Sep 22, 2013

Special Considerations When Marrying a Non-U.S. Resident

When an American citizen marries a non-U.S. resident, special focus must be given to the obligations upon the citizen which may arise in connection with the marriage solely due to the immigrant status of the fiancé/spouse.Federal law prohibits the admission into the United States of any alien who is likely to become a public charge. Accordingly, a citizen wishing to marry a non-U.S. resident must submit an “Affidavit of Support” – known as Form I-864 – at the time the fiancé/spouse adjusts status to that of a permanent resident (commonly known as obtaining a “Green Card”) after coming to the United States. Thus, through this process, the citizen enters a binding agreement with the government to become the financial “sponsor” of the fiancé/spouse so that he or she may come to live here permanently. This process establishes that the immigrant has adequate means of financial support and will not likely rely on the U.S. government for such support. The sponsor must show that he or she has enough income and/or assets to maintain the immigrant and the rest of the household at 125% of the Federal Poverty Guidelines.The instructions which accompany Form I-864 make it perfectly clear that it “is a contract between a sponsor and the U.S. Government,” and that by signing the form, the sponsor is “agreeing to use [his or her] resources to support the intending immigrant named in this form, if it becomes necessary.” The instructions further warn that submission of Form I-864 “may make the sponsored immigrant ineligible for certain Federal, State or local means-tested public benefits,” as such agencies will consider the resources and assets of the sponsor in determining the immigrant’s eligibility for the program. If, however, the immigrant does ultimately receive public means-tested benefits, the instructions further clearly warn that the agency providing such benefits may request that the sponsor repay the benefits, and may thereafter sue the sponsor for the costs of the benefits if no repayment is voluntarily made. Indeed, case law has established that by signing Form I-864, the sponsor submits to the personal jurisdiction of any federal or state court having subject matter jurisdiction of a civil lawsuit to enforce its provisions.The financial obligations of the sponsor continue until one of five terminating events occurs: (1) the sponsor dies; (2) the sponsored immigrant dies; (3) the sponsored immigrant becomes a U.S. citizen; (4) the sponsored immigrant permanently departs the U.S.; or (5) the sponsored immigrant is credited with 40 qualifying quarters of work in the U.S.Significantly, divorce is not a condition under which the sponsor’s obligations under Form I-864 are terminated. Not only does Form I-864 operate as a contract between the sponsor and the Government, but courts have consistently held that it also is a legally binding and enforceable agreement between the sponsor and the immigrant. Accordingly, he or she may sue the sponsor for enforcement of the Affidavit of Support and seek damages that would place the immigrant in as good a position as he or she would have been in had the contract for support been performed, i.e. to maintain the immigrant at 125% of the Federal Poverty Guidelines. Although sponsors have argued that Form I-864 constitutes an unconscionable adhesion contract, courts have rejected such arguments on the basis that sponsors receive a substantial benefit from entering into the contract: gaining the spouse permanent resident status. Further, courts have declined to impose a duty on sponsored spouses to mitigate damages.In sum, any U.S. citizen contemplating marriage to a non-U.S. resident must be fully informed of all consequences flowing from the signing of Form I-864 and becoming a sponsor.

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