Understanding the Financial Obligation to Sponsoring a Spouse for a Green Card

The Affidavit of Support is a contract with the federal government to reimburse the government for any means-tested public benefits that the immigrant receives in the 10 years after the immigrant is awarded their green card (becomes a permanent resident).  The affidavit of support must be filed with immigration for the permanent residency application to be approved.  If the green card case is not approved, the active support is not binding on whoever signed it.  A U.S. citizen spouse or Lawful Permanent Resident spouse must make a certain income minimum on  a yearly basis to sponsor the immigrant and must produce proof of ongoing employment or sufficient assets as well as have filed the last three years of tax returns and be willing to produce at least the latest tax return to immigration.

The U.S. citizen sponsor is responsible for paying back the government if the immigrant ever applies for and receives public assistance currently in the form of AFDC (cash aid), and non-emergency Medicare, among others.  Means tested public benefits do not include social security, disability, or unemployment wages earned by the immigrant. The U.S. citizen or lawful permanent resident’s obligation to reimburse the Federal governments under the affidavit of support does not end if the couple legally separates or divorces..   The U.S. citizen sponsor is still on the proverbial hook for the remainder of the ten years. The only ways to avoid this obligation are:

1.  Naturalization of the immigrant (immigrant becomes a U.S. citizen; the earliest the immigrant becomes eligible for citizenship is 3 years after permanent residency grant, if still living in marital union with their spouse);
2. The immigrant has worked or is credited with forty (40) qualifying quarters under social security laws;
3. The immigrant permanently departs the U.S.; or
4. The immigrant dies.  

If the sponsor refuses to reimburse, a federal, state, local, or private agency can seek reimbursement from or file suit against the sponsor for all means-tested benefits provided to the immigrant.    

• Marital and prenuptial agreements may be a useful tool for U.S. citizen spouse sponsors to hold the immigrant responsible for any potential reimbursement scenario.  The immigrant may choose in the agreement to waive a right to alimony, property, a spouse’s savings or 401k or other affirmative benefit in exchange for the risk of the Affidavit of Support creates for the sponsor if the immigrant ever falls on hard times in the future. 
• The immigrant may also choose to set up a trust or separate account for use by the U.S. sponsoring spouse and pay into it now, while the immigrant is working and has the financial means to fund it, in exchange for the sponsoring spouse assuming the Affidavit of Support risk. Many couples do not involve agreements at all, believing the potentiality of the immigrant falling on public assistