Trial Court Must Address Immigrant Spouse’s Promise to Support Claim

In re Marriage of Bychina, 2021 IL App (2d) 200303 (June 18, 2021), Elena, the Petitioner in this Illinois divorce case, had recently come to this country from Russia. On her immigration form, Boris, her husband, indicated a promise to support her if she came to this country. When Elena wanted to come into the United States, she had to prove she could support herself. Under section 213A of the Immigration and Nationality Act, Boris filled out the Department of Homeland Security United States Citizenship and Immigration Services Form I-864 (Affidavit of Support), which essentially said he would be financially responsible for her.

The reason for this contract between Boris and the U.S. government is to prevent immigrants from coming to this country and then requiring the government to financially support them. Boris promised with the execution of this form, that Elena would not need government assistance because he promised to pay for her as an immigrant to this country.

Then came the divorce and now of course he does not want to be financially responsible for her. When Elena filed for divorce, she included in her petition, a count for breach of a federal contract under which the husband had promised to support her. The trial court acknowledged that it could reach the merits of the breach of contract count but declined to do so and directed Elena to seek relief in federal court.

The couple first met in Russia

Immigration Services Form I-864

1183a. Requirements for sponsor’s affidavit of support

(a) Enforceability

(1) Terms of affidavit

No affidavit of support may be accepted by the Attorney General or by any consular officer to establish that an alien is not excludable as a public charge under section 1182(a)(4) of this title unless such affidavit is executed by a sponsor of the alien as a contract-

(A) in which the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable;

(B) that is legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State (or any political subdivision of such State), or by any other entity that provides any means-tested public benefit (as defined in subsection (e) 1), consistent with the provisions of this section; and

© in which the sponsor agrees to submit to the jurisdiction of any Federal or State court for the purpose of actions brought under subsection (b)(2).

(2) Period of enforceability

An affidavit of support shall be enforceable with respect to benefits provided for an alien before the date the alien is naturalized as a citizen of the United States, or, if earlier, the termination date provided under paragraph (3).

(3) Termination of period of enforceability upon completion of required period of employment, etc.

(A) In general

An affidavit of support is not enforceable after such time as the alien (i) has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act [42 U.S.C. 401 et seq.] or can be credited with such qualifying quarters as provided under subparagraph (B), and (ii) in the case of any such qualifying quarter creditable for any period beginning after December 31, 1996, did not receive any Federal means-tested public benefit (as provided under section 1613 of this title) during any such period.

(B) Qualifying quarters

For purposes of this section, in determining the number of qualifying quarters of coverage under title II of the Social Security Act [42 U.S.C. 401 et seq.] an alien shall be credited with-

(i) all of the qualifying quarters of coverage as defined under title II of the Social Security Act worked by a parent of such alien while the alien was under age 18, and

(ii) all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased.

The Divorce Case and Promise to Support

The trial court wanted Elena to pursue the contract between Boris and the government in federal court. But the statute clearly says that the sponsored immigrant may seek enforcement of the sponsor’s promise to support through the filing of a civil action in any appropriate court. Boris’ obligation ends if he or Elena dies. Further, the sponsor’s obligations end if the sponsored immigrant:

  1. becomes a United States citizen,
  2. has worked or can be credited with 40 quarters of coverage under the Social Security Act,
  3. no longer has lawful permanent resident status and has left the United States,
  4. becomes subject to removal but obtains a new grant of adjustment of status based on a new affidavit, or
  5. dies.

Wife’s Divorce Petition Alleged Breach of Contract

Elena said that she would not be able to become a United States citizen until the end of 2022 or later, and then only if she gained the requisite knowledge and command of the English language.

Husband Asserts Affirmative Defense of Fraud

A Judgment of Dissolution is Granted

Wife Argued She Was a Third-party Beneficiary of the Affidavit of Support

The Appeal

Elena, and people in similar situations, are not high-income earners, and to require them to start two separate cases in two different courts would be very costly, and as a result, they likely would not be able to pursue the second claim.


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