Spousal Support of Foreign Nationals – The I-864

April 30, 2015 | Blog, Spousal Support - APL

Icon for author Brian Vertz Brian Vertz

Back in 2012, I reported on a Pennsylvania Superior Court case, Love v. Love, in which Pennsylvania recognized a support obligation arising from sponsorship of a foreign national spouse.  Now, the ABA Family Law Quarterly has published an article, entitled “The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate,” examining Love and similar decisions around the United States.  As the article mentions, a spouse who sponsors his or her spouse for immigration to the United States must sign a form, the I-864, promising to provide support to the foreign national, at a level equal to 125% of the Federal Poverty Guidelines.  Currently, that is equivalent to $14,588 per year ($1,216 per month) plus $5,075 for each additional household member.

The support obligation created by I-864 is indefinite in duration.  Potentially, a sponsor could be contractually liable for the lifetime support of a foreign national, if the foreign spouse does not earn in excess of the poverty guideline.  A Florida federal district court held, in fact, that the I-864 obligation continues after separation and divorce.  The obligation does terminate, however, when the foreign national achieves U.S. citizenship, works for 40 quarters (10 years), leaves the U.S. and resigns permanent citizenship, is deported, or dies. Household income of the sponsor may be used to meet the support obligation (if the spouses reside together), and their earnings may be “double stacked” to meet the 40 quarter requirement in five years.

Avoiding the I-864 support obligation is extremely difficult, as the article suggests.  One might think that the obligation could be waived with a prenup, but three out of four courts who have considered that argument rejected it.  Other contract remedies, such as failure of consideration, have met similar fates.  The author of this excellent article, Greg McLawsen, maintains a website and blog dedicated to this subject, found here.

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