Family Law Section Blog: Immigration Matters in Divorce: The I-864 Affidavit of Support:

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  • Family Law Section Blog
    November
    29
    2018

    Immigration Matters in Divorce: The I-864 Affidavit of Support

    Cassel M. Villarreal

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    When you represent noncitizen clients, immigration issues may overlap with family law issues. Cassel Villarreal details one particular issue – the I-864 Affidavit for Support, where a citizen sponsor agrees to financially support their immigrating spouse – and how it comes to play in divorce.

    A divorce that involves a noncitizen spouse is becoming more common. In a divorce case – whether you represent a client who signed an I-864 Affidavit of Support for their spouse, or if you represent the permanent resident spouse sponsored by the affidavit – it is important to know what, if any, obligations continue to exist.

    The I-864 Affidavit of Support is required for almost all family-based immigrants, and shows the government that the immigrant, while residing in the United States, has adequate financial support and will not need public benefits.

    Cassel McClure Villarreal com cvillarreal derrlaw Cassel McClure Villarreal, DePaul 2000, is a partner with Derr & Villarreal LLC, Beaver Dam, where she focuses her practice on family law litigation and mediation.

    An individual with permanent residence, in general, has been granted permission to stay in the U.S. indefinitely (this is what we commonly think of as a “green card”). Applicants who seek permanent residence through a U.S. citizen family member, such as a spouse, must be financially sponsored.

    The sponsor, by signing an I-864 Affidavit of Support, agrees to use their income and assets to support the immigrant family member. The affidavit creates an enforceable contract between the sponsor and certain government entities providing public assistance.

    The Responsibilities of the Sponsoring Spouse

    By signing the affidavit, the sponsoring spouse agrees to support their husband or wife at an annual income that is not less than 125 percent of the federal poverty line (or, if the sponsoring spouse is on active duty in the U.S. Armed Forces or U.S. Coast Guard, the amount is 100 percent of the federal poverty line).

    In addition, the sponsoring spouse is obligated to provide notice of any change in their address to the U.S. Citizenship and Immigration Services.

    Divorce and the Sponsoring Spouse

    A divorce does not void the contract created with an I-864 Affidavit of Support.

    Regardless of the waiver or denial of maintenance or the allocation of property in a divorce, the sponsoring spouse is still obligated to meet their responsibilities under the affidavit.

    In addition, there is no requirement that the sponsored spouse take steps to lessen the financial support provided to them – they can bring suit in federal court to obtain and enforce the promised support.1 Also, a federal, state, or local agency may sue to enforce reimbursement in the amount of public benefits provided to the sponsored spouse.

    A sponsoring spouse’s obligations to their husband or wife ends if:


    • the spouse becomes a U.S. Citizen;

    • the spouse has worked or received credit for 40 quarters of work (about 10 years of employment) as defined by the Social Security Administration;

    • the sponsored spouse no longer holds permanent resident status and has left the U.S.; or

    • either spouse dies.

    A sponsoring spouse’s estate is not required to support the surviving spouse, except to the extent that any support obligation was incurred prior to the sponsor’s death.

    Considerations for Divorce

    Even if maintenance is waived or denied in the judgment of divorce, it does not alter the sponsor’s obligations under the affidavit.

    A divorced spouse’s income and property awarded to them in a divorce can still be required to support the former spouse under an I-864 Affidavit of Support. If your client signed the affidavit, it is important that they are aware the divorce judgment does not relieve them of their obligations.

    Likewise, if your client is supported by an I-864 Affidavit of Support, it is important that they are aware they are ineligible for certain federal, state, or local means-tested public benefits, because the agency will consider the sponsor’s resources as available in determining eligibility. This does not apply to public benefits identified in 403(c) of the Welfare Reform Act (e.g., emergency Medicaid, services provided under the National School Lunch and Child Nutrition Acts, immunizations etc.)

    More information regarding the I-864 Affidavit of Support is found on the U.S. Customs and Immigration Services website.

    Reach Out to an Immigration Attorney

    The affidavit is just one example of immigration’s overlap with family law in the context of divorce. If you represent a noncitizen spouse or a spouse married to a noncitizen, it is important to explore what, if any, immigration issues merit consideration. It is recommended to reach out to an immigration attorney for assistance, as the issues often involve federal law, and can be quite complex.

    Endnote

    1 Cheshire v. Cheshire, 2006 U. S. dist. LEXIS 26602 (M.D. Fla. May 4, 2006); Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).





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