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How Do I Withdraw The Form I-864, Affidavit Of Support?

How do I withdraw the Form I-864, Affidavit of Support?

The Form I-864, Affidavit of Support imposes serious financial obligations on a  sponsor who signs the form. If you have signed and filed a Form I-864, can you withdraw the form if you change your mind? Under some circumstances, yes.

Withdrawing a Form I-864 is not a simple matter. We strongly encourage you to retain an attorney if you wish to withdraw the Affidavit. As described below, the Form I-864 imposes serious financial obligations. If the Affidavit is not correctly withdrawn then you will be bound by the contract.

What is the Form I-864?

The Form I-864, Affidavit of Support is required in virtually all family-based immigration cases. By signing the Form I-864, a sponsor agrees to provide any income necessary to ensure the immigrant has income at 125% of the Federal Poverty Guidelines. That is roughly $15,000 per year for a household of one. The sponsor also agrees to repay the cost of any “means-tested public benefits” (such as Medicaid) given to the immigrant.

The sponsor’s obligations last until the immigrant

  1. Becomes citizen;
  2. Can be credited w/ 40-quarters of work;
  3. Abandons residency and departs U.S.;
  4. Is deported and gets new sponsor; or
  5. Dies.

Divorce does not end the sponsor’s obligations.

If the primary visa sponsor has inadequate income, an additional “joint sponsor” or “co-sponsor” can be used. The joint sponsor’s responsibilities are the same as those of the primary sponsor.

Under some circumstances, the immigrant can sue her sponsor for financial support. This happens primarily in cases where the immigrant is divorcing her visa sponsoring spouse. Read more about enforcement of the I-864 on the website of our partner law firm here.

Can I withdraw the Form I-864?

What happens if you have already filed the Form I-864, but then change your mind? The Code of Federal Regulations states:

Withdrawal of Form I-864 or Form I-864A. (1) In an immigrant visa case, once the sponsor, substitute sponsor, joint sponsor, household member, or intending immigrant has presented a signed Form I-864 or Form I-864A to a Department of State officer, the sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement to act as sponsor, substitute sponsor, joint sponsor, or household member if he or she does so in writing and submits the document to the Department of State officer before the actual issuance of an immigrant visa to the intending immigrant. Once the intending immigrant has obtained an immigrant visa, a sponsor, substitute sponsor, joint sponsor, or household member cannot disavow his or her agreement to act as a sponsor, joint sponsor, or household member unless the person or entity who filed the visa petition withdraws the visa petition in writing, as specified in 8 CFR 205.1(a)(3)(i)(A)or 8 CFR 205.1(a)(3)(iii)(C), and also notifies the Department of State officer who issued the visa of the withdrawal of the petition.

8 C.F.R. § 213.2(f).

In other words, it is possible to withdraw the Form I-864, but only if the immigrant has not been issued her visa. Once the visa is issued – or residency granted in the case of adjustment of status – it is too late.

How do I withdraw the I-864 in an immigrant visa/consular (DS-260) case?

Immigrant visa cases through U.S. consulates follow a two-step process. Learn more here. After the initial petition (I-130) is approved, the case first goes to the National Visa Center (NVC). At the NVC, the visa applicant files the DS-260 visa application and supporting documents including the Form I-864. The NVC stage is where the Form I-864 enters the picture. Only after the NVC has received all supporting documents is a case then forwarded to the appropriate U.S. consulate abroad.

In an immigrant visa case, the sponsor could need to communicate with the NVC and/or the U.S. consulate if he wishes to withdraw his Form I-864. Until the NVC has received all required documents the U.S. consulate literally will not have the case file. On the other hand, there is no easy way to determine when the case has been sent from the NVC to the consulate. Once the NVC has shipped the case file it could be too late to withdraw the Form I-864 by communicating with only the NVC.

The safest course of action is probably to communicate with both the NVC and the appopriate U.S. consulate. The request to withdraw a Form I-864 must be made in writing. When communicating the the NVC you must include the visa application case number, as assigned by the NVC. This number can be found on the invoices issued by the NVC. (There will be one for the DS-260 and another for the Form I-864 – the invoice IDs will be different, but case number the same). The withdraw letter should list the applicant’s full name and date of birth, along with the NVC case number.

The withdraw letter should also be sent to the appropriate U.S. consulate. This can be somewhat trickier. Each consulate has an “immigrant visa” unit that processes permanent (i.e., “immigrant”) visa applications. But each consulate has different practices for how the immigrant visa unit communicates with applicants.

The written request to withdraw the Form I-864 should be sent in hard copy to the appropriate consulate – contact information can be found here. The letter should contain all the information included in the NVC letter. The letter should be sent with delivery confirmation. For guidelines on submitting immigrant visa-related documents to consulates, see the drop-down list on this Department of State page.

Many – but not all – IV units are accessible by email. Some – such as the consulate in London – are more easily reached by phone. If an email address for the consulate’s IV unit is available, a copy of the withdraw letter should be sent there as well.

