When interviewing a new client, it is imperative to inquire as to the client’s immigration status, the immigration status of the client’s spouse and children. If the client’s spouse was not a United States citizen at the time of marriage, further inquires should explore whether the client was responsible for his/her spouse’s immigration status in the United States. In order for a person to assist his/her spouse in securing an immigration status in the Untied States as a result of his/her marriage, the spouse will have to complete certain immigration forms for his/her spouse. One such form is known as the Affidavit of Support. In completing this form, the spouse is certifying that he/she will support his/her spouse if the immigration status requested is granted. The purpose of this certification is to ensure that by granting such immigration status, the applicant will not be dependent upon the United States government for support. Pursuant to 8 U.S.C.A. S1183a, this form creates a binding contract that imposed an obligation on the sponsoring spouse to ensure that the immigrant spouse has available support.
The execution of an Affidavit of Support while well intended could have negative consequences for that spouse if there is a divorce that later ensues.
What is the Affidavit of Support
An Affidavit of Support, known as form I864 or I864EZ, is a form that a spouse must complete when his/her spouse is seeking immigration status in the United States as a result of the parties’ marriage. Generally, in order to submit the Affidavit of Support, the sponsoring spouse must be domiciled in the United States. The Affidavit of Support is a document submitted to immigration whereby the sponsoring spouse provides an affidavit promising to support his/her spouse if the immigration status is granted. Not only is the sponsoring spouse making a commitment to support his/her spouse, but the sponsoring spouse must certify to his/her annual gross income. If the annual gross income does not exceed a certain threshold, then the sponsoring spouse must also disclose the amount of his/her assets. The sponsoring spouse is also required to provide a transcript of his/her federal tax returns for the last year that said return was filed. If the minimum financial threshold was not met, then the sponsored spouse also has to submit details regarding his/her assets.
By signing the Form I-864, the sponsoring spouse is making a commitment to support the supported spouse. Specifically, the Affidavit provides:
If you sign Form I-864 on behalf of any person (called the intending immigrant) who is applying for an immigration visa or for permanent residence, and the intending immigrant submits Form I-864 to the U.S. Government with his or her application for an immigrant visa or adjustment of status, under INA section 213A, these actions create a contract between you and the U.S. Government. The intending immigrant becomes a lawful permanent resident is the consideration for the contract.
Under this contract, you agree that, in deciding whether the intending immigrant can establish that he or she is not inadmissible to the United States as a person likely to become a public charge, the U.S. Government can consider your income and assets as available for the support of the intending immigrant.
What is the Significant of An Affidavit of Support In The Event of A Divorce
If a spouse was awarded an immigration status as a result of the sponsoring spouse’s Affidavit of Support, that sponsoring spouse has entered into a contract with the United States Government promising to support the sponsored spouse. That contract is not terminated when a party files for divorce. Rather, a sponsoring spouse continues to have the obligation to support the sponsored spouse consistent with the terms agreed to in the Affidavit of Support,
While there is a promise to support that continues in a matrimonial matter, the amount of the promise and the duration of the promise is limited.
The Affidavit of Support obligates a sponsor to ensure that the sponsored immigrant’s income meets or exceeds 125% of the federal poverty guidelines for their household size. However, the prevailing opinion, which has also been adopted by the New Jersey courts, is that the sponsor is not required to pay 125% of the federal poverty line, but rather, must consider income and make up the difference.
Given that the federal poverty guideline represents such a nominal sum, it often results in a de minimis amount of support when it is applied.
For example, in 2024, the federal poverty guidelines were as follows:
- For a household of 1, the poverty guideline is $14,580, 125% of which is $18,225;
- For a household of 2, the poverty guideline is $19,720, 125% of which is $24,650;
- For a household of 3, the poverty guideline is $24,860, 125% of which is $31,075; and
- For a household of 4, the poverty guideline is $30,000, 125% of which is $37,500.
In Naik v Naik, the Court addressed “the enforceability and amount of support that must be paid by the signer of an immigration Affidavit of Support [], pursuant to § 213A of the Immigration and Nationality Act (INA), 8 U.S.C.A. § 1183a.” Naik v. Naik, 399 N.J. Super. 390, 398 (App. Div. 2008).
In a case of first impression, the Appellate Division, determined that: (1) The Court found that “when the obligation created by the Affidavit of Support is against a resident or for the benefit of a New Jersey resident, it may be enforced in the Superior Court of New Jersey. When the action involves, as it does here, a claim between spouses, it should be enforced in the Family Part by the sponsored immigrant. See R. 5:1–2(a).” ; and (2) that the obligor should not be bound to provide support for the obligee at “125 percent of the Federal Poverty Guidelines for the appropriate family unit size” but rather, the Court should first consider the individual’s own income as well as any child support, alimony and equitable distribution of income producing assets, available to the obligee. The court should only consider Form I–864EZ support if the sponsored immigrant’s sources of support fall below 125 percent of the Federal Poverty Guidelines for the family unit size, and they should be compelled to pay the difference. Unlike in a normal support award, the amount of Form I-864EZ support will change on an annual basis when the United States Department of Health and Human Services (“HHS”), releases that years poverty guidelines. In applying that standard to the matter before them, the Court noted that the statutory level in 2006 when the judgment was entered was $12,250 for a one-person family unit and itemized the level of support for 2007 and 2008. The Appellate Division remanded the matter for a determination if the wife’s available income in those years exceeded the statutory amount, if not, the husband would be obligated to pay the deficient amount.
