What is the financial responsibility when sponsoring an immigrating spouse?

Know before you sign: this legal document can overpower divorce settlement agreements.

A US Citizen or lawful permanent resident of the United States can help their spouse immigrate to the United States. In connection with such an application, the sponsoring spouse must provide an Affidavit of Support within the Immigration and Nationality Act (INA).

What is an Affidavit of Support?

An Affidavit of Support is a legal document that states the sponsoring spouse will provide financial support at an income of at least 125% of the federal poverty level. The spouse who files the Affidavit of Support is referred to as the sponsoring spouse. The sponsoring spouse must generally provide financial support until the immigrant becomes a U.S. citizen or has completed 40 quarters of work.

Those who wish to move forward with the Affidavit of Support must file a Form I-864 when the intended individual is about to file for an adjustment to permanent resident status with the United States Citizenship and Immigration Services (USCIS) or with an Immigration Court in the United States. To receive approval, the sponsor will need to establish they have the financial means to support the individual. This generally entails the use of tax returns or other evidence to show the sponsor's household is at or higher than 125% of the federal poverty level for the household size. Other options are available for those who cannot meet the financial means test.

Are there any risks that come with this form of immigration?

USCIS states the affidavit is a legally enforceable contract. Submission of false information can result in criminal prosecution. The sponsoring spouse can also face financial penalties for failing to meet the terms of the affidavit.

The Affidavit of support obligation requirement imposed on a sponsor, substitute sponsor and joint sponsor under an affidavit of support, and any Co-sponsor household member's support obligation under a Form I-864A Contract between Sponsor and Household, all terminate by operation of law when the sponsored immigrant:

  1. Becomes a citizen of the United States;
  2. Has worked, or can be credited with, 40 qualifying quarters of Social security earnings,
  3. Ceases to hold the status of an alien lawfully admitted for permanent residence and departs the United States.
  4. Obtains in removal/deportation proceeding a new grant of adjustment of status as relief from removal (in this case, any individual(s) who signed an affidavit of support or Form I-864A Contract between Sponsor and Household in relation to the new adjustment application will be subject to the Affidavit of support obligations, rather than those who signed an affidavit of support or Form I-864A Contract between Sponsor and Household in relation to an earlier grant of Lawful permanent resident status ;or
  5. Dies.

This contract will supersede other legal documents. This means that, in most cases, if the couple were to get divorced the sponsoring spouse would still be required to provide financial support as outlined within this affidavit regardless of what is agreed to within any prenuptial agreement or postnuptial agreement that otherwise waived alimony or maintenance.

The government takes these obligations seriously. President Donald Trump recently issued a Memo reminding sponsors of their legal obligations and encouraging federal agencies to act against sponsors who fail to meet their obligations. As a result, it is wise to seek legal counsel before moving forward with the affidavit. An attorney experienced in these matters can discuss the implications of the agreement and other options. Your lawyer can also help you put together the information needed to file for the affidavit, or other option as chosen.