laterally by a dominant party,” “presented
on a take it or leave it basis” and lacks any
“real opportunity to bargain about its
terms”—courts have refused to find it
unconscionable, because the sponsor is
viewed to have received a substantial benefit by signing it.
Ambiguity in drafting
What about contra proferentem, the doctrine of contractual interpretation providing that, where an agreement is ambiguous,
the preferred meaning should be the one
that works against the drafter? It is fair to
say that the I-864, when examined by itself
and without the benefit of additional
knowledge of the immigration statutes, is
confusingly vague and ambiguous in several respects.
For example, a sponsor could reasonably
believe that the I-864 is merely an agreement with the government to provide
reimbursement in the event the immigrant
becomes a public charge, rather than the
creation of a direct obligation between the
sponsor and the immigrant. Moreover, the
termination provisions of the I-864 are
rather weakly defined, and the sponsor is
not expressly informed that the obligation
could continue for decades, nor of the
potential scope of the obligation, which
could reach hundreds of thousands of
dollars. Notwithstanding the foregoing, the
contra proferentem argument also has been
rejected by the courts.
Parties have advanced other more attenuated arguments in search of relief from I-864
contractual obligations. These include doctrines related to duress, statutory construction, and impracticability/impossibility of
performance. Thus far, all have been unsuccessful.
Most people have probably never heard
about I-864 support issues, and they may
be surprised by the potential effects on
child support. Examination of the subject
fact pattern presents an opportunity to
ponder the policy collision issue, including
the respective rationales, and to think
about possible redress.
Children undoubtedly will be born to
marriages after immigrant spouses success-
fully relocate to the United States. The
I-864 rationale of avoiding public charge
potentially backfires when minor children
are involved and the sponsor has limited
income. A double financial burden is being
imposed on citizens like Diana, namely:
( 1) support of her former husband at 125
percent of the poverty level per month,
and ( 2) support of her two minor children.
In that case, the immigration policy ration-
ale of preventing the immigrant from
becoming a burden on public welfare is
not sensible. If Diana must effectively sup-
port everyone, it will ultimately leave her
with insufficient income to pay for the
necessities of life. She, the children and
Alex will all likely become long-term bur-
dens on public assistance—rendering
application of I-864 policy in this context
Proponents of I-864 may argue it is
typical for laws to be overly inclusive, and
that the purpose is well served in a far
greater number of other cases. But when
a family is already teetering on poverty’s
edge, the potential damage is substantial.
Modification of federal law to adjust the
burden of I-864 support where there are
children in common may be the answer.
That may not require a grand overhaul of
the I-864, or of its underlying policies, but
perhaps changes would: ( 1) empower the
enforcing courts to make equitable exceptions aimed at avoiding the impoverishment of children; or ( 2) institute a calculation system designed to minimize (or at
least more fairly distribute) the conflicting
support burdens so that a sponsor/parent
is not cast into carrying an overwhelming
financial burden, undoubtedly followed in
many instances by the children themselves
ultimately becoming long-term public
To support legislative changes, the
strong policy in favor of parental support
of their children should be emphasized.
In this country, we want our children to
receive proper support, notwithstanding
the nationality of their parents.
1. Immigration and Nationality Act, 8 U.S.C.A. § 1183a.
2. Love v. Love, 33 A.3d 1268, 1276-78 (Pa. Super. Ct. 2011); see also
Wenfang Liu v. Mund, 686 F.3d 418, 422-23 (7th Cir. 2012), as
amended (July 27, 2012) (The court concluded that there is no benefit
to imposing a duty to mitigate on a sponsored immigrant. Moreover,
there is no federal common law duty of mandatory job search, so the
courts would have to create one for I–864 cases, which is unlikely);
Younis v. Farooqi, 597 F. Supp. 2d 552, 557 n. 5 (D. Md. 2009) (The
court noted that in the event the wife is unable to or even is unwilling
to attain employment, that does not necessarily relieve the sponsor of
his I-864 liability, because these are not terminating conditions).
3. Naik v. Naik, 944 A.2d 713, 717 (N.J. Super. Ct. App. Div. 2008);
5. See In re Schwartz, 409 B.R. 240, 249 (B.A.P. 1st Cir. 2008) (holding
see also Villars v. Villars, 305 P.3d 321, 324 (Alaska 2013): “[A]lthough
finding that [the immigrant Wife] had satisfied any duty to mitigate that
may have existed by applying unsuccessfully for a number of jobs … she
had a responsibility to ‘continue seeking employment in earnest’ or risk
losing her ‘right to payments from [the I-864 sponsor Husband].’”
8 C.F.R. § 213a. 2(e)( 2)(i).
that because wife could have pursued her support claims under I-864
in the divorce proceedings, she is barred from pursuing those claims in
the husband’s bankruptcy case under the doctrine of res judicata).
6. See Greenleaf v. Greenleaf, 299131, 2011 WL 4503303 (Mich. Ct. App.
Sept. 29, 2011); Hrachova v. Cook, 509-CV-95-OC-GRJ, 2009 WL
3674851 (M.D. Fla. Nov. 3, 2009).
7. See Al-Mansour v. Shraim, Civ. No. CCB-10-1729, 2011 WL 345876,
2 (D. Md. Feb. 2, 2011); Steinhardt v. Rudolph, 422 So. 2d 884, 890
(Fla. Ct. App. 1982).
Public Policies Collide