The Court in Naik established that the duty may be applied retroactively if the circumstances of the case require it, with the guidelines from each relevant year being applicable rather than the guidelines in effect at the time of the court’s order. In applying this method, the Appellate Division ordered the trial court to determine what the guideline amount was in the year that the Judgment of Divorce was entered, which raises the question, if a separation period should also be considered? Arguably, as the duty to support attached at the time the sponsor submits Form I–864, the availability of support during an extended period of separation should be evaluated as part of the final resolution of the case.
Further, the court in Naik explicitly directed the trial court to examine each year that had lapsed before its decision and consider the guidelines for those years. This therefore begs the question of whether in practice, a set amount of support cannot be determined under the terms of a Marital Settlement Agreement as it must be recalculated each year? In order to address this concern, the support should be recalculated annually, with consideration given to the sponsored individual’s other income, to ensure compliance with Affidavit of Support’s requirements.
The case of Choudry v Choudry involved the conflict that arises when a support order that is predicated on one party’s contractual obligations pursuant to 8 U.S.C.A. § 1183a (Form I–864) and the other party claims that the amount exceeds the allowable percent that may be garnished pursuant to 15 U.S.C.A. § 1673(a)(2). Choudry v. Choudry, A-4476-11T4, 2013 WL 3811758, at 2 (N.J. Super. Ct. App. Div. July 24, 2013).
Therein, the husband acknowledged his contractual obligation to provide a certain level of support for the wife pursuant to 8 U.S.C.A. § 1183a; however, he contended that the amount he would be obligated to pay violated 15 U.S.C.A. § 1673(a)(1), which sets a twenty-five percent maximum limit on garnishments from “aggregate disposable earnings”, and thus, may not be enforced. Choudry, supra, at 2. In rejecting the husband’s position, the Appellate Division cited to subsection (b) which provides the following relevant exceptions to (a)(1):
(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed—
(A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual’s disposable earnings for that week; and
(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week;
except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.
[15 U.S.C.A. § 1673(b)(2).]
The Court noted that the husband incorrectly argued that the allowable garnishment amount should be limited to twenty-five percent of his available income and incorrectly shifted the burden of determining the appropriateness of the garnishment amount to the Family Court. Id. In doing so, the Appellate Division clarified that “[h]is employer [not the Family Court] is required to apply the applicable federal and state statutes in determining the amount it withholds from his wages to satisfy the garnishment order.” Choudry, supra, at 2.
Variables to Consider to Determine the Difference
The Court in Naik, discussed how the court should first consider the individual’s own income as well as any child support, alimony and equitable distribution of income producing assets, available to the oblige. The Court in Naik was clear to specify that only income producing assets could be considered for the purposes of determining whether the sponsored immigrant meets the poverty guideline. Therefore, arguably, even if a party receives a generous asset award in equitable distribution, if the assets are not income producing, they cannot be considered.
Additionally, while a sponsored immigrant’s own income can be applied against the poverty line, courts of other states have found that the sponsored immigrant has no duty to mitigate damages. Meaning, the courts found that they do not need to find a job and that the court will not impute income to the supported spouse.
In Liu v Mund, the Wife was awarded $500 per month in spousal support in a State Court matter, which was conditioned on the Wife demonstrating her attempts to find employment but did not make an effort to do so.. Liu v Mund 686 F.3d 418, 422 (7th Cir. 2012) Thereafter, the Husband refused to comply with his support obligation citing that the Wife had not attempted to find employment. She filed a claim against the husband in federal court seeking support pursuant to the Affidavit of Support the Husband signed. The District Court found that her failure to seek work did not preclude her right to support. In rejecting that finding, the Circuit Court cited the excluding conditions in the Affidavit and noted that a “failure to mitigate”, is not included on that list. Id. at 422. Thus, although the fact that the Wife had not sought work was “well supported” it was insufficient to relieve the Husband of his obligation under the Affidavit of Support. Id. at 423. Importantly, the Justice Department’s Office of Immigration Litigation filed an amicus curiae requesting that the Court “read a duty of mitigation into the form” arguing that, inter alia, failure to impose a duty would be unfair and would “discourage the legislative goal of promoting ‘self sufficiency’ of immigrants.” The Court found the Justice Department’s arguments unavailing and noted that although self sufficiency is a goal, the salient goal of the legislation is to “prevent the admission to the United States of any alien who ‘is likely at any time to become a public charge.’” This is different than the consideration given by the family court when determining support as the earning ability of the supported spouse is one of the considerations in determining the support to be awarded to that spouse for both alimony and child support. Specifically, N.J.S.A. 2A:34-23 (5), provides that in ordering alimony, “the court shall consider … [t]he earning capacities, educational levels, vocational skills, and employability of the parties.”
