Why a Foreign National Spouse Is Legally Entitled to Support After Divorce

Affidavit of Support Obligations Continue Even After Petitioner and Foreign National Spouse Divorces

Under Form I-864, the Affidavit of Support, a U.S. citizen or permanent resident promises to the government that they will be able to support the foreign national family member who is the beneficiary of their visa petition. This means that they can provide financial support at 125 percent or more of the poverty level in the federal Poverty Guidelines until the foreign national gains U.S. citizenship or accumulates 40 work quarters, which amounts to about 10 years of work. If neither of those events occurs, the U.S. citizen or permanent resident will be responsible for supporting the foreign national for the rest of their life or until they permanently leave the U.S. The poverty level in the Poverty Guidelines increases each year, so the specific dollar amount of support also increases. If the U.S. sponsor is serving in the military or lives in Alaska or Hawaii, they must provide support at only 100 percent of the poverty level.

Divorce does not release a U.S. citizen from their I-864 support obligation.

Sometimes a U.S. citizen or permanent resident will petition to bring their foreign national spouse to the U.S., only to eventually divorce them. Divorce is not one of the grounds that can release the U.S. citizen or permanent resident from I-864 support. This can seem unreasonable because the divorced foreign national might be able to get a job or might start a new relationship with someone else who can financially support them.

Form I-864 Remains Enforceable

Challenging the enforceability of Form I-864 has failed decisively. Courts have found that the guarantee provided by the form is enforceable, even though it does not contain a contract between the U.S. sponsor and the foreign national beneficiary. Form I-864 thus allows the U.S. government (in theory) to sue the U.S. sponsor for reimbursement of government benefits paid to the foreign national beneficiary.

Alternatives for U.S. Citizens

In some cases, a divorced U.S. sponsor may argue that the foreign national beneficiary has a duty to mitigate their damages, a principle adapted from contract law. However, courts have generally concluded that a foreign national does not have a duty to mitigate damages by making good-faith efforts to find a job that can support them.

Sometimes a foreign national will start living with a new romantic interest or another friend or family member after getting a divorce from the U.S. sponsor. The U.S. sponsor may argue that forcing them to continue paying support to the foreign national is unfair, but courts have not accepted this argument. For example, a federal appeals court ruled in 2016 that a real estate agent needed to continue supporting his ex-wife, even though her adult son could support her adequately to prevent her from seeking government benefits. The court found that the I-864 required the real estate agent to support the wife because she had no income of her own. It felt that the rule of determining support based solely on the foreign national’s income level was fair to the U.S. citizen because it did not require them to support any dependents of the foreign national.

Divorce Negotiations

The best solution for a U.S. citizen divorcing a foreign national may be to negotiate a waiver of their I-864 support obligation during the divorce.

The most practical option in these situations may consist of negotiating an agreement with the foreign national spouse. The U.S. citizen spouse can retain a divorce lawyer to help them with this process. Ultimately, they might be able to make a lump sum payment at the time of the divorce in exchange for the foreign national spouse waiving any further right to I-864 support. This can provide an efficient and lasting solution.

Last reviewed October 2023

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