In re Marriage of Bychina, 2021 IL App (2d) 200303, presented a case of first impression in Illinois. The Second District Illinois appellate court held that the trial court erred in deferring an I-864 claim to the federal court. The case reasoned that our state courts are the preferred forum to resolve breach-of-contract claims, where the immigrant/petitioner seeks relief in State court.
Facts. Elena Bychina petitioned to dissolve her marriage to Boris Astrakhantsev. She included a count for breach of a federal contract. This Count alleged that under that contract, Boris had promised to support her as an immigrant to the United States. The trial court acknowledged that it could reach the merits of the contract Count. Yet it declined to do so and directed her to seek relief in Federal court. Then wife, Elena, appealed. The Illinois appellate court reversed.
The parties met in Russia in 2012 when Elena was 32, and Boris was 55. Elena came to the States on a K-1 (90-day) visa in December 2014. Elena and Boris were then married in March 2015. The appellate court recited the facts as:
Shortly after the marriage, on June 8, 2015, respondent executed a Department of Homeland Security United States Citizenship and Immigration Services Form I-864 (Affidavit of Support) under section 213A of the Immigration and Nationality Act… As petitioner’s sponsor, respondent promised to support petitioner, the beneficiary, at an income level of at least 125% of the federal poverty level1 and to reimburse any government agencies for certain means-tested benefits paid to petitioner. §1183a(a)(1)(A)-(C).
The appellate court explained that the Affidavit of Support is supposed to preclude admission to the States of any alien who is “likely to become a public charge.” It explained that the document is a contract between the sponsor and the U.S. government, in the sponsored immigrant’s benefit.
The decision provides a footnote explaining that for 2021, 125% of the Federal Poverty guidelines for a one-person household is $16,100. The endpoint of the sponsor’s obligations is the sponsor’s death. Otherwise, it ends when the person sponsored:
(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.
The appellate court stated that the Affidavit of Support does not terminate the support obligations under the Form I-864. The appellate court then commented:
In the signature section of the Affidavit of Support, respondent certified under penalty of perjury that he “agree[d] to submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against [him] to enforce [his] obligation under this Form I-864.” (Emphases added.)
Elena filed her divorce petition in January 2019. The marriage lasted less than 4 years as of the date of filing. Her separate count within the petition alleged that Boris breached the promise to support her (as a third-party beneficiary) under the affidavit of support. It urged that Boris breached this contract by cancelling her medical insurance and by failing to financially support her since late December 2018. Elena asserted that she was a full-time student at a community college, not employed, and not expected to be employed in the near term. She alleged that Boris worked as a truck driver. She asserted that she could not become a United States citizen until late 2022 or later (and only if she had gained the requisite command of English). The appellate court noted that by filing her divorce case, she gave up her ability to become a citizen in three years and would have to wait five years. As a lawful permanent resident, she alleged that she was prohibited from seeking or obtaining any public benefits. She urged that Boris had to support her until she became a citizen. Thus, she sought enforcement of the Affidavit of Support plus attorneys’ fees.
Boris raised the affirmative defense of fraud. He counter-petitioned for a declaration of invalidity of marriage. These claims are notoriously hard to win. He argued that Elena fraudulently induced him into the marriage. He urged that she married merely seeking U.S. citizenship. Boris contended that Elena never intended to live as husband and wife with him, have children, or remain married past her acquisition of permanent-resident status.
The trial court granted Elena’s petition for temporary maintenance in February 2019. It later found Boris in contempt for failing to pay Elena’s rent on a temporary basis, failure to pay maintenance, and failure to pay interim attorney fees. In later filings, the petitioner alleged that she was employed as an Uber driver part-time and remained a student in community college.
The trial occurred on March 13, 2020 (shortly before the Covid-related shut down). At trial, Boris’s attorney appeared, but Boris failed to appear or present evidence. Petitioner was the only witness. The record on appeal did not contain a report of proceedings from the trial (trial testimony transcripts).
