8-4-2020 - The I-864 Affidavit for Support and Divorce

The I-864 Affidavit of Support is a critical document that many people overlook, but one that has exceedingly long and permanent effects. This form is where immigration issues merges with family law issues, two law fields that the Porter Legal Group specializes in and can assist you with.

Whether you have already filed an I-864 Affidavit, are in the process of filing an I-864 Affidavit, are trying to enforce an I-864, or are in the process of a divorce and there is an I-864 at play there are many factors that you must know.

What is an I-864 Affidavit for Support?

The I-864 Affidavit of Support is used by applicants who seek permanent residence through a U.S. citizen family member sponsor, in where a sponsor family member agrees to financially support an applicant immigrant. The most common cases, and the case that we will focus on in this blog post, is that of citizen spouses applying for and executing an I-864 to sponsor an immigrant spouse. The I-864 Affidavit is a contract between a citizen spouse and the U.S. government that gives the government the ability to consider the citizen spouse’s income and assets available for the support of the immigrant spouse.

The purpose of the affidavit is to ensure that the immigrant spouse is not a public charge, someone who is unable to support themselves and/or who depends on benefits to provide an income. Thus, the affidavit is required for most family based immigration petitions.

Responsibilities Under an I-864 Affidavit

The I-864 Affidavit places certain responsibilities on the citizen spouse. These responsibilities include:

(1) Maintaining support of the immigrant spouse at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size. This differs from the 100 percent requirement above the poverty guideline for sponsors that are active duty U.S. Armed Forces or U.S. Coast Guard;

(2) A sponsor spouse must reimburse the government for any means tested benefits that an immigrant spouse received, such as Medicaid, etc.; AND

(3) The sponsor spouse must report any address changes to USCIS within 30 days by filing a Form I-865.

An immigrant needs to earn less than 125% of the Federal Poverty Guidelines to qualify for maintenance. In practice, for a sponsor’s household of size of 2, which includes the sponsor and the sponsored immigrant, the minimum required support is $17,240. This means if an immigrant is making $17,240 or more a year, or $1,436.67 a month, then a sponsor is not required to provide support. But, if an immigrant makes less, then the sponsor spouse is required to make up any difference until the $17,240 threshold is met.

Importantly, if a sponsor spouse who becomes a lawful permanent resident is not provided support based on an I-864 Affidavit, then that sponsored immigrant spouse may sue for the required support. Remember, this is an amount that may equal $17,240 a year for the typical sponsor.

Termination of an I-864 Affidavit

The I-864’s obligation ends ONLY when:

(1) The immigrant spouse becomes a U.S. citizen;

(2) The immigrant spouse has worked or received credit for 40 quarters of work, which is approximately 10 years of employment, as defined by the Social Security Administration;

(3) The immigrant spouse no longer holds permanent status or has left the U.S.;

(4) The immigrant spouse is subject to removal, but applies for and obtains, in removal proceedings, a new grant of adjustment of status, based on a new affidavit, if one is required; OR

(5) The immigrant or sponsor spouse dies.

Although the I-864 form is particular to immigration, it collides with family law issues that are prevalently seen in divorce cases dealing with an immigrant spouse that is not yet a U.S. citizen. Luckily, here at the Porter Legal Group, we have both family and immigration attorneys to assist your legal needs such as the intricate I-864 Affidavit.

Notably, a divorce does not terminate or void an I-864 Affidavit for Support. Thus, divorcing an immigrant spouse does not end the commitment to an I-864 Affidavit. A waiver of maintenance, an invalidity of spousal maintenance, or division of property in a divorce does not affect the responsibilities of a sponsor under the I-864 Affidavit. Notably, the I-864 Affidavit is enforceable in federal court.

A sponsored immigrant spouse is not required to lessen the financial support afforded to them. Therefore, the sponsored immigrant spouse does not need find employment to mitigate or lessen the costs of supportability required of sponsor spouses. That means that it is possible that a sponsor may have to pay a yearly support of $17,240 to an immigrant spouse for up to 10 years!

What can you do?

As you see, the I-864 Affidavit a seemingly simple form easily overlooked that has vital financial consequences, can survive a marriage, and may last up to 10 years. This agreement is not an agreement to take lightly and one that will not go away if ignored. An immigrant spouse has the right to enforce it despite divorce and the sponsor spouse will be held liable. Getting out of such a contract is difficult and will most likely require a lawyer to assist you in any undertaking of an Affidavit of Support. If you find yourself trying to enforce an I-864 or trying to terminate an I-864 we may be able to help you!

Feel free to give us, Porter Legal Group, a visit at 2929 North Central Expressway, Suite 125, Richardson, Texas 75080 or give us a call at (972) 400-2177 to aid you in your immigration or family issues!