If we divorce, can my immigrant husband really make me support him under Form I-864?

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Question:

I'm a U.S. citizen who married a man from Singapore. He has a medical degree but no license to practice in the United States. He has been taking care of our daughter while I work. Our marriage is on the rocks, however. When I signed the Form I-864 Affidavit of Support, I didn't read it very carefully, because I never imagined things would end between us. But now I can't believe what I read. Is it possible my husband could force me to keep supporting him financially even after a divorce?

Answer:

You are not the first person to be shocked by the realization of what you signed on to with Form I-864. And yes, you read correctly: The Form I-864 Affidavit of Support creates an obligation for the sponsor to annually support the immigrant at an amount that's 125% or more of the U.S. Poverty Guidelines levels until the immigrant either:

  • -- becomes a U.S. citizen
  • -- earns 40 work quarters credited toward Social Security (approximately ten years of work)
  • -- dies, or
  • -- permanently leaves the United States.

You will notice that "divorce" is not on the above list.

When Form I-864 was first created, lawyers had some questions about whether U.S. courts would, in fact, confirm that it is legally enforceable as between the immigrant and the sponsor. (It was quite clear that U.S. government agencies could sue for reimbursement of any benefits the immigrant claimed, but the fact that the agreement wasn't directly made between and signed by both the sponsor and the immigrant raised some questions.)

Enough time has since passed, however, for U.S. courts to have stated quite clearly that a legal obligation exists between the U.S. sponsor and the sponsored immigrant. 

Another issue on lawyers' minds is whether the contract principle of "mitigation of damages" might apply. It's possible that courts will eventually hold that the immigrant should make reasonable efforts to find a job and become self-supporting before claiming the full support amount from the sponsor. However, the law on this has not yet been developed.

In the meantime, your best bet is to consult a divorce lawyer with experience in dealing with your obligations under Form I-864. Also see Nolo's articles on "The U.S. Sponsor's Financial Responsibilities."

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