The USCIS Form I-864 dictates that a US citizen should support their spouse or ex-spouse with an amount of money not less than 125% of the US Poverty Guideline levels. Even after a divorce, the affidavit of support requires US citizens and permanent residents to continue supporting their ex-spouse until the immigrant spouse achieves the following:
- Becomes a United States citizen
- Leaves the country permanently
- Earns 40 work quarters toward social security; this is after about ten years of working.
- Dies
Divorce is not covered by the affidavit of support; hence many American citizens deem it unfair, especially when the divorced immigrant is a wealthy individual or can secure a good job independently.
Challenging Form I-864 in Court
After learning of the dictates of the controversial Form I-864, an American citizen may be compelled to challenge its enforceability in court. This is a lost course since when signing the Affidavit of support, the US citizen or permanent resident spouse agreed to the form’s provisions.
When this form was initially unleashed, many attorneys questioned whether the provisions would be legally enforceable. While the government could sue and be reimbursed for the benefits granted to an immigrant, the form does not provide a direct agreement between the sponsor and the immigrant.
U.S. courts, however, have asserted that a legal obligation exists between the sponsoring spouse and the immigrant spouse.
The Law Does Not Require the Immigrant to Mitigate Damages
The law does not require the ex-spouse immigrant to mitigate the damages by, for instance, making a reasonable effort to secure employment. Many asserted that the courts should hold the immigrant spouses accountable by prompting them to self-support, get a job, or even start a business. The affidavit of support, however, only provides for an immigrant’s claim of support from the sponsor. Nothing in the USCIS form suggests a duty to mitigate damages.
When the Immigrant Spouse Is Living with Someone Else
The Form I-864 provisions mean sponsors must come to terms with the fact that an immigrant ex-spouse could be living a comfortable life with a newly found romantic partner while collecting support from the sponsor. However, since the affidavit of support only applies to the support of the immigrant spouse, the sponsoring spouse is under no obligation to provide support for anyone else with whom the immigrant chooses to reside.
Can a Legal Citizen Sponsor Revoke an Immigration Sponsorship
Unless the immigrant ex dies, becomes a permanent citizen, performs about 10 years of work while paying into the Social Security system, or leaves the country permanently, a sponsor is required to support the immigrant. However, if the sponsorship is still pending and has not been approved, a sponsor could petition to have it canceled. Sponsors can write to the U.S. Citizenship and Immigration Services (USCIS) or visit their offices to withdraw sponsorship accordingly.
In some cases, the divorcing parties may also be able to file for revocation if they are both in agreement to peacefully terminate the sponsorship.
An experienced divorce attorney may also be able to negotiate a cash settlement with the immigrant ex-spouse to help the sponsoring spouse avoid ongoing spousal support payments.
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