Pasternak & Fidis Reporter

May 25, 2017

Form I-864, the Sponsored-Immigrant Spouse and Death and Divorce

In the modern world it is increasingly common for an American citizen to marry a foreign national. In some situations, the United States citizen spouse or permanent resident may sponsor the other for permanent resident status (often referred to as a “green card” for the color that the physical document was at one time).  The decision to do so can have lasting consequences in the event the marriage ends.

A sponsoring spouse must fill out an Affidavit of Support under Section 213A of the Immigration and Naturalization Act – commonly referred to as a Form I-864. A Form I-864 is a contract between the sponsor and the United States government that requires the sponsor to support the immigrant if the need arises.  Spouses commonly sign the Form I-864, but other qualifying family members may also sign the form.

In the Form I-864, the sponsor must provide proof of citizenship or green card status, his or her relationship to the immigrant, the number of dependents in the household, his or her annual income and copies of the most recently filed federal income tax returns. The sponsor may also provide information as to his or her assets.  The purpose of the Form I-864 is for the sponsoring spouse to demonstrate that he or she has sufficient income or assets to support the immigrant.  The threshold to prove the ability to support is low.  The Form I-864 obligates the sponsor to provide support necessary to maintain the sponsored immigrant at an income that is at least 125 percent of the Federal Poverty Guidelines.  In 2017, the Federal Poverty Guidelines for a household of two in the lower 48 states and the District of Columbia is annual income of $16,240.

The obligation to support the immigrant spouse terminates when the spouse becomes a U.S. citizen, has worked or can receive credit for 40 quarters of coverage under the Social Security Act, no longer has lawful permanent resident status and has departed from the U.S., is subject to removal, but applies for and obtains an adjustment of status with a new affidavit of support, if needed, or dies. The obligation does not terminate in the event of a divorce or the death of the sponsor.

The obligation under Form I-864 survives divorce. It is a contract between the U.S. government and the sponsor, not the immigrant, although the immigrant spouse is an intended beneficiary of this agreement.  To the extent that an immigrant spouse receives some type of public assistance, the government may seek reimbursement from the sponsoring spouse.  Even if the spouses had an agreement – a premarital, postmarital, or divorce settlement agreement – that waives spousal support, a court may still require a sponsoring spouse to provide support for the immigrant.  Moreover, even if the parties go to trial and the divorce judge denies a request from the immigrant spouse for spousal support, he or she may be able to file a separate lawsuit to require the sponsoring former spouse to provide a basic amount of support.

The Form I-864 is clear that the obligations terminate upon the death of the immigrant spouse, but not upon the death of the sponsor. Under certain circumstances, a substitute sponsor may submit a Form I-864 and assume the obligations of the deceased sponsor.  If that does not occur, there can be a claim against the deceased sponsor’s estate for reimbursement of any government benefits paid to the immigrant spouse.

Fiancé(e)s and spouses who are negotiating the terms of an agreement should consider the obligations under an I-864 that has been, or will be, submitted on behalf of one spouse by the other. The potential consequences of a Form I-864 should not be ignored since the obligations survive both death and divorce and can supersede a court order.  Proper planning should account for the sponsor’s fulfilling his or her obligations under the Form I-864 so that there are no surprises in the event that the marriage ends or the sponsor dies before the commitment to the government expires.