Financial Lifeline for Green Card Holders Who Divorce or Separate

Mary and Steve met while Steve was working abroad. Mary was finishing school and they hit it off instantly. Mary followed Steve back to the US and they got married. Steve was a US citizen, sponsored Mary for her green card, and signed a Form I-864, Affidavit of Support. In addition to being newly married, Mary was now a US permanent resident. But the relationship soon soured. Conflicts, at first small, grew and the marriage broke down. Mary left. Steve earned the money and refused to financially support Mary. Mary was struggling to find work and was eligible for only minimal public assistance because she wasn’t a US citizen. Her financial difficulties were becoming overwhelming.

Many individuals like Mary are unaware that a lifeline exists in the immigration Form I-864, Affidavit of Support, which requires a sponsoring spouse or ex-spouse to financially support them. This document requires a sponsor to make sure their spouse has at least $1,342 per week to live on. Sponsored immigrants can hire a private attorney to help compel their sponsor to pay even if they have no money to pay the attorney.

What Do Green Card Holders Who Divorce or Separate Need to Know?

For far too long, the financial benefits for immigrants created by the I-864 affidavit of support have been poorly understood and rarely enforced. As a result, many immigrants who divorce or separate from their sponsoring spouses have unnecessarily struggled financially. But without US citizenship, these immigrants can only receive very limited government aid and must rely on the help of friends or charitable organizations (which is often inadequate) to survive. The Form I-864 offers a real lifeline. Learning about it is critical.

The Form I-864, Affidavit of Support

Many immigrants are “sponsored” by a spouse or other relative when they first come to the US. These “sponsors” sign a Form I-864, Affidavit of Support, which becomes a binding contract that requires the sponsor to financially support the intended immigrant if he or she is unable to support themselves. The purpose of this support obligation is to ensure that the sponsored immigrant does not become a “public charge” – dependent on government help (like food stamps, unemployment benefits, or Medicaid). By signing the I-864, the sponsor guarantees to the government that the beneficiary relative will be financially cared for.

Basically, the I-864 requires the sponsor to ensure that the sponsored immigrant earns at least 125% of the federal poverty line. Actual financial amounts that a sponsor must pay varies based on year, geography, and personal circumstances. The poverty guideline amounts are adjusted annually and increase based on the number of dependents. But for 2021, the annual poverty line for a household of one is $12,880, 125% of which equals $16,100 per year, or $1,342 per month. In other words, in 2021, a sponsor must ensure that his or her sponsored immigrant earns at least $1,342 per month. Any amount that the sponsored immigrant earns less than $1,342, the sponsor must make up. So if the immigrant earns nothing, the sponsor must pay the immigrant $1,342 per month. This can add up, especially if months or years pass without any financial support.  

The Duration of the I-864 Financial Support

A sponsor’s legal obligation to financially support their sponsored immigrant begins the moment the immigrant obtains immigration status based on the sponsor’s support. In other words, the financial obligation starts the moment the immigrant is allowed to reside in the US because of their sponsor’s promised support.

This obligation continues indefinitely – meaning forever – and can only end if one of five events occur:

1. Citizenship. The immigrant becomes a US citizen.
2. Work Credits. The immigrant receives credit for 40 quarters of work.
3. Departure. The immigrant stops being a permanent resident and leaves the US.
4. Another Sponsor. The immigrant obtains status based on another sponsor.
5. Death. The immigrant or sponsor dies.

Does Divorce Stop the I-864 Financial Support?

Divorce or separation  does not end a sponsor’s I-864 obligations. In fact, aside from the five items listed above, nothing can terminate the sponsor’s obligations to ensure that the immigrant is earning about $1,342 per month. Simply put, there is no defense and no obligation by the sponsored immigrant to try and reduce the amount the sponsor owes. This is true even if there are children involved, the couple is getting marriage counseling, a state family court proceeding has been started, or divorce lawyers are involved.  

The I-864 financial obligations stand alone – they are essentially “outside” of a state’s family law rules and regulations. In fact, cases filed to compel or enforce I-864 payments are usually filed in federal court; divorces and child custody matters are almost always filed in state court. While a lawyer well-versed in I-864 claims should be aware and informed of what’s going on in other family law proceedings, the I-864 claim is a distinct case that should be filed in a separate court.

