Does I-864 Really Force Me to Support Immigrant Ex-Spouse Who Has Plenty of Money or Can Work?

Dealing with financial obligations to an immigrant under an I-864 Affidavit of Support after a divorce.

By , J.D. · University of Washington School of Law

Many U.S. citizens and permanent residents are shocked, after they divorce the immigrant spouse whom they sponsored for a green card, to realize what they signed on to with USCIS Form I-864, the Affidavit of Support. It 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.

Notice that "divorce" is not on the above list. How can this support obligation be fair, many U.S. exes have asked, particularly in cases where, for instance, the immigrant moves in with someone who has plenty of money, or could easily get a decent-paying job? This article will consider this concern.

There's No Sense Challenging Form I-864's Enforceability in Court

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.

U.S. Law Contains No Requirement That Immigrants "Mitigate Damages" (Try to Find a Job)

Another issue on lawyers' minds has been whether the contract principle of "mitigation of damages" might apply in this situation. Some hoped that courts would 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 gone in the other direction. In the case of Zhu v. Deng, for example, the North Carolina Supreme Court noted that nothing in U.S. immigration law or regulations, or even the USCIS forms, suggests such a duty. Thus, drawing also on similar past cases, it held that there is no duty for the immigrant to mitigate damages in I-864 cases.

Courts Haven't Sympathized With U.S. Petitioner Where Immigrant Is Living Off Someone Else's Money

U.S. sponsors have brought lawsuits about the unfairness of being forced to shell out money to someone who is doing fine living with a new romantic partner, a relation, or someone else in the United States. So far, that hasn't worked.

The federal Ninth Circuit Court of Appeals addressed a situation like this, where a U.S. citizen husband (a well-to-do real estate agent), sued because his former wife had moved in with her adult son, who was supporting her at a level above the poverty line. (The case is Erler v. Erler, 2016 U.S. App. LEXIS 10361 (9th Cir. June 8, 2016).)

The court ruled that the son's support made no difference. Because of the Form I-864 contract, Mr. Erler still needed to continue supporting his ex-wife based solely on her income level—and she herself was earning nothing at all.

The court's reasoning was actually one of fairness to the U.S. citizen petitioner. The court said, "in signing the affidavit of support, Yashar agreed to support only Ayla, not Ayla and anyone else with whom she might choose to live. "

Drawing this line and looking solely at how much income the immigrant ex-spouse brings in cuts both ways, however. In fact, the court mentioned, "We recognize that our approach will sometimes lead to imperfect outcomes."

Again, this is just one U.S. Circuit. While other courts might look to its reasoning in their analyses, some might ultimately arrive at different conclusions.

Getting Legal Help

If you are a U.S. petitioner in this situation, your best bet is to consult a divorce lawyer with experience in dealing with your obligations under Form I-864. Also see articles on The U.S. Sponsor's Financial Responsibilities.

The lawyer might be able to work out a settlement with the immigrant ex, by offering a flat payment of cash in return for not demanding ongoing support. This has the advantage that you avoid making regular payments and possibly returning to court at later dates to determine whether your obligation to your ex is still in force.

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