Is Marriage Fraud, VAWA Fraud, or any type of Fraud, a Defense to Enforcement of the I-864 Affidavit of Support?

I. The Parties to the Contract

The I-864, Affidavit of Support, is a contract between the sponsor and the federal government. 8 CFR § 213a.2(d).  

It is basic contract law that only the actions of a party to the contract can terminate a contract or create a defense to enforcement. The intending immigrant who enters the US as a lawful permanent resident (LPR) is not a party to the contract. The intending immigrant is a third-party beneficiary. The actions of the third-party beneficiary - including fraud - will not terminate the contract. There are exceptions to this general rule. The exceptions are covered in the 5 events that terminate the contract and are discussed below.  There are defenses or affirmitive defenses to enforcement of the contract that do not terminate contract but may eliminate the sponsors obligation either completely or partially. Some of these defenses may result in attorney fees, penalties and fines to be paid by the third-party beneficiary and his or her attorney to te defendant.

Fraud of any kind including marriage fraud, visa fraud, VAWA fraud, tax evasion, and other crimes commited by the third-party beneficiary may result in terminating event number 4 (see below). However, until that terminating event occurs the obligation to support the immigrant remains.

II. Congressional intent in the implementation of the I-864

Congress implemented the  8 CFR § 213a  to protect the American taxpayer from having to support  a third-party-beneficiary who was admitted into the US as a lawful permanent resident based on a signed I-864 Affidavit of Support from a qualified sponsor.  The terms of the contract are that the sponsor will support the third-party beneficiary until one of the 5 terminating events occurs. The 5 terminating events are:

1. The sponsored immigrant’s becomes a naturalized US citizen,

2. The sponsored immigrant’s earns or can be credited with  40 qualifying quarters, as defined by Social Security Act,

3. The sponsored immigrants is deceased,

4. The sponsored immigrant’s  LPR status is revoked or abandoned AND s/he permanently departs the United States,

5. The sponsored immigrant files a new application to adjust status with a new sponsor who signs an I-864 of his or her behalf and the new application and I-864 are approved by the USCIS .

Congressional intent in the implementation of the I-864 is relevant in the consideration of whether fraud on the part of the third-party benficiary terminates the sponsors responsibility under the I-864. The intent of congress in implementing the I-864 was to protect the US taxpayer from having to support a third-party beneficiary that a sponsor brought into the US by choice and agreed to support. The third-party beneficiaries support must come from the sponsor and not from taxpayer funded benefits.

The third-party beneficiary is entitled to support in the amount of 125% of the federal poverty guideline as established by the Social Security Administration on a annual basis. The source of the support received by the third-party beneficiary may come from many sources in addition to the support from the sponsor. The immigrant may receive income, assets, and receive support, from a number of sources. All support received by the third-party beneficiary are deducted from the sponsors obligation to support the third-party beneficiary.

Clearly the intent of congress in implementing the I-864 contract is to advise the sponsor; You alone are responsible for the result of your choice to sponsor a third-party beneficiary. The third-party beneficiary is also put on notice that; You are entitled to mimimum support from all sources.

Congress has as a secondary intent to encourage immigrants to become self sufficient.

Fraud on the part of the third-party beneficiary does not terminate the responsibility of the sponsor. If fraud terminated the contract,  the American taxpayer would be on the hook to support the immigrant. This conclusion is clearly contrary to the intent of congress.

III. Revocation of LPR Status and Deportation as a result of Fraud Terminates the Contract.

The foregoing being said; Marriage Fraud, VAWA fraud, or any type of fraud, may be a deportable offense. It is common that tax evasion goes hand-in-hand with a third-party beneficiaries fraud. The immigrant who commits fraud or tax evasion may be charged criminally and placed in removal proceedings and deported. Mulder Law will expose any fraud or tax evasion.

When the third-party beneficiary has his or her status revoked by an immigration judge, AND he or she is deported and actually leaves the US, the I-864 contract terminates. Revocation of status alone does not terminate the obligation to support the third-party beneficiary. The third-party beneficiary must be permanently deported and have left the US..

The foregoing discussion can be disheartening. Do not loose hope. The federal statute is clarified by case law. Case law establishes that the third-party beneficiary is not entitled to a windfall sum of support.

Mulder Law’s experience is that lawsuits filed based on the I-864 are typically brought by a third-party beneficiary who is looking for a free ride. A majority of the lawsuits are brought by third-party beneficiarys after a marriage that lasted just long enough for the thrid-party beneficiary to receive permanent LPR status. Many times there is a preconceived plan to marry just long enough to become an LPR and then to sue his or her sponsor. This is marriage fraud. A third-party beneficiary may set up his or her sponsor to make it look like there is abuse and file a fraudulent VAWA claim. Mulder Law will assist the sponsor in proving the fraud and exposing the third-party beneficiary.

Kyndra L Mulder, Esquire, has 38 years experience. She knows that a person who commits fraud in one area is likely commiting fraud in other areas. Mulder Law will find the fraud and dishonesty and expose it.

IV Unclean Hands

The doctrine of unclean hands is an affirmative defense in the enforcement of a contract in general contract law. However, the general affirmative defenses that apply to most contracts do not apply to the I-864 Contract. That being said; A showing of unclean hands will discredit the plaintiff and the court may give the defendant the benefit of the doubt when making a decision.

Secondly, some state courts, like the California Superior Court and Federal Courts, may award sanctions in the form of attorney fees, fines, or punitive damages, to a defendant who has shown unclean hands on the part of a plaintiff or the plaintiff’s attorney. 

When an attorney represents a third-party beneficiary in what s/he knows to be a frivolous lawsuit, the court may award sanctions to the defendant  to be paid by plaintiff’s attorney. An attorney has a duty to investigate a claim made by a third-party beneficiary before s/he files a lawsuit on behalf of that third-party beneficiary. An attorney’s failure to do his or her due diligence BEFORE filing the lawsuit may result in sanctions to be paid by plaintiff’s attorney to the defendant.

Mulder Law

To date Mulder Law has been 100% successful in defending Americans who are being sued by the third-party beneficiary based on the I-864 that s/he signed. By successful we mean that no client of ours has ever had to pay a third=party beneficiary a dime. 

Kyndra L Mulder, Esquire, has 38 years of experience. She will first consult with you and thoroughly conduct an inquiry into the situation to determine your defenses or offset.  We will discuss the possible outcomes and your alternatives.