by 
Key Takeaways
- Form I-864 creates a separate federal support obligation that can continue after divorce, even when a valid prenuptial agreement waives state law spousal maintenance.
- Divorce is not one of the events that terminates the sponsor’s obligation, so liability may continue until a recognized termination event occurs.
- In Erler v. Erler, the Ninth Circuit held that a premarital agreement and divorce judgment did not terminate the sponsor’s federal support obligation.
- Washington courts treat the federal sponsorship obligation separately from state-law maintenance, so resolving one does not necessarily resolve the other.
- Depending on the stage of the immigration case, withdrawal may still be possible before the I-864 obligation enters into force. Once it does, the available ways to end it are limited by federal law.
- A prenup can still address property, debts, business interests, and maintenance, but it should not suggest that those provisions automatically waive federal I-864 rights.
A prenuptial agreement can address many financial issues that may arise if a marriage ends, including property division, debts, and spousal maintenance. However, if you sponsor your spouse for a green card and sign Form I-864, Affidavit of Support, the financial obligations created by that federal form are separate from the rights addressed in a standard prenup.
For couples dealing with both marriage-based immigration and a prenuptial agreement, it’s important to know what each document can and can’t accomplish. Below, we explain how the I-864 works, why divorce usually doesn’t end the obligation, how courts treat prenup waivers, and what sponsors can do to address their financial situation before problems arise.
What Is the I-864 Affidavit of Support?
Form I-864, Affidavit of Support Under Section 213A of the Immigration and Nationality Act, is a legally enforceable financial sponsorship agreement used in most family-based immigration cases (and some employment-based cases). When you sign Form I-864, you agree to provide financial support to the sponsored immigrant if necessary.
Who Has to Sign Form I-864?
The petitioner must submit Form I-864 for an immigrant seeking permanent residence through a qualifying family relationship. This includes spouses, children, parents, and relatives in the family preference categories. Form I-864 is also required in certain employment-based immigration cases when a qualifying relative filed the immigrant petition or owns a qualifying interest in the petitioning entity.
In a marriage-based immigration case, the U.S. citizen or lawful permanent resident who filed the petition for the immigrant spouse usually serves as the petitioning sponsor. If that sponsor can’t meet the financial requirements, a qualifying joint sponsor may sometimes submit a separate Form I-864. However, using a joint sponsor does not eliminate the petitioning sponsor’s own responsibility: USCIS states that the petitioning sponsor remains legally accountable along with any joint sponsor.
What Financial Support Does the Sponsor Promise?
Under federal law, a sponsor generally agrees to maintain the sponsored immigrant at an annual income of at least 125% of the applicable Federal Poverty Guidelines. The applicable amount depends on household size and the poverty guidelines in effect for the relevant period.
A different threshold applies in a limited situation. If the sponsor is on active duty in the U.S. Armed Forces (other than active duty for training) and sponsoring a spouse or child, the applicable threshold is generally 100% of the Federal Poverty Guidelines.
Why Is Form I-864 Legally Enforceable?
Federal law and the implementing regulations make the sponsor’s undertaking legally enforceable. A sponsored immigrant who does not receive the required support may sue the sponsor, and certain government agencies may also seek reimbursement for means-tested public benefits.
The obligation may be enforced by:
- The sponsored immigrant
- The federal government
- State or local governments
- Certain benefit-providing agencies
How Long Does the I-864 Obligation Last?
The obligation generally ends when the sponsored immigrant:
- Becomes a U.S. citizen
- Has worked, or can be credited with, 40 qualifying quarters of coverage under the Social Security Act, subject to the federal rules governing which quarters may be counted
- Ceases to have lawful permanent resident status and departs the United States
- Obtains a new grant of adjustment of status in removal proceedings based on a new affidavit of support when one is required
- Dies (However, USCIS states that the sponsor’s estate may remain responsible for support that accrued before the sponsor died.)
The reference to 40 qualifying quarters is the source of the commonly repeated statement that an I-864 lasts “10 years.” That description can be misleading. USCIS explains that 40 quarters generally equate to about 10 years of work, but the obligation does not automatically expire after 10 calendar years. In some cases, qualifying quarters earned by a spouse or parent may also be credited.
Does Divorce End the I-864 Obligation?