How do I withdraw the Form I-864 in an adjustment of status (I-485) case?

Similar to immigrant visa cases, adjustment applications are first reviewed by a central USCIS office before they are forwarded to a local office for interview. If a sponsor wishes to withdraw the Form I-864 in an adjustment case, it is safest to submit that request to both the central office and local (“field”) office.

As in NVC/immigrant visa cases, an adjustment application is assigned a case number once filed. Referred to as the “receipt number” this number is assigned at the time the I-485 is filed. Note that the I-130, I-765, I-131 and I-485 forms all receive separate receipt numbers. (Often, all of these forms are filed simultaneously in adjustment cases). The withdraw letter should list both the I-130 and I-485 receipt numbers on it.

The first withdrawal letter should be sent to the same address where the I-485 was filed. Those addresses can be found here.

The second withdrawal letter should be sent to the local USCIS office with jurisdiction over the case. A complete list of USCIS field offices can be found here.

Conclusion.

Again, we strongly recommend that you consult an attorney if you are trying to withdraw a Form I-864. The financial stakes are potentially very high and it would be easy to make a mistake in seeking to withdraw the Affidavit.

 

How do I withdraw the Form I-864, Affidavit of Support?
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Sound Immigration

All Sound Immigration attorneys are members of the American Immigration Lawyers Associations. They practice immigration law exclusively, focusing on helping families start new lives in the United States.

This Post Has 29 Comments
  1. We were a joint sponsor for a gal who moved back to her home over seas for about a year, but now wants to return to the u.s. Is the affidavit of support still in effect when she comes back?

    1. Hi, Libby. As long as she has maintained status as a lawful permanent resident based on the I-864 – and as long as one of the 5 terminating conditions hasn’t been met – then it would remain enforceable.

  2. I was reading that the Sponsor only has to support the immigrant up to 125% of the Federal Government poverty level or $15,000. However, the immigrant is required to work per his/her skills and the sponsor is only responsible to meet the shortfall. That being said $15,000 is only minimum wage so it seems unlikely, unless the immigrant is incompetent or can not speak English at all, that they will require additional support.

    1. Remember that the sponsorship level depends on the immigrant’s household size. Also, the prevailing view in federal courts is that the “duty to mitigate” does not apply in these cases. So this proposition – “the immigrant is required to work per his/her skills and the sponsor is only responsible to meet the shortfall” – is actually inaccurate as a matter of law most places.

      1. Yes I am talking about a HH of 1. Her son hated the US and moved back to Mexico and is almost 18. She has still not gotten her Green Card and I was wondering if I can withdraw sponsorship at this point. We will have an interview soon but I obviously will not bet attending. I also wanted to know if she can get the Green card if I do not attend the interview. Should I write letters now to the Local and Federal Offices request my desire to withdraw sponsorship?

        1. As described in this article, you can withdraw the affidavit up until residency is granted. You should immediately communicate with the Field Office if you are wanting to withdraw.

          1. I wanted to thank you for your advice. Per your instructions, I went ahead on May 19 and sent a letter to the local and federal office. A week later I learned that my wife has an interview on June 19. I got a call last week from the Federal USCIS office saying that they received my letter and they will notify the local office, and my sponsorship will be withdrawn, and I will be absolved of any responsibility. Thanks again.

      2. I was referring to this article I read about an Appellate Court decision.

        The Naik court held that Form I-846EZ is a legally enforceable contract “against the sponsor by the sponsored alien” and that an action to enforce the contract can be brought “against the sponsor in any appropriate court.” Moreover, the Appellate Division held that the sponsor is not automatically required to support the sponsored immigrant at 125% of the federal poverty guidelines for the appropriate family unit size. Rather, the sponsor’s obligation is to pay any deficiency needed to reach the 125% level once the sponsored immigrant’s own income, assets and other sources of support are accounted for.

        According to this decision, a party does not have to support their ex-spouse beyond 125% of the federal poverty guidelines for their appropriate family size and must only pay the deficiency in order to meet the minimum floor. Id. at 398. The sponsored immigrant is expected to engage in gainful employment, commensurate with his or her education, skills training and ability to work in accordance with the common law duty to mitigate damages. Id. When the sponsor and sponsored immigrant are married, alimony, child support, and equitable distribution of income-producing assets must be included in the sponsored immigrant’s available support. Id. Thus, the Affidavit of Support is not enforceable if the sponsored immigrant’s income meets or exceeds the 125% poverty level.

  3. Feeling sooo stupid I have been Married to my husband 7 years now he overstayed the first 2 years of our marriage and went back home to Jamaica while his papers were being processed, I would go see him 2 times a year which it took immigration almost 4 years to finish all the paperwork we kind of grew apart.. he is here now 8 month as they issues him a green card since we were married so long…. well he has only been in the US legally 8 months and we are very miserable now I found emails of him talking to other women and some telling his friends that he really did not want to marry me because I can not have his kids, I am so depressed and don’t know what to do.

