Affidavit of Support Implications in Divorce
Written by Cassity B. Gies for The Oklahoma Bar Journal.
Being the spouse of a United States citizen is the most common way to attain lawful permanent resident status, informally referred to as “getting a green card.” Each year the United States Citizen and Immigration Services (USCIS) admits more lawful permanent resident statuses through marriage than any other major type of admission.1 In a country where nearly half of all marriages end in divorce,2 couples using marriage as grounds for obtaining a green card face special issues during their divorce and even after. Because Oklahoma has one of the highest divorce rates in the country, with as many as two out of every three marriages ending in dissolution,3 family lawyers should be especially aware of the implications that come through marriage-based immigration.
When a principal applicant for lawful permanent resident status seeks to immigrate using their spouse as a sponsor, the sponsoring spouse must submit, amongst a host of other things, an Affidavit of Support.4 The affidavit is required to show that the immigrant will have adequate means of financial support and will not become a public charge.5 Form I-864, an Affidavit of Support, is a legally enforceable contract between the federal government and the sponsoring spouse.6 A sponsoring spouse accepts legal responsibility for financially supporting their alien spouse until they either become a United States citizen, die or are credited with 40 quarters of work (approximately 10 years). Divorce does not end that financial obligation.7
Three obligations arise for an I-864 sponsor: 1) the sponsor must reimburse the government for means-tested benefits received by the beneficiary over the obligatory 10-year period; 2) the sponsor must maintain the immigrant spouse at 125% above the federal poverty or at 100% of the federal poverty level for the household if the sponsor is an active military member; and 3) the sponsor must report any change in address to the attorney general and the state in which the sponsored alien lives during the period that the affidavit is enforceable.8