Ante-Nuptial Agreement does not Eliminate Obligations under Affidavit of Support
In order to petition for and sponsor an immigrant for a U.S. permanent residency (Green Card), the U.S. citizen or permanent resident petitioner must show his/her financial readiness and ability to support that intended immigrant. The petitioner does this by completing and filing a Form I-864, Affidavit for Support along with the application for adjustment of status with the US Citizenship & Immigration Services (USCIS). This provision ensures that the petitioner has an adequate means of financial support and therefore the beneficiary (intended immigrant), is not likely to rely on the U.S. government for financial support.
Recently, the U.S. District Court of Maryland ruled that an ante-nuptial agreement is irrelevant to the agreement of a signed Form I-864, meaning that the petitioning spouse may still be financially responsible even if the couple had previously signed an agreement waiving their right to alimony.
In this case, the Plaintiff, Ms. Toure Davis, a non U.S. citizen, and Defendant, Mr. Davis, a U.S. citizen, signed an ante-nuptial agreement. Paragraph 9 of this agreement provided that “[i]f the parties separate from one another at any time following their marriage, for any reason, it is their mutual desire that each shall maintain and support himself or herself separately and independently from the other. Accordingly, each party releases and discharges the other, absolutely and forever, for the rest of his or her life, from any and all claims and demands for alimony or support, excluding child support, either pendente lite or permanently. This Agreement is not subject to modification by any court.”
After marriage, Ms. Davis began the application process to obtain an immigrant visa and, eventually, Legal Permanent Resident status. As part of the process, Mr. Davis signed a Form I-864 affidavit of support for his wife. Ms. Davis was granted Lawful Permanent Residency (Green Card) but eventually, the marriage fell through and Ms. Davis alleged that her husband violated and continued to violate his obligation to adequately support her financially, per the agreed upon obligation, when he signed the Form I-864. She argued that even assuming the ante-nuptial agreement remains valid despite the entry of the divorce decree, the Form I-864 remains a valid and executable contract between Ms. Davis and her ex-husband, thus still making him financially responsible to provide her of any support necessary to maintain her at an income that is 125 percent of the Federal Poverty Guidelines for her household size.
The courts agreed with Ms. Davis, finding that it would “undermine the purpose of the statute to allow sponsors to present an I-864 to immigration authorities that can never be enforced by the sponsored alien due to a prenuptial [or ante-nuptial] agreement that is not disclosed to immigration authorities. Congress determined that for an I[-]864 to be valid at all, the sponsored alien must be able to enforce it at the time when it is submitted to the United States.” The court reasoned, the Affidavit of Support is a contract between the sponsor and the U.S. Government and the obligation under it is separate and apart from obligation of support under Maryland law or right to support waived by the parties via agreement. In other words, a prenuptial agreement signed prior to or after filing the foreign national’s green card does not prevent the foreign national from suing the US citizen ex-spouse for support based on the I-864.
This case highlights the importance of petitioner’s obligations to support the intended immigrant under the provisions of the law and one should not sign the affidavit of support without first understanding the obligations it creates. The only time a person is free from the obligation to support the person is, if the intended immigrant:
- Becomes a U.S. Citizen;
- Has worked, or can be credited with, 40 quarters of coverage under the Social Security Act;
- No longer has lawful permanent resident status and has departed the United States;
- Becomes subject to removal, but applies for and obtains in removal proceedings a grant of adjustment of status based on a new affidavit of support, if one is required; or
- Dies.