mother Hubbard” clause in
final decree would not
prevent immigrant from
maintaining I-864 claim.

28. In Matter of Kamali,
356 S.W.3d 544 (Tex.
App. 2011)
● Affirms enforceability of Form
I-864.
● Order limiting support
payments to 36 months
“arbitrarily” violated terms of
the Affidavit.

29. Yuryeva v. McManus,
No. 01-12-00988-CV
(Tex. App. Nov. 26,
2013) (unpublished)
● Immigrant waived right to
enforce I-864 (in this case) by
failing to raise it.
● Liability under the Form I-864
survives divorce (of course).
● Suggests that enforcement
action could still be brought.

30. Beringer v. Beringer,
No. 04-19-00097-CV
(Tex. App. Apr. 1,
2020)
● Pleading that asked for
“continued” support under
Affidavit was inadequate to
seek arrearages.
● Fee award was not required
because pleading didn’t
clearly “enforce” the Affidavit
(?) and instead sought
declaration of rights.

31. Take home:
● Party to divorce can enforce
the Affidavit there. Kamali.
● Better be careful about
pleading. Varnes, Beringer.
● TX courts should award full
scope of support. Kamali.
● If you don’t raise it, (maybe?)
the Affidavit can be raised
later. Yuryeva.

32. Questions?