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Can you enforce the Form I-864 Affidavit of Support in a divorce case?

Yes – in most states the USCIS Form I-864, Affidavit of Support can be enforced in a divorce case. A family law court has the authority to enforce the I-864 either (1) as a breach of contract claim or (2) through spousal maintenance (also called alimony). But as discussed below, divorce court is not necessarily the best way to enforce the Form I-864, and you may want to consider using a federal lawsuit instead.

Do family law courts have the power to enforce the Form I-864, Affidavit of Support?

The Form I-864 is created by federal immigration law. See 8 U.S.C. 1183a. If you ask a family law attorney if the Form I-864 can be enforced, something you will often hear is, “this is a federal law issue that needs to be enforced in federal court.” That is fundamentally incorrect for two reasons.

First, the Form I-864 is a contract. Specifically, it is a contract between the Affidavit of Support sponsor and the United States government. The green card holder sponsored by the immigrant is a “third-party beneficairy” to the contract, and has the legal ability to enforce it. But again, at the end of the day the Form I-864 is a contract. State courts – including family law courts – deal with contracts all the time. So it’s simply incorrect to say that only federal courts can enforce the Form I-864.

Second, yes, it is true that the federal statute creates what is called a “private right of action.” The Immigration and Nationality At, at 8 U.S.C. 1183a(e)(1), specifically says that a green card holder can enforce her rights under the Form I-864. But this does not make the issue exclusively for federal courts. In the U.S. legal system, a state court of general jurisdiction can enforce a federal statute, unless the statute says that only federal courts may hear such claims. In the case of the Form I-864, there is nothing in the federal statute that reserves jurisdiction exclusively for federal courts.

For these two reasons, state courts do indeed have the authority to enforce the Affidavit of Support. And family law courts – even though they are sometimes treated as their own type of court – are simply a division of a state’s general court. For that reason, they have the authority to enforce the Form I-864 for the same reasons that a state’s general court has authority to enforce the I-864.

How does the Form I-864 get enforced in divorce cases?

We have established that a family law court has the power to enforce the Form I-864. Now we need to look at the details of how exactly a divorce court enforces the Form Affidavit of Support. There are basically two different procedures that could be used.

(1) Enforcing the Form I-864 through an alimony (maintenance) order.

There is case law in some states that the Form I-864 can be enforced through an alimony order, also called spousal maintenance in some states. The states that take this approach include the following:

To achieve these results, remember that the family law judge is going to be viewing the I-864 through the lens of a state’s alimony/maintenance rules.

…remember that the family law judge is going to be viewing the I-864 through the lens of a state’s alimony/maintenance rules.

What’s the significance of that? Well, alimony tends to be based on a multitude of factors, like duration of the marriage, earning power of the parties, and so forth. The Affidavit of Support is very clear about the financial support due to a green card holder: her income has to be maintained at 125 percent of the poverty line. The Form I-864 is also clear about long the support obligation lasts (the five Terminating Events).

But, the clarity of the Form I-864 becomes muddier once a state’s maintenance statute gets involved. Basically, cases tend to go sideways in two ways from the perspective of the sponsored green car holder.

First, family courts may limit the amount of alimony given to an Affidavit of Support beneficiary. Under the terms of the Form I-864, the green card holder is entitled to be supported at an income level equal to 125% of the poverty line. That’s roughly $1,400/month for one person. So if the immigrant is unemployed, she is entitled to the $1,400 per month, period. But a family law judge may consider other factors under an alimony statute, and decide to award a lower amount (for example, based on the perceived earning power of the immigrant).

Second, a divorce court may limit the duration of alimony ordered for an I-864 beneficiary. Again, under the federal statute, the Form I-864 remains enforceable until the five Terminating Events as defined in the contract. But under the law in most states, long-term alimony is disfavored. For that reason, a family court judge may consider state law factors and order alimony for a specific period of time that is shorter than the enforcement period of the Form I-864 contract. Put differently, the family law court may order the sponsor to comply with his support obligation for a shorter period of time than a federal court would.

Sometimes these problems – too little alimony, or too short of a duration of support – can be fixed by an appeals court. Here is a recent example of that happening in Illinois. But once the trial court has entered a bad enforcement order, the green card holder has already lost in a major sense. Even if the order is fixed on appeal, that means lost time and resources to fix the mistake.

(2) Enforcing the Form I-864 as a contract in divorce court.

Another option for enforcing the Form I-864 in a divorce court is to treat it as a separate issue from alimony altogether. Remember that most family law courts are simply a division of a state’s court of general jurisdiction. That means that they have the authority to potentially hear any legal dispute that can be considered by the state court generally. Procedural rules of permissive joinder govern whether a party can bring an additional legal claim into a given lawsuit. As a general matter, such claim can be allowed if the claim involves the same parties, and similar facts to the claim already at issue.

The Affidavit of Support presents a strong case for permissible joinder. Two spouses are already in Court. The facts of primary relevance to the Affidavit of Support claim is the immigrant’s income history since this will determine what she can recover under the contract. But those facts about her income will already be at issue before the family law court. Little additional information is needed for the family law court to assess her claims under the Affidavit of Support. The additional facts relate primarily to whether the U.S. spouse signed the Form I-864, but this is rarely a contested fact, since the sponsor generally cannot deny that the I-864 was signed.

