I-864 Enforcement in Blue States vs. Red States

I-864 Enforcement in Blue States vs. Red States: Same Federal Law, Very Different Results. The Affidavit of Support is federal law, found at 8 U.S.C. § 1183a. Yet where an I-864 case is litigated can shape how it plays out, because states differ on how freely they provide public benefits to lawful permanent residents (LPRs).

Congressional Intent

Congress created the I-864 to keep American taxpayers from becoming financial supporters of new immigrants through means-tested public benefits. The sponsor promises to maintain the immigrant at 125 percent of the Federal Poverty Guideline (FPG).That benchmark is intentionally low.

There are very few places in America where a person can comfortably live on 125 percent of the FPG. Congress set it there because it had a second priority: encouraging immigrants to become self-sufficient and independent. The statute sets a floor, not a lifestyle.

Who Can Enforce the Affidavit

The statute works in two directions. The sponsored immigrant has standing to sue the sponsor to enforce the contract. The government, or any agency that provides means-tested public benefits, also has standing to sue the sponsor to recover what it paid. Government reimbursement suits are exceedingly rare. If an agency did sue, its recovery would be capped at support up to 125 percent of the FPG. That cap matters, because some states provide benefits to LPRs far above that level. California and New York, for example, offer taxpayer-funded benefits that can reach several times the poverty guideline. Everything above 125 percent is not collectible from the sponsor. The taxpayer absorbs it.

State Policy Undercuts the Statute when a state provides generous benefits to LPRs, it works against the purpose of the statute. Benefits that exceed 125 percent of the FPG reduce the immigrant’s incentive to become self-sufficient, which is the opposite of what Congress intended. It also creates opportunities for abuse of the system that is meant to be temporary assistance to people in need and unable to meet their need. which brings us to a pattern we see repeatedly at Mulder Law.

A Pattern We See in Practice In a number of our cases, the LPR is collecting means-tested benefits while suing the sponsor for back support, claiming she has received none. The benefits she has already received are the very support she says she never got. At the same time, she may be working under the table, so her real income never appears on paper; living with a partner she is not married to, who shares the household and contributes to her lifestyle, but who is kept off the application so that reported household income stays below the poverty guideline; and suing her sponsor as though she had no other source of support. At Mulder Law we have seen LPR’s who conceal the fact that they don’t even live in the United States. It is very common for an LPR to live in Canada and clam they live in the United States in order to collect benefits from the taxpayer and sue their sponsor for support. Put together, the picture is an immigrant with unreported cash income, public benefits, a live-in partner’s contributions, and who may nt even live in the United States, who nonetheless asks a court to order the sponsor to make up the shortfall.

Courts rely on honest disclosure to measure what support is actually owed. That is why discovery into the immigrant’s real income, household composition, and benefits history is central to defending these cases.

Forum Shopping:

The statute allows an I-864 breach of contract action to be brought in any appropriate court. Because states treat means-tested benefits so differently, that flexibility invites forum shopping. A savvy plaintiff may prefer to file in New York rather than Florida, where the surrounding benefits environment is far more generous and where the immigrant’s overall financial picture looks very different.

For defense counsel, the choice of forum is a strategic issue from day one. Jurisdiction, venue, and the possibility of transfer deserve early attention.

Plantiff’s attorney may also have incentive to forum shop. Where the I-864 litigtion cand and should be brought in family court pursuant to a divorce, the attorney may seek to prevent the case from being heard in family court. This is because in most states attorneys cannot receive a contingency fee in famiy court but they can in federal court. Fees are generally the Plaintiff’s attorney’s motivation.

Culture, Background, and Expectations

An immigrant’s country of origin also shapes the decision to seek public assistance. In some countries, particularly those with socialist or communist systems, people are raised to believe the state is responsible for meeting their basic needs. An LPR with that background may see public benefits as an entitlement rather than a last resort. That does not the LPR a bad or dishonest person. It may simply be what she was taught. The same worldview can explain a mindset that seems contradictory to American observers: income earned in the free market is “my money” to spend as I wish, while the government’s job is to cover the basics.

Add the expectations some immigrants bring about marriage, such as the belief that a man who fathers a child with a woman owes her lifelong support, and the gap between expectation and American law becomes clear. In America, post-divorce support under state law is limited. A sponsor is expected to support his child, but state law does not make him the lifelong provider of his former spouse.

The Red State Approach

In a state like Florida, it is extremely difficult, and often impossible, for an LPR to qualify for means-tested benefits. Taxpayer funds are far more protected, and the policy carries its own incentive: become a United States citizen. Citizenship is the path Congress envisioned. Once naturalized, the immigrant can apply for the full range of means-tested benefits and can work toward earning Social Security benefits in her own right. Restricting benefits to LPRs pushes the immigrant toward independence and full membership in the country, rather than long-term reliance on public assistance. To become a Naturalized citizen requires the LPR to seak and understand basic and to be able to take part in a conversating - in English - with an adjudicating officer of the USCIS. It was the congressional intent that the immigrant become a productive part of society. The path available is clear; intending immigrant, LPR, Naturalized USC.

Why This Matters for Sponsors and Practitioners

For sponsors, the forum matters. The same obligation can look very different depending on the benefits environment, the evidence of the immigrant’s actual income, and the credibility of the claim. For attorneys, knowing the state’s benefit rules, the plaintiff’s likely forum choices, and the full picture of the immigrant’s finances is part of building an I-864 case, on either side.

Conclusion

The federal statute is the same for everyone, everywhere. How it plays out in practice can depend on the politics of the State where the lawsuit is filed, including how that State treats means-tested benefits for LPRs.

Culture matters too. The gap between the LPR’s country of origin and the United States shapes her expectations about the role of government, about income, and about what a former spouse owes.

Once an I-864 case is in litigation, it is no longer an immigration question. It is a breach of contract case, and the immigrant’s background and worldview bear on motive, credibility, and how she presents her claim. Defending an I-864 case takes more than knowing the statute. It takes understanding who is on the other side and where she is coming from.

Kyndra L. Mulder, Esquire, studied culture in college, wrote her thesis on cultural integration in Hawaii after World War II, and spent six years living in a former Soviet country. That background informs how Mulder Law approaches these cases: you defend better when you understand your opponent’s motives.