Affidavits of Support Trump Prenups

Erick Widman

While many couples decide to sign a prenuptial agreement before walking down the aisle, for international couples, a prenuptial agreement can raise additional questions. A common question is whether a prenuptial agreement can protect the US-citizen spouse from any obligation under the Affidavit of Support (also known as Form I-864) that is a mandatory part of the immigration process. Unfortunately, this is a complex question involving multiple issues. Even the state you live affects how the prenuptial agreement will be interpreted and enforced.

Impact of Prenuptial Agreements on Immigration

When US citizens sponsor their spouses’ immigration petitions, each couple has to file for a family-based immigrant visa, often referred to as a “green card.” Part of this process involves filing an Affidavit of Support, a document that establishes that the citizen has the ability to support the other party at a level at least above 125% of the poverty threshold until the applicant becomes a United States citizen. This responsibility remains in place in the event of divorce.

Individuals with prior debt or decent net worth may use prenuptial agreements to safeguard themselves and/or the spouse-to-be. The existence of a prenuptial agreement should be factored into considerations regarding immigration applications.

A Premarital Agreement Does Not Terminate an Obligation of Support

Under the US Constitution’s Supremacy Clause, Congress has “broad undoubted power over the subject of immigration and the status of aliens, stemming from its constitutional power to ‘establish a uniform Rule of Naturalization’ and from its ‘inherent power as sovereign to control and conduct relations with foreign nations’” (Arizona vs. United States, 132 S. Ct. 2492, 2500-01 [2012]). Therefore, neither a premarital agreement nor a divorce may terminate an obligation of support under USCIS Form I-864. In short, if you’re marrying a foreign spouse, you should expect that you may be bound by the Affidavit of Support, even if your spouse agrees to waive his or her rights under the Affidavit of Support or you have a perfectly-worded and executed prenuptial agreement in accordance with your state’s domestic relations laws.

Is a Prenuptial Agreement Legally Binding?

A prenuptial agreement becomes binding the moment it is properly executed and signed by both parties. Ideally, the prenuptial agreement’s execution would involve some degree of negotiation, both parties would be represented by their own attorneys, and it would be finalized with enough time before the wedding for the agreement to be considered mutually agreed-upon and not coerced. The Affidavit of Support, or Form I-864, becomes a legally binding contract when your spouse’s immigration application is granted and/or he or she is “admitted” to the United States.

What Exactly Is the I-864 Affidavit of Support?

Any person seeking admission to the United States as a family-sponsored immigrant must be the beneficiary of an Affidavit of Financial Support. Without an Affidavit of Financial Support, your spouse is considered inadmissible to the United States on the grounds that he or she could become a public charge. Even if your fiancée or spouse has plenty of income or assets of his or her own, you will be required to sign an Affidavit of Support to complete the immigration process. Your income and assets will be used to determine whether you meet a threshold of 125% of the federal poverty guideline. The Affidavit of Support warns sponsors that, “If you do not provide sufficient support to the person who becomes a permanent resident based on the form I-864 that you signed, that person may sue you for this support.”

How Can I End the Affidavit of Support Obligation? 

The I-864 contract creates a support obligation under federal law until one of the following five conditions can be shown to have occurred:

  1. The sponsored immigrant becomes a US citizen.
  2. The sponsored immigrant has worked or can be credited with working 40 qualifying coverage quarters (defined by the Social Security Act, 42 U.S.C. §413).
  3. The sponsored immigrant no longer has permanent resident (green card) status and has departed the US.
  4. The sponsored immigrant becomes subject to removal from the US but obtains a new adjustment of status grant.
  5. Either the sponsor or the sponsored immigrant dies.

Just under the listing of the circumstances that would terminate the obligation, the I-864 form specifically warns in bold print that divorce does not end the obligation of support: “Divorce does not terminate your obligations under this Form I-864.” Under federal law, neither divorce nor a premarital agreement terminates an obligation of support.

Courts have handled this issue in different ways. The Ninth Circuit recently addressed this issue in the Erler case (Erler vs. Erler, 824 F. 3d 1173, [9th Cir. 2016]). Relying upon case law established by the Seventh Circuit, the Ninth Circuit concluded: “Thus, under federal law, neither a divorce judgment nor a premarital agreement may terminate an obligation of support. Rather, as the Seventh Circuit has recognized, ‘[t]he right of support conferred by federal law exists apart from whatever rights [a] sponsored immigrant might or might not have under [state] divorce law’” (Liu v. Mund, 686 F. 3d 418, 419-20 [7th Cir. 2012] and Erler vs. Erler, 824 F. 3d 1173, [9th Cir. 2016]).

The Ninth Circuit and other courts across the country appear to have reached a consensus that an Affidavit of Support is enforceable even if a prenuptial agreement has been executed and is otherwise valid and enforceable. While parties may still negotiate this issue in a prenuptial agreement, the US-citizen spouse should recognize that there is no way to guarantee it will be enforceable, as the I-864 contract created under federal law would trump the prenuptial agreement.

How Should Couples Proceed with the Immigration Process?

US Immigration law is challenging and highly regulated, so working with the immigration lawyers of Passage Immigration Law is the best way to achieve your immigration goals. Your attorney will work to guide you through the process, answering questions and addressing problems as they arise. Our firm handles family-based immigration matters and more, and our goal is to provide individualized, personal service.

With offices in Portland, Oregon, Los Angeles, California, and Seattle, Washington, Passage Immigration Law provides assistance with your family-based immigration goals. If you or anyone you know would like assistance applying for family-based immigration, please call to schedule an appointment today at (503) 427-8243. Or, you can schedule a consultation here.

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