    1. Marcy, sorry to hear of the situation. Once a spouse has immigrated to the U.S. on a marriage-based visa (CR-1, IR-1), the underlying I-864 can no longer be withdrawn. You should consult with an attorney in your jurisdiction if you are concerned about a potential financial lawsuit by your spouse.

  4. I signed an affidavit of support for my new husband. He arrived to the united states and received a temporary permanent resident card. We are now getting a divorce. He has been in the states for a year next month. Is it to late to withdraw my affidavit of support?

  5. I guess mine is already too late. I petitioned my narcissistic father due to his manipulation all my life as a child. He’s finally here in the US and now threatening me that if I do not support him, he will sue me and will obligate me to support his adult self. I have a family of my own and I simply cannot understand why an adult person can burden another adult person because he just can? I would like to withdraw my affidavit of support. I am the child (US citizen), I petitioned my father. I shouldn’t have.

      1. I submitted green card application for my wife after we got married as required by K1 visa to get married within 90 days of arrival in US. We haven’t received interview date, and she is still waiting for working permit.

        I want to withdraw the application when I file for divorce, and my question is will the withdrawal of green card application cancel the I-864 I submitted for her during fiancee visa and on this green card application?

        1. From what I know, as long as green card hasn’t been issued yet, you can still have the I-864 to be withdrawn. It is not too late yet for you.

  6. Hello,
    I sent a certified letter to USCIS to cancel my affidavit of support. The case for his conditional green card is still pending. During the marriage i feel neglected. he sleeps in the living room on an air mattress. He has had several jobs since he received his work permit yet claims he owes it all out so he can’t help with the bills but can afford to purchase a car. he is mentally abusive in my mind. he constantly blames me for everything. he gives excuses that he doesn’t want to have sex with me because he is unhappy he doesn’t have a perm job. Now he is telling me he has proof that i cheated on him which i haven’t. one minute he says he will spoil me and the next minute he tells me i have to wait until he gets a perm job for him to help with the bills. after 16 months of marriage i have had my fill up it. can’t afford the rent to the location we are currently in alone…have major credit card debt because of it…have applied for another apartment but because it’s an hour away from where we currently stay he has on several occasions told me to let one of his cousins take over the rent payment so he can stay there and find a job. now that i have gotten the apartment and have told him i have sent in the letter to withdraw all of a sudden he says he wants to move with me.

    My question is, because either way i’m leaving him, can’t prove he married me for a green card, he was a visa overstay when I moved from NC to MD and meet him. Quick marriage after just 3 months. my 3rd marriage to a stranger at that. Anyway, the USCIS office is extremely slow. They still have our status as “Request for Additional Evidence Mailed” and it was delivered 3 months ago. What if they grant him his conditional card before process my request to withdraw the affidavit of support? Will i still be liable for him or since I tracked the letter and had it notarized can the approval – if he gets it- be overturned? Thanks.

      1. Maria FIND OUT how to cancel the I 864 before it’s too late. My husband entered an arranged marriage with a woman from Fiji. Upon her arrival to the USA he realized that she was very selfish and constantly demanded that he buy her new things, she argued with him a lot, she called him fat, she complimented the looks of his friends, she refused to do any house work etc etc etc. He finally grew tired of her and told her ” I don’t want to be with you anymore and I want a divorce” she flew into a rage and accused him of domestic violence. My husband was released from jail the same day and filed for divorce. She immediately turned around and sued him for FINANCIAL SUPPORT FOR TEN YEARS based on the I 864 Affidavit of support that he signed. She lost the case in family court but she appealed and won her case in San Francisco appeals court. My husband appealed and took her to Supreme Court but she won the case in Supreme Court. The Supreme Court told my husband that she DOES NOT HAVE TO WORK IF SHE DOESNT WANT TO and that she has a right to collect 1,256 a month every month based on the affidavit I 864 that he signed. So now my husband owes her thousands of dollars because it has been 4 years since they divorced AND SHE IS STILL SUING HIM for more money. And there are over 20 I 864 affidavit of support cases AND THE IMMIGRANT ALWAYS WINS!!! Here is a link to his case. Read it. http://www.courts.ca.gov/opinions/archive/A145181.PDF

        1. Wow Crystal, that is one hell of a lazy woman to put up with. Sadly, this I-864 is made to protect the interest of the US, so if someone like her does not want to work because she does not want to, the USA doesn’t want that burden but to be put on whoever petitioned her. Sadly, but I believe this tired affidavit needs to change. It’s shameful. If someone does not want to work, they need to be deported. Your husband can withdraw his citizenship, if hes only naturalized, that’s the only way I can think of to stop her suing him, if he’s no longer a citizen of USA.

    1. Please let me know if you had any luck getting yours removed before his paperwork went through! I am in the same boat as you, I desperately need to know how to remove mine too. I have endured enough too. I would be very grateful! Thank you!!

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