FAQs About Length and Extent of Sponsor's I-864 Affidavit of Support Obligation

Detailed fact patterns concerning the length of time or other circumstances that determine when an immigrant's sponsor is released from the support obligation set forth in the Form I-864 Affidavit of Support.

Any U.S. citizen or permanent resident petitioning to have a family member join him or her in the United States must sign an Affidavit of Support on Form I-864. It's a contract with the U.S. government, obligating the sponsor to provide support so as to ensure the immigrant doesn't need means-based public assistance ("welfare") for a number of years. But as time goes on, many sponsors begin to ask, "When will this obligation end?"

Question: How long does I-864 require me to keep supporting my ex-spouse?

I sponsored my then-husband, who is from Belgium, for a green card. We got divorced one year ago, which was about four years after I signed the Form I-864 Affidavit of Support. Both of us were working all that time, and he continues to work in the U.S., but his income is low. So I'm still giving him money. Do I really have to do this until he has worked ten years?

Answer

The Form I-864 Affidavit of Support obligates you, as the sponsor, to support your immigrant husband—and now ex-husband—at an amount that's 125% or more of the U.S. Poverty Guidelines levels until he either:

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

The good news is that work that you did during the marriage can be counted toward these 40 quarters. So based on the facts you've given, it sounds like he may have accrued four years' worth of work quarters before your divorce, plus four from your work, for a total of eight years' worth of work quarters pre-divorce.

The bad news is that, as soon as your divorce become final, your subsequent work stopped counting in this manner. So, again based on the facts provided, your former husband likely accrued one more year's worth of work quarters after the divorce, bringing his grand total to about nine years.

If all goes well, he will soon work another year, reaching 40 quarters creditable toward Social Security, and you will be released from your obligations under the Form I-864 Affidavit of Support.

Question: Will bankruptcy end support obligation to my stepchild?

I sponsored my ex-wife and her teenage son for a green card years ago. We later divorced. I found out that she applied for naturalization recently, but her son, now 19, didn't. He doesn't work and doesn't go to school. Instead, he wants me to pay for his support under the I-864. I can’t believe it! And even when I settled with his mother for the alimony, it was clear I didn't owe him child support. Now I'm filing for bankruptcy (Chapter 7), and I just want to make sure: Am I still going to be responsible for him under the I-864?

Answer

The answer to your question depends on the interplay between different areas of U.S. law, some of which are yet to be thoroughly interpreted by judicial decisions. The short answer is, though you may still be responsible under the I-864, you might be able to offer a legitimate argument for discharging your obligation in bankruptcy.

First off, your obligation to support your stepson under the I-864 Affidavit of Support (assuming his annual income fell below 125% of the amount listed under the U.S. Poverty Guidelines) continued after you divorced his mother. You signed a separate I-864 for each, so your obligation to support him was created irrespective of your responsibility to support her. Moreover, your obligation to support him did not depend on his age, and, even though this burden would decrease or cease upon his obtaining sufficient employment or U.S. citizenship, he is under no clear legal obligation to take any such step.

Secondly, bankruptcy does not necessarily end your I-864 obligations. Most debts and contractual obligations are dischargeable in bankruptcy, but so-called “domestic support obligations” are an exception. Such obligations are defined as alimony, maintenance, or support owed to or recoverable by one’s spouse, former spouse, or child. Under U.S. court decisions—for now—these also include I-864 support obligations.

Nonetheless, arguably, not every I-864 obligation needs be defined as a domestic support obligation. After all, some I-864 beneficiaries (parents, brothers, or sisters) are related to their sponsor (or joint sponsor) neither as spouses, nor as ex-spouses, nor as children. Therefore, the sponsors in such cases could argue that their obligation should be dischargeable.

Similarly, you might argue that your obligation to your stepson is not a domestic support obligation—notably because he is not a child and, even if he were, he is not your child (as reflected by the fact that he could not qualify for child support). To explore the viability of this argument in more detail, consult with both an immigration attorney and a bankruptcy attorney.

Question: If I signed I-864 but my spouse wasn't approved for green card, must I still provide support?

USCIS denied my husband’s green card. We did not apply again because of the high filing fees. He's still in the U.S. legally (in another status) but now things are not good between us. I want to move to a different state to get a better job, but he doesn't want to come. Yet he wants me to keep paying for rent and all, saying I have to, because I signed the I-864. Do I really need to support him?

Answer

A U.S. petitioner’s obligation does continue even when the immigrant spouse refuses to find employment or when the marriage ends through divorce. Petitioners who refuse to fulfill their obligation run the risk of getting sued.

Nevertheless, in your case, it appears that no I-864 obligation exists. The I-864 that you signed (and filed) would have become enforceable only if its beneficiary’s green card application was approved. Since your husband's green card application was denied, you are not required to provide financial support under the I-864.

This does not, however, mean that you have no obligation under the marriage (or divorce) laws of your particular state. Contact a family law attorney for more information.

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

I married a woman from another country, but I think she only wanted a green card. We separated a few months ago. I refused to sign onto the I-751 application to go from conditional to permanent residence. If her I-751 gets denied, she’ll have to leave the U.S., right? And in that case, won’t my obligation 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, saying 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 judge to let her keep her green card by simply proving that your marriage was real (bona fide) 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 to 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. (Marriage fraud is a serious accusation, and immigration officers could suspect your involvement, so proceed with care.)

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, 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). Consult an immigration attorney to explore this and other possible legal complications.

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