My Wife's Green Card Was Denied and We're Living Apart: Is the I-864 Still in Force?

If lawful permanent residence is denied, the Form I-864 Affidavit of Support never becomes enforceable.

Question

USCIS denied my wife’s green card. They said we didn't give the same answers to the questions they asked us at our interviews. We did not apply again because the filing fees are so expensive. She is still in the U.S. on Temporary Protected Status but now things are not so good between us. I want us to leave Miami and move to a different state so I can get a better job, but she doesn't want to come with me because she doesn't want to leave her family behind. She wants me to keep paying for her rent even if I leave and she stays but I think that’s just a waste of money. She says I don’t have a choice because I already signed the I-864 and so I have to pay to support her no matter what. I think this really doesn't make any sense. Do I really need to support her?

Answer

People who petition for their spouse or other relative to obtain a U.S. green card are usually required to file the Form I-864, Affidavit of Support because the U.S. government wants to make sure that immigrants who join their family in the U.S. do not become a public charge on U.S. taxpayers. Such petitioners must agree that, if their immigrant relative ever fails for any reason to provide sufficiently for him- or herself while living in the U.S., then they will step in to provide the necessary financial support, so that the U.S. taxpayer does not have to.

This could have worrying consequences in some cases, since the petitioner’s obligation continues even when the immigrant spouse refuses to find employment or when the marriage ends through divorce. And 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 since none was ever created in the first place. This is because the I-864 that you signed (and filed) would have become enforceable only if its beneficiary’s green card application had been approved. Since your wife’s green card application was denied, however, you are not required to provide her with financial support under the I-864.

Still, this does not necessarily mean that you have no obligation under the marriage (or divorce) laws of your particular state. You should contact a family law attorney for more information on that subject.

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