The Eleventh Circuit has held that the common law defenses of unclean hands, anticipatory breach,…
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. I 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 If the Affidavit is not correctly withdrawn then you will be bound by the contract.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
- Becomes citizen;
- Can be credited w/ 40-quarters of work;
- Abandons residency and departs U.S.;
- Is deported and gets new sponsor; or
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.
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 USCIS Adjudicator’s Field Manual explains it this way:
A person who has signed a Form I-864, I-864EZ or I-864A may withdraw the Form. If the person does so, USCIS will adjudicate the application for adjustment of status as if the withdrawn Form I-864, I-864A or I864EZ had never been filed. In an adjustment of status case, a withdrawal of the Form I-864, I-864EZ or I864A is not effective unless it is in writing and USCIS actually receives the withdrawal before the final decision on the adjustment application…
Adjudicator’s Field Manual § 20.5(h) (emphasis added). (USCIS is currently in the process of replacing the Adjudicator’s Field Manual with its new Policy Manual, but the Policy Manual provisions regarding withdrawing the I-864 have not yet been published).
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.
Again, I 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.