In some ways the I-864 provides an immigrant spouse with more rights than are available from state family law. For instance, the I-864 contains no duty to mitigate (i.e., the responsibility to try and reduce your sponsor’s financial obligations). So unlike state family law, there is no need to analyze the immigrant’s wealth, what they own, or how much they could earn if they worked.

Qualifying for I-864 Financial Support

To see if you might qualify for this kind of financial support, it’s helpful to consider three basic questions. If you answer “Yes” (or maybe) to these questions, you might qualify.

1. Are you an immigrant? This means that if you are a Lawful Permanent Resident (LPR) or “green card” holder (even if your green card is conditional). In legalese, the question is whether you ever held (or currently hold) status as a US resident?
2. Did your fiancé(e) or spouse sponsor you? In almost all cases where a family member immigrates to the US, the Form I-864 was used. So if you became a US resident through marriage (IR-1/CR-1), as a fiancé (K-1), or through another family-based petition, the I-864 was probably used.  
3. Are you unemployed or earning less than $1,342 a month? If you are unemployed or have been earning (or currently make) below $1,342 per month, you could be entitled to support from your sponsor. Additional financial support is available if you have children that were sponsored as well.

Documents Necessary to Obtain I-864 Support

There are three categories of documents someone typically needs in order to demonstrate their entitlement to financial support from an immigration sponsor.  

First, you need the Form I-864 your sponsor actually signed. Unless you already have it, some effort may be required to get it. Unlike most immigration documents, only the sponsor has to sign the I-864. The sponsored immigrant does not have to sign the I-864 and frequently don’t have it. If a lawyer handled your immigration process, they will likely have a copy, although getting it may be difficult. Fortunately, the signed Form I-864 is part of every immigrant’s Alien File or A-File, which is the collection of documents the government keeps for all foreign-born individuals who come to the US. The A-File is important, but the I-864 is the most important part of it. The A-file can be obtained from the Department of Homeland Security through a Freedom of Information Act request. This can be done here: https://www.uscis.gov/records/request-records-through-the-freedom-of-information-act-or-privacy-act

Second, you need a recent Social Security Statement. This will show how much money and work credits you have earned – factors that are important to determine how much your ex is required to pay.  This document can be obtained electronically from the Social Security Administration’s statement portal, accessible here: https://www.ssa.gov/myaccount/statement.html

Third, and finally, you will need any documents associated with your divorce or separation. This includes any prenups, postnuptial agreements, divorce decrees/agreements, separation or alimony agreements, etc.  These are necessary to ensure that nothing interferes with your right to obtain financial support under the Form I-864.  Experienced lawyers will know what to look for and how to address any problems.  

How to Enforce Your I-864 Rights (Hiring a Lawyer on a Contingency Fee Basis)

The government recognizes that some sponsors may refuse to fulfill their financial obligations. This is unfortunately all too common. Based on this reality, lawmakers who created the Form I-864 also passed rules that allow sponsored immigrants to sue their sponsors to get the money they are owed. In fact, when signing the Form I-864, sponsors agree that they can be sued in the event they fail to financially support their sponsored immigrant.  

Because this is a specialized area of litigation, the law also allows for sponsored immigrants to hire litigation counsel and collect attorneys fees from the sponsor if they are successful. In other words, sponsors who are successfully sued must not only pay the money they owe the immigrant but must also pay fees to the immigrant’s lawyers who filed the case. 

As a result of these rules, sponsored immigrants are able to hire specialized I-864 lawyers on a contingency basis – usually without having to pay any costs upfront – to sue their ex-spouse. This means that the attorneys who handle I-864 cases usually cover all the litigation expenses and only get paid if they win. This is in contrast to how most divorce lawyers charge their clients on an hourly or flat-fee basis. State family law typically prohibits contingency fee arrangements.

Knowing Your I-864 Rights

Like most things in this country, it pays to know your rights. This is especially so with the financial support immigrants are owed by their I-864 sponsors.