Unlike other immigration tracks, the marriage visa presents a relatively simple and straightforward vehicle for affording one’s significant other a reliable route to citizenship. Yet, for U.S. citizens considering marriage-based immigration as a sponsor spouse, it is imperative to read the fine print and be fully aware of the legal obligations within the process that will inextricably link the sponsor with their spouse for up to a decade—even if the spark dies out long before that.
It’s not surprising, given the region’s cultural diversity, that Northern Virginia and the D.C. Metro area represent one of the nation’s highest marriage-based Green Card concentrations. However, many of these marriages will end in divorce. This can often result in sponsor spouses becoming entangled in an already complicated litigation process, only to be astonished when they discover that their ill-fated romance may have ended quickly, but their obligation to provide future financial support will not. When a U.S. citizen seeks to provide another with status and citizenship, there are some somber strings that will likely attach.
Many sponsors come to realize that they are on the hook for what amounts to “alimony,” whether or not it was the result of divorce proceedings in a Virginia court. By executing USCIS Form I-864, a sponsor spouse agrees to be financially liable for their emigrating spouse, independent of any obligation a Virginia court may impose in a divorce suit. Very often the sponsor is stunned to learn that any support obligations levied by local courts when the marriage ends may not be the end of the story. The federal government can and does enforce the terms of the I-864 “Affidavit of Support” when prompted by the foreign national spouse. And it does so without concern for concepts like equity and fairness.
When signing the Affidavit of Support, a sponsor spouse promises to provide support for their newly betrothed at 125% of the Federal Poverty Level, and for a period of time that may not be clearly defined or easily calculated in advance. This support obligation may only terminate if the ex-spouse dies, leaves the United States, or becomes a U.S. citizen. But under the wrong circumstances, the sponsor is on the hook for up to a decade, with no consideration for the foreign national’s actions or abilities.
For 2022, the Federal Poverty Level for a household with only two members is $18,310, making a sponsor spouse’s financial obligation $22,887 or just under $2,000 per month. This amount would be approximately 30% of the sponsor’s gross income if their pre-deduction earnings were $76,290. However, under the I-864 obligation, the sponsor’s duty is fixed to national trends and not related to their actual income or expenses. And don’t forget, the support obligation increases each year when the government increases the Federal Poverty Level figure.
The length of the sponsor’s I-864 obligation to provide support continues for a period of “40 work quarters credited toward Social Security,” which is typically approximately 10 years. If the parties were married for two years, the sponsor may get a break if their immigrant spouse was working and collecting credit for up to eight work quarters to shave some time off the sponsor’s sentence. The sponsor could receive an additional eight work quarters of credit if the sponsor was also working during those two years of marriage, leaving the sponsor with only 24 more quarters (or about 6 years) outstanding. However, once divorced the sponsor’s work quarters no longer count and only the immigrant spouse’s employment will be credited to the total.
Signing the I-864 instantly creates an independent contractual obligation that can’t be vacated by the sponsor’s local divorce court, absent a voiding of the marriage itself. And unlike in a divorce, it doesn’t matter if the foreign spouse committed adultery or abandoned the marriage. Their actions during the marriage won’t bar their right to support if they’re still residing in the U.S. Nor does the sponsor’s financial obligation end just because their ex-spouse moves on with someone else. Even if that someone else has a lot more money than the sponsor.
A glaring disparity between the I-864 obligation and normal alimony may shock the conscience of anyone familiar with principals of equity or imputing income to a support recipient. The immigrant spouse is under no obligation to seek employment or mitigate his or her financial circumstances in any way. Where a divorce court might find the same individual “willfully unemployed” and exercise its authority to impute income (i.e., consider an individual’s earning capacity instead of their actual income earned) for the purposes of calculating an equitable support amount, the residual obligations associated with sponsoring a Green Card recipient are “one size fits all” and federally indexed and adjusted annually.
And it doesn’t end there. If the sponsor’s ex-spouse applies for and receives any “means-tested” public benefits, the sponsor becomes responsible for repaying the cost of those benefits to the agency that provided them. If he or she fails to do so, either the agency or the sponsor’s ex can sue the sponsor and seek attorney’s fees in addition to the cost of benefits.
Challenging the enforceability or fairness of I-864 obligations in court has consistently proven futile. A sponsor spouse may be compelled to action by an overwhelming sense of injustice and that the judicial system will protect what is fair. But in this case, that’s wrong. So long as the foreign national spouse remains unemployed, for whatever reason, their access to other financial opportunities or receipt of support from third parties is irrelevant and unlikely to provide the payor spouse with any relief. In most cases, the obligated spouse’s best and only option is to seek an agreement with the foreign national spouse as part of the divorce, including a waiver of further rights under the I-864.
To avoid increasing the pain and frustration of an already emotionally and financially taxing divorce process, the sponsor’s best course of action is to proactively consult with an immigration attorney before sponsoring a foreign national immigrant for a marriage-based Green Card—no matter what the sponsor thinks they know, or who the sponsor thinks they’re marrying.
However, the heart wants what it wants and often emotion and excitement prevent deliberation and reason from prevailing. If you are a sponsor spouse facing this situation, it makes sense to retain the counsel and services of an experienced divorce attorney, to ensure that the terms of your divorce include a resolution of the I-864 support obligation so you can move on with your life. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg-Ashburn, Manassas and Fredericksburg-Stafford, representing clients throughout Northern Virginia. Contact us to schedule a consultation today.