You met on a warm sunny beach in an exotic country and now want your soulmate to join you in the United States . . . but obviously you want a prenup to protect yourself. Will your prenup protect you from having to support your immigrant spouse if something goes wrong?
Many are not aware that since 1996, the U.S. requires all immigration petitioners to promise they will pay financial support to certain classes of foreign nationals. The way the government required support is guaranteed is the famous, Form I-864, Affidavit of Support.
Most family-based immigrants and some employment-based immigrants use Form I-864 to show they have adequate means of financial support and are not likely to rely on the U.S. government for financial support.
The form requires you to promise to maintain the intending immigrant – your new wife or husband – at 125% of the Federal Poverty Guidelines (“Poverty Guidelines”) and to reimburse government agencies for any means-tested benefits paid to the noncitizen beneficiary.
But what if you and your future spouse waive this support in a prenuptial agreement and want to waive the support requirements?
Florida Prenuptial Agreements
I’ve written about prenuptial agreements before. Prenuptial agreements, or prenups, are agreements you sign with your fiancé before marriage that outline how you two would end up in case of divorce or death.
A prenup can resolve things like alimony, ownership of businesses, title of properties, and for purposes of this post, spousal support and alimony. There are many other concerns that can be addressed in the prenup:
- Caring for a parent
- Going back to school
- Shopping habits
- Credit card debt;
- Tax liabilities;
- Alimony and child support from previous relationships; and
- Death or disability
A few of the points of a prenup, is that you get to decide on the amount of alimony, the terms of support, or whether you will pay any alimony at all. Or can it? Because prenuptial agreements can limit how much alimony you pay, you might think that you are safe if you sign Form I-864. You might be wrong.
Building a Prenuptial Wall
The I-864 form is required in all cases where a U.S. citizen or permanent resident has filed an immigration petition for a foreign family member including for a spouse. The form is a serious concern for anyone signing a prenup.
Why? Because whether you can even may enter into a prenuptial agreement that waives a sponsor’s duties to a non-citizen-beneficiary under the I-864 is an open question in courts.
Some courts have held that prenuptial agreements which waive I-864 rights are unenforceable, while other courts have enforced the waiver in prenuptial agreements over the I-864 form. There is a split among courts.
The split decisions between different courts about the right to waive I-864 support rights creates a lot of uncertainty into whether a sponsor and beneficiary spouse can waive enforcement of the I-864.
Are a beneficiary’s I-864 rights in the nature of private rights under a contract, or would allowing waiver of I-864 enforcement allow an end-run around an important public policy?
The law is not as well settled as we lawyers like. If you are thinking about marrying a foreign national and residing in the United States, you are not alone. About 7% of U.S. marriages involve one or more foreign-born spouse.
Information about form I-864 is available here.