No. USCIS expressly states that divorce does not end the sponsorship obligation. A sponsor may therefore remain financially responsible under the I-864 after the marriage has legally ended.
That distinction is central to the relationship between a prenup and an I-864. A prenuptial agreement may govern financial rights arising from marriage and divorce under state law, but Form I-864 creates a separate obligation under federal immigration law. The next question is how courts treat that obligation when the spouses divorce.
Why a Spousal Support Waiver Usually Does Not Eliminate I-864 Rights
Prenups commonly include provisions waiving alimony or spousal maintenance if the marriage ends. Those provisions may affect rights available under Washington family law, depending on the validity of the agreement and the terms involved.
An I-864 claim is different. It arises from a federal sponsorship obligation accepted as part of the immigrant spouse’s immigration case. Waiving state law maintenance, therefore, does not, by itself, waive the immigrant spouse’s right to enforce Form I-864.
Can the Immigrant Spouse Waive an I-864 Claim During Divorce?
Possibly, but this issue is different from an advance waiver in a prenup. Federal rulemaking commentary states that an adult-sponsored immigrant may be able to surrender the right to sue the sponsor in a divorce settlement. That does not terminate obligations owed to the government or benefit-granting agencies.
Courts may also have to consider issues such as releases, settlement language, claim preclusion, prior judgments, and which I-864 claims have already accrued. The result can depend heavily on what the parties agreed to and what a court previously decided. For that reason, neither sponsors nor sponsored immigrants should assume that general language waiving “support” or “all claims” will necessarily have a predictable effect on an I-864 dispute.
How Sponsors Can Best Protect Themselves
As we’ve explained, once an I-864 support obligation enters into force, a sponsor can’t end it simply by relying on a prenup, separating from the immigrant spouse, or obtaining a divorce. The better approach is to understand the commitment before signing Form I-864.
Understand the Financial Commitment Before Signing
The first step is to understand what Form I-864 requires before signing it. If you’re a sponsor, you should review:
- The applicable support threshold
- The potential duration of the obligation
- The events that terminate the obligation
- The sponsored immigrant’s right to enforce the affidavit
- Potential reimbursement claims involving means-tested public benefits
- The effect of using a joint sponsor or qualifying household member
Know When an I-864 Can Still Be Withdrawn
Timing can make a substantial difference. Federal regulations allow a sponsor, joint sponsor, substitute sponsor, or qualifying household member to disavow an affidavit before certain immigration decisions occur.
- In an adjustment of status case, the sponsor must submit the withdrawal in writing to the immigration officer or immigration judge before the decision on the adjustment application.
- In an immigrant visa case, a sponsor who has already submitted Form I-864 may generally disavow the sponsorship in writing before the immigrant visa is actually issued. Once it has been issued, the sponsor can’t disavow it unless the person or entity that filed the original visa petition also withdraws that petition in writing and notifies the Department of State officer who issued the visa.
Understand What a Prenup Can Actually Do
A prenup can still serve important financial purposes even though it can’t terminate an I-864 obligation. The agreement can address rights governed by state law while recognizing that federal immigration sponsorship may create separate rights and obligations.
Depending on the couple’s circumstances, a prenup may address:
- Separate property
- Community property rights
- Responsibility for debts
- Business interests
- Property division if the marriage ends
- State law spousal maintenance
- Certain estate planning rights
Coordinate Immigration and Family Law Advice
The I-864 can affect both immigration planning and divorce-related financial issues. When you work with a Seattle law firm that handles both family and immigration cases, your attorney can explain the following:
- When the affidavit becomes enforceable
- Which events terminate it
- When withdrawal may still be possible
- The effect of divorce agreements under Washington law
For couples dealing with both a prenup and marriage-based immigration sponsorship, reviewing the documents together can help prevent conflicting assumptions about what they can and can’t accomplish.
Questions? Speak to a Seattle Family and Immigration Lawyer
If you are considering a prenup before sponsoring a spouse, already signed Form I-864, or are facing divorce after an immigration sponsorship, the timing and wording of your agreements can affect your options. ZafiroLaw handles both family law and immigration matters, allowing us to review the prenup, sponsorship history, permanent-residence status, and any existing divorce agreements together. For more information or to schedule a no-obligation consultation, please call (206) 309-9645 now.