On May 8, 2020, the trial court dissolved the parties’ marriage. The trial court declined Elena’s request to enter judgment on the breach-of-contract count. It directed her to seek that relief in federal court. In extensive written findings, the court noted that the parties’ marriage was of short duration, there were no children and virtually no assets, and there was modest debt. The central issues were maintenance and the Affidavit of Support.
The trial court determined that an award of maintenance for the petitioner was not justified under the current circumstances. The court ordered a review of maintenance in 18 months (and set a three-year deadline for the petitioner to file a Federal maintenance claim). At that time, it reserved its authority to review any steps the petitioner took to become self-supporting. It rejected Boris’s claimed affirmative defense of fraud. It also rejected the husband’s request to declare that his marriage was invalid.
The parties’ income was unclear; the court determined that both parties were not credible on the subject. Elena, the trial court found, was underemployed. She did not testify to how many hours she worked per week or month. She had a university degree from Russia, and the trial court found her to be hardworking and intelligent. The court noted that while English was her second language, she had a greater understanding than she portrayed in court. This was evidenced in part by her responding in English to a question in court before it was fully translated into Russian.
Regarding Elena’s jobs, the trial court found her to be underemployed and determined that she could earn $2,000 a month. The 18-month review date was to assess both efforts to secure employment and efforts to bring a Federal case.
The trial court found it was an inappropriate forum to hear the case. It pointed to the “inherently conflicting nature of the Affidavit of Support and Illinois statutory and case law.” The trial court noted its ability to impute income and examine efforts to be self-supporting. These are directly contrary to the Federal law that “prohibits courts from requiring sponsored immigrants to mitigate their circumstances.”
Second, the court found that providing the federally required level of support “is not necessary if the immigrant can obtain employment at a wage equal to or above the specified level.” The court characterized the petitioner’s financial situation as “implausible.”
Third, the court noted that it did not wish to “inhibit” the petitioner from seeking relief in federal court. The court again noted the conflicting considerations in federal and Illinois law and the fact that the court did not want the doctrines of res judicata or collateral estoppel to bar a cause of action in federal court, “especially since this Court can impute income to [petitioner] at an amount above the federal poverty guidelines and make a finding that [she] is capable of obtaining employment at a wage equal to or above the specified level.”
The sole argument on appeal was the breach-of-contract count. The appellate court cited out-of-state cases holding that State courts have jurisdiction to hear claims seeking to enforce Form I-864 obligations. The appellate court concluded that:
Here, the trial court, without any motion or responsive pleading, sua sponte declined to rule on petitioner’s contract claim. Petitioner argues that the trial court had no discretion to decline to rule on her claim seeking enforcement of the Affidavit of Support. While courts may, in limited circumstances, decline to address otherwise valid claims, the circumstances here do not support the trial court’s refusal to do so.
The heart of the decision stated:
The court partly based its determination on the fact that Illinois divorce law conflicts with the obligations under Form I-864. This was error. Respondent’s obligations under the Affidavit of Support are separate from any obligations, such as maintenance, he may have under Illinois divorce law.
The appellate court continued:
Where a spousal support award is insufficient to maintain the sponsored immigrant’s income at the federally specified minimum level, the sponsor remains liable under the Affidavit of Support for the amount necessary to reach the minimum level. The Form I-864 obligation may be enforced in a state divorce action, it has been noted, through specific performance of the contract, by an order for spousal support under state law, or by a combination of both. The appellate court then stated that, “Here, the trial court was entirely capable of fashioning a remedy under both counts of petitioner’s petition.” Therefore the trial court erred when it refused to address the merits of the contract claim.
The trial court erred by requiring the wife to file another case to resolve the issue, even though she had asked the State trial court to address it. The appellate court reasoned that the trial court did not find that Federal court could better assess the claim under the Form I-864 obligation. The case stated succinctly: “A state court is as capable as a federal court of addressing the contact issue raised by such a claim…” The appellate court referred to an article by Greg McLawsen, “The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate,” 48 Fam. L.Q. 581, 590 & n.58 (2015).
