If my immigrant wife's I-751 is denied, when will I be free of the Affidavit of Support?

A divorcing immigrant spouse may be able to obtain permanent residence even without a spouse's signature on the I-751, in which case the support obligation will likely continue.

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Question

I married a woman from another country, who I now believe was just after a green card. We separated a few months ago, and I refused to sign onto the I-751 application to go from conditional to permanent residence. If her I-751 gets denied, then she’ll have to leave the U.S., right? And in that case, won’t my obligations to support her under the I-864 Affidavit of Support end, too? How soon might this happen? She still insists that I give her money to live on, and says she’ll sue me under the I-864 if I don’t.

Answer

If your wife’s I-751 gets denied (and it might not be), she will be sent to an immigration judge who will decide whether she must leave the United States. Assuming she still qualifies for support, your obligations to support her under the I-864 will probably continue unless and until she is deported — and, according to several court cases, she will have the right to sue you for compliance.

Moreover, she will get a second chance to file her I-751 in front of the immigration judge. Even if you refuse to sign the form, she could still convince the immigration judge to let her keep her green card by proving that she would suffer “extreme hardship” were she forced to leave the United States. Likewise, if you obtain a divorce before the end of her immigration court case, she could convince the immigration judge to let her keep her green card by simply proving that your marriage was real even though it ended in divorce. In either a case, your obligation to support her under the I-864 would continue.

Now, if you really believe that your wife married you only for the green card, one option you might consider with some caution is to write a letter informing U.S. Citizenship and Immigration Services of this fact — or U.S. Immigration and Customs Enforcement if your wife is already in immigration court. (Be cautious here, because marriage fraud is a serious accusation, and immigration officers could suspect your involvement.) At the very least, the accusation should weaken your wife’s I-751 case. It could also lead to a “rescission” (or cancellation) of her green card, and/or to her deportation on a separate (fraud-related) legal ground. In such a case, your support obligation would cease.

In light of the seriousness of these consequences, perhaps you might also consider offering an alternative support agreement to your wife.

It remains a bit unclear, however, whether and to what extent your obligations should continue if the immigration judge denies your wife’s I-751 but she finds another way to stay in the U.S., legally or not (short of her obtaining a new green card with a different sponsor). You should consult an immigration attorney to explore this and other possible complications.

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