While the issue of whether a supported spouse has an obligation to mitigate differs in state and federal court, the amount of support awarded under a family law state court matter will likely be much greater than the amount of support awarded under a federal court matter pursuant to an Affidavit of Support.
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When Does the Duty To Support Terminate?
Part E on Form I–864 does provide an end date for the obligation to support. Specifically, it states as follows:
When Will These Obligations End?
Your obligation under a Form I-864 that you signed will end if the person who becomes a lawful permanent resident based on that affidavit:
- Becomes a U.S. citizen;
- Has worked, or can receive credit for, 40 quarters of coverage under the Social Security Act;
- No longer has lawful permanent resident status and has departed the United States;
- Is 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
Absent the terminating circumstances, the obligations under the Form I-864 Affidavit of Support become enforceable once the sponsored immigrant obtains permanent residency (greed card) or adjusts their status to that of a lawful permanent resident. The sponsor can only withdraw the affidavit if they do so before they obtain permanent residence or status is adjusted. Once that occurs, then essentially, the promise to support has been relied upon in granting the immigration status and thereafter, only one of the specified conditions detailed above can terminate the obligation. As it applies to family law matters, it is important to note that a K-1 (Fiance Visa) is a temporary status, which requires the applicant to adjust their status to a CR-1 Visa (Spouse Visa) within a specified period of time after their arrival.[1]
Waiving the Obligation
Most courts are in agreement that the obligation that is created under the Form I-864 cannot be waived by a prenuptial agreement as the contract created by the Affidavit of Support is a legally enforceable contract between the sponsor and the U.S. government, which is enforceable by the applicant as well. As such, it cannot be nullified by a private agreement.
In the case of Erler v. Erler, the Ninth Circuit Court of Appeals concluded that the Form I-864 is not modifiable by a state or private agreement. Erler v. Erler 824 F.3d 1173 (9th Cir. 2016) In Erler, the parties entered into a prenuptial agreement in which both parties waived their entitlement to support in the event of a divorce. After the parties separated the wife sought enforcement of the Affidavit of Support when the husband refused to provide any support for the wife citing, among other things, the prenuptial agreement. The Circuit Court affirmed the District Court’s finding that the prenuptial agreement entered into between the parties could not modify the agreement the Husband had with the government.[1]
[1] Although the District Court correctly determined that the prenuptial agreement did not sever the Husband’s support obligation under the Affidavit of Support, the Circuit Court found that it erroneously applied the income earned by the Wife’s son, with whom she was living, to relieve the Husband of his obligation. The Court reasoned that imputing the son’s earnings (which exceeded 125% of the poverty threshold for a household of two) to the Wife would compel the Husband to maintain both the Wife and her son if the son were to lose his job. While acknowledging the limited case law on the subject, the Court concluded that, for the purposes of an Affidavit of Support, the household size should as of the time the application was made for the individual the sponsor intended to support.
Conclusion
In sum, while the execution of an Affidavit of Support does create a contractual obligation for the payor spouse to support the payee spouse, the amount of the obligation and duration are both limited. The amount is limited to 125% of the poverty line and that amount is reduced by the payee spouse’s income. This threshold, however, is the minimum of the obligation. The family court can and should apply the alimony factors in determining the amount and duration of alimony in a matrimonial matter.
[1] Sheryl J. Seiden, Esq. is a partner at SeidenFreed, LLC, which has offices in Northern and Central New Jersey. She is admitted to practice law in both New Jersey and New York. She is a trustee of the NJSBA and the President of the American Academy of Matrimonial Law, New Jersey Chapter. She is a fellow of the International Academy of Family Lawyers. She is a former Chair of the Family Law Section of the NJSBA. Sheryl dedicates her practice to both litigation and serving as a mediator, arbitrator and parenting coordinator in family law matters. The author thanks Kaitlyn McCracken, Esq., an associate at SeidenFreed, for her contributions to this article.
[2] An Affidavit of Support is not required for a Visa for temporary status – such as a Fiancé Visa – however, once the applicant seeks to adjust that their status to a permanent resident Spouse Visa, they will need to submit and Affidavit of Support.
[3] Although the District Court correctly determined that the prenuptial agreement did not sever the Husband’s support obligation under the Affidavit of Support, the Circuit Court found that it erroneously applied the income earned by the Wife’s son, with whom she was living, to relieve the Husband of his obligation. The Court reasoned that imputing the son’s earnings (which exceeded 125% of the poverty threshold for a household of two) to the Wife would compel the Husband to maintain both the Wife and her son if the son were to lose his job. While acknowledging the limited case law on the subject, the Court concluded that, for the purposes of an Affidavit of Support, the household size should as of the time the application was made for the individual the sponsor intended to support.