This article queries why Form I-864 claims “are litigated mostly in federal court.” It noted that this choice is “puzzling.” It could be based on “mistaken view that [Form] I-864 enforcement involves ‘federal law.’” The Illinois Second District Appellate Court emphasized that the better approach is to treat the enforcement suit as a contract case, precisely the type of dispute that a state court of general jurisdiction is competent to adjudicate.
Finally, the Illinois appellate court rejected the potential for problems under collateral estoppel or res judicata. It stated that the available remedy for an error with the trial court’s decision would be within the State court system or ultimately to the U.S. Supreme Court, not a collateral attack in the lower Federal courts. This was because the Petitioner herself had chosen her desired venue to rule on the contract claim.
A recent case cites to this case and emphasizes that Federal and State courts have concurrent jurisdiction, stating:
As such, for many years, these claims have been raised and adjudicated in state-court divorce proceedings in states across the country. See, eg., Moody v. Sorokina, 40 A.D.3d 14, 830 N.Y.S.2d 399 (2007) (New York); Naik v. Naik, 399 N.J. Super 390, 944 A.2d 713 (2008) (New Jersey); Iannuzzelli v. Lovett, 981 So.2d 557 (2008) (Florida); In re Marriage of Sandhu, 41 Kan. App.2d 975, 207 P.3d 1067 (2009) (Kansas); In re Marriage of Kamali, 356 S.W.3d 544 (2011) (Texas); In re Marriage of Kumar, 13 Cal.App.5th 1072, 220 Cal. Rptr. 3d 863 (2017) (California); In re Marriage of Bychina, 2021 IL App. (2d) 200303, 452 Ill. Dec. 580, 186 N.E.3d 27 (2021) (Illinois). And this includes states within the Sixth Circuit. Davis, supra (where enforcement claim was heard and decided in Ohio state-court divorce proceeding); see also Motlagh v. Motlagh, 2017- Ohio 8667, 100 N.E.3d 937, 942 (Ohio App. 2017) (same); Greenleaf v. Greenleaf, 2011 Mich. App. LEXIS 1718, 2011 WL 4503303 (Mich.App. 2011) (where enforcement claim was heard and adjudicated in Michigan state-court divorce proceeding).
We also have an October, 2021 Northern District Illinois, case referring to Bychina and stating:
Generally, actions to enforce an I-864 Affidavit may be brought in state court. See In re Marriage of Bychina, 2021 IL App (2d) 200303, ¶ 35 (“State courts have jurisdiction to hear claims seeking to enforce Form I-864 obligations.”). But, as the Seventh Circuit noted, the right to support conferred by federal law through an I-864 affidavit exists separate from rights available under state divorce law. Liu v. Mund, 686 F.3d 418, 419-20; see also Bychina, 2021 IL App (2d) 200303, ¶ 37 (“Respondent’s obligations under the Affidavit of Support are separate from any obligations, such as maintenance, he may have under Illinois divorce law.”). Ronchin v. Hoop, 2021 U.S. Dist. LEXIS 203134, *5-6, 2021 WL 4902456
Conclusion. The show 90 Day Fiance brought renewed attention to I-864 claims. Based on cases such as this, expect State trial courts to increasingly base their decisions on Federal law in breach-of-contract claims. Concurrent jurisdiction is the concept that certain claims can be brought in either Federal or State court.
Cases like this should put an end to the myth that a beneficiary must have received means-tested public benefits to seek support from a sponsor. The current I-864 form, in fact, makes this clear. It provides in separate paragraphs:
“[i]f you do not provide sufficient support [to the beneficiary]… that person may sue you for support.”
It then provides that “[i]f a [government or private agency] provides any covered means-tested public benefits… the agency may ask you to reimburse them…”
Comparing the paragraphs, receipt of means-tested benefits is a precondition only to a governmental agency seeking reimbursement. The proper reading of the form would not bar an action by the non-citizen-beneficiary for support.
