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Prenuptial Agreements and I-864 Affidavits of Support

Any alien who seeks to become a legal permanent resident (LPR) of the United States as an immediate relative or family preference immigrant is inadmissible if he or she is likely to become a public charge. To prevent the likelihood that an LPR would require public assistance and thus, became a public charge, the U.S. Citizenship and Immigration Services (USCIS) makes the sponsor/petitioner ("sponsor") the LPR's financial guarantor through a contract - Form I-864 Affidavit of Support ("Affidavit").

The Affidavit is a contract between the sponsor and the government requiring the sponsor to provide whatever support is necessary to maintain the sponsored immigrant at an income that is at least 125% of the federal poverty guidelines for his or her household. By the terms of the contract, if the sponsor fails to support the LPR, and the LPR obtains debt or requests financial assistance from the government, the government may sue the sponsor for reimbursement.

Further, the sponsor agrees that this obligation will continue until the sponsored individual:

  • No longer has lawful permanent resident status, and has departed the United States;
  • Becomes a U.S. citizen;
  • Has worked, or can be credited with, 40 quarters of coverage under the Social Security Act;
  • Becomes subject to removal, but applies for and obtains in removal proceedings a new grant of adjustment of status, based on a new affidavit of support, if one is required; or
  • Dies.

The death of the sponsor also terminates the obligation, meaning that the sponsor's estate will not be responsible for the LPR's support going forward. However, if there is an unpaid support obligation at the time of the sponsor's death, the estate may be responsible for that.

The I-864 itself explicitly states that divorce does NOT terminate support obligations under the agreement. But what happens if the parties have signed a prenuptial agreement in which financial support such as alimony is waived?

Can an Immigrant Waive Rights Under I-864 in a Prenup?

There has been some disagreement among federal district courts in recent years about whether a prenuptial agreement can waive the obligations to which a sponsor consents by signing the I-864 Affidavit of Support. However, a recent case in the Fourth Circuit suggests that a prenuptial agreement may not waive the requirement of support created by Form I-864.

In the case of Toure-Davis v. Davis, Civil NO. WGC-13-916, 2014 U.S. Dist. LEXIS 42522 (D.Md., March 28, 2014), the United States District Court for the District of Maryland held that:

"[T]he Form I-864 is a contract between the sponsor (in this case, Defendant) and the U.S. Government. 8 C.F.R. § 213a.2(d). This obligation of support, imposed by federal law, is separate and apart from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement."

In arriving at this decision, the Court noted that in this particular case the Defendant (sponsor spouse) had signed the Form I-864 after signing the prenuptial agreement, and thus, the prenuptial agreement was invalid because one cannot waive an obligation that does not yet exist. More importantly, even if the prenuptial agreement was valid, when the sponsor agreed to pay spousal support in the separation agreement, any prohibition on the parties to demand alimony or support as agreed to in the prenuptial agreement was waived by the sponsor's actions.

The lesson here for prospective sponsors is that even the best-drafted prenuptial agreements may not offer a guarantee of protection from the requirement to support an immigrant relative if not properly executed. Additionally, in any subsequent court proceeding involving financial support of the LPR, any offer to resolve the matter should be considered in light of how it might affect the terms of the Form I-864 Affidavit of Support and any agreement the parties may have entered into to waive the terms of the Affidavit.

If you are contemplating sponsoring a foreign-born spouse, fiance, and/or their children, it is advisable to consult with an attorney experienced in both Maryland family law and federal immigration law. If you have questions or concerns about how signing an I-864 Affidavit of Support affects your rights or obligations, contact Howard County, MD immigration lawyer Van T. Doan as soon as possible.