Quick Take on Some Financial Considerations of Separating or Divorcing Prior to Becoming a US Citizen

[Also available on LinkedIn.]

The I-751 (Petition to Remove Conditions of Residence) process can be a convenient point to review and consider the support obligations inherent in US marriage-based immigration. There is a lot of information online on the immigration status implications of transitioning from a conditional to a 10 year green card if you are divorced or separated and your sponsor spouse is not supporting you. There is a lot less info on how that can play out financially.

The sponsor spouse almost invariably signs an I-864 affidavit of support where they promised the Government to support their new spouse at 125% of the federal poverty line. The purpose of this requirement is to put the risk of the immigrant beneficiary needing financial support on the sponsor and away from the public.

What many people don’t realize is that the promise can be enforced directly by the beneficiary against the sponsoring spouse via a lawsuit. So, if after separation or divorce, the immigrant spouse is earning very little money or not working and the sponsor is not offering financial support, the immigrant beneficiary can sue their ex to compel financial payments to support them while they get back on their feet. This is separate and apart from any state alimony or child support laws. Also, the immigrant spouse can do this without money to hire a lawyer, because the I-864 has a fee shifting provision. Lawyers take these cases on a contingency because if legal action turns out to be necessary, the sponsor is ultimately responsible for paying attorneys fees.

Some takeaways:

1.  Sponsors — Make sure you completely understand this obligation before agreeing to sponsor anyone. The I-864 is an ironclad contract and a serious commitment and responsibility. Also, if you already signed one and are separating from your spouse, it pays to be civil and not try to use your spouse’s immigration status as a weapon. It could backfire. I would also suggest you bring this up with your divorce lawyer so as to factor this in to any divorce negotiation/agreement.

2.  Immigrant beneficiaries — If you are not working and your sponsor spouse is not supporting you financially, you have a powerful tool to force them to support you while you get back on your feet financially. This is not an area where you need to or should tolerate bullying. Consult a lawyer on this that is familiar with I-864 enforcement actions. Typically, they will evaluate these cases for free and take the case on a contingency if they decide to represent you. There are not many lawyers well versed on these cases so depending on where you live, you should consider hiring an out of state attorney.