Takeaways. Three takeaways:
- The duty owed by a sponsor to a beneficiary is to maintain the beneficiary at 125% of the Poverty Guidelines. Thus, if the beneficiary’s income has not slipped beneath this point, the sponsor has no duty of support.
- A precondition to suing: The beneficiary must have obtained LPR status (lawful permanent resident).
- This case shows that claims of fraud in the inducement of the Affidavit of Support present an uphill battle.
The likely result of this case will be that the sponsor only has a duty to pay maintenance based on the difference between her income and 125% of the Federal Poverty Guidelines for a household of one. The law seems to focus more on what would constitute income under the Tax Code. Thus, while gifts are generally income under Illinois law per our seminal Rogers decision, the result might change under an I-864 claim.’
Duty to Mitigate? The key issue is whether there exists a duty to mitigate in these cases. In Illinois law, this is referred to as imputing income. A nd our January 1, 2025, amendments required specific court findings, including a non-exclusive 11-part test to determine potential imputation of income. Generally, an I-864 beneficiary has no duty to mitigate damages by seeking employment. Though not actually a per se “duty,” at least one decision holds that a party generally “cannot recover damages for a loss that he could have avoided by reasonable efforts.” See: Liu v. Mund, 686 F.3d 418 (7th Cir. 2012). Yet keep in mind that there are cases on the other side, such as where the Alaska Barnett v. Barnett, the Supreme Court of Alaska concluded that “[e]xisting case law” supported the conclusion that earning capacity should be imputed to an I-864 beneficiary, thus holding that spousal support was not appropriate given the beneficiary’s imputed earning capacity.
Attorney Fees. A final issue to spot involves attorney fees. The I-864 warns the sponsor: “If you are sued, and the court enters a judgment against you… [y]ou may also be required to pay the costs of collection, including attorney fees.”85 Likewise, 8 U.S.C. § 1183a(c) provides that remedies available to enforce the Affidavit of Support include “payment of legal fees and other costs of collection.” Yet there are conditions here. One is only entitled to reasonable fees. Further, the beneficiary is generally only entitled to fees if she or he prevails and a judgment is entered. Thus, the attorney bringing an I-864 claim should track the hours spent on it rather than the other aspects of the case, since they involve different standards.
Note. If the relative is either a K-1 fiancé(e), a K-3 spouse, or a K-2 or K-4 child of fiancé(e) or spouse, the sponsoring person does not need to submit an affidavit of support at the time he or she files the Form I-129F petition. Instead, one submits an affidavit of support at the time that the fiancé(e) or spouse adjusts status to permanent resident after coming to the United States.
See also
- https://www.uscis.gov/i-864
- http://www.ocbar.org/Portals/0/pdf/section_pdfs/immigration/meeting_materials/2020/Oct2020.pdf
- https://www.ilw.com/articles/2017,0616-McLawsen.pdf
- https://www.ilga.gov/Documents/Legislation/PublicActs/103/PDF/103-0967.pdf (Pub. Act 103-967), eff. Jan. 1, 2025, regarding imputation of income in Illinois—the second Technical Corrections Act.
- https://www.uscis.gov/green-card/green-card-processes-and-procedures/affidavit-of-support
ALERT: On Feb. 2, 2021, President Biden issued Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, which revoked a May 23, 2019, presidential memorandum issued by former President Trump. Consistent with this executive order, on March 19, 2021, the Department of Homeland Security withdrew the Oct. 2, 2020, proposed rule, Affidavit of Support on Behalf of Immigrants, that proposed changes to regulations governing affidavit of support requirements under section 213A of the Immigration and Nationality Act.
President Biden’s order was rescinded on January 20, 2025, with an executive order titled “Initial Rescissions of Harmful Executive Orders and Actions,” which included the formal revocation of EO 14012.