Presenting the Form I-864 to the family law court as a breach of contract claim, joined to the existing divorce matter, can potentially sidestep the challenges discussed above with respect to alimony. Viewed as a contract claim, and not as an alimony award, the multi-factor considerations governing alimony do not come into play, and neither the amount nor duration of an award should be limited.

Conclusion: Yes, you can enforce the I-864 in a divorce case.

The bottom line is that you probably can enforce the I-864 in a divorce proceeding. Whether that is a better strategic option than asserting the claim in federal court is a different matter. If you want individualized advice about your Affidavit of Support enforcement matter, contact us for a free case assessment. Family law attorneys are also welcome to request a case consultation at no cost. If you have general questions, feel free to drop them in the comments here.

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Greg is recognized as the leading national authority on enforcement of the Form I-864, Affidavit of Support. Greg represents low-income green card holders in lawsuits to recover support from their sponsors. Practicing family-based immigration law, Greg also focuses on helping married and engaged couples with U.S. immigration.

This Post Has 18 Comments

  1. I am waiting on my final court date for my divorce. I am the immigrant, my husband the sponsor. Last year he told me he wanted the divorce, and terminated the bank account we were both on. He brought me here with my 3 kids and wanted me to get out of the house with nothing. He closed on the house papers few days before we got married. We were already living in the house,so I was here on K1 visa, promise for marriage. The house was bought for us. He does not want to accept his obligations twards us and I have been living paycheck to paycheck for one and a half years…. still in the same house. I ask for the house, my lawyer’s fees back, and my monthly support from him so I can make life with my kids. What are my chances in this. Per family I dont make the 125% at least to make life.

    1. Hi, Drea. Sorry to hear about the very tough situation. If your income is under 125% of the poverty line then you could very well have a claim for support. Use the contact form on this page to get in touch with us and I’m happy to look at your case.

  2. Hi. Can I sue my ex spouse from a K1 visa after our divorce has been finalised. I was left with nothing due to her infidelity. I sold my home in the uk. Left my job and sold all my belongings. Her sister and her are my sponsors

  3. In order to get I-864 support, do you need to go to court? Or it is possible through agreements and a lawyer

    1. Either/or. Settlement and litigation are not alternative processes. Litigation and trial is basically what happens when a defendant doesn’t agree to voluntarily settle a claim. All I-864 claims that I work on start as settlement negotiations.


  4. Can a person revoke the affidavit of support? Especially retaliation for a divorce. The immigrant has been here for just over 5 years and has worked the entire time, makes more than the supporter.

  5. Can a prenuptial agreement effectively override or prevent the effect of the Form I-864 Affidavit of Support? The prenuptial agreement would also have clauses stating both spouses waive any spousal support rights in the event of divorce, if that is relevant.

    1. Hi, Sarah:
      No, the only published case law (Erler, 9th Circuit) says that nuptial agreements cannot waive support under the I-864. That’s because the congressionally created rights cannot be wived by private parties.

  6. Thank you for your work.
    We need you, immigrants suffering abandonment from our husbands.
    Your website says that Illinois has a successful practice of affidavit enforcement?
    In Chicago too?
    Which state has more compassionate and experienced judges in such cases?

    1. Is this reason for refusing in court on affidavit enforcement if :
      I have my own three tens of thousands in my account,
      I have no income, no job, I have no home on my own, no children and I still live in marriage with my sponsor,
      he refuses me any support, even he refuses to drive me to the driving school so that I can get a driver’s license.

  7. I’m a battered alien spouse who signed no prenup but was stuck with marital debt and nothing from the marital home, I-864 was not enforced. Family lawyer refuses to bring up I-864, keeps saying it’s just a debt case no one will enforce it, but divorce is not finalized. I’ve been paying settlement payments even though she is supposed to be sponsoring me. As alien spouse I also received unemployment during the pandemic, no stimulus payments because she routed them to her own account, and nothing from 401k contributions for two years. What can I do?

    1. Give me a call – we should definitely talk. Depending on the state you’re in there may be existing case law saying the I-864 can be enforced in the divorce (California, NC, Texas, to name a few).

  8. I want to sponsor my spouse, for her to get a Green card. An affidavit of support I-856 must be signed. I cannot have a cosponsor, since I make enough money. Can a separate contract be signed with another legal resident, who would vouch their financial responsibility for any expenses that might come to me as the petitioner/sponsor, from any affidavit of support obligations – such as spousal support or public assistance reimbursement from my wife, until she becomes a US citizen? Would this contract be enforceable in the court of law?

  9. I am going to court soon in florida,,signed a prenup have 2 year green card married for 2 years 6 months ,got served divorced paper Feb 26 2022,,have family attorney but believes I can not enforce i-864 at family court in Florida I can not pay another attorney .I have no credit score ,no family in Orland was the housewife ,my husband was responsible for us while I took care of him and kids.

    1. Florida is a challenging state because federal courts (Middle District) have held that they lack jurisdiction over these claims. A result I find absolutely incorrect (as do virtually all federal Courts, including the Northern District of Florida). Florida family law courts, however, have enforced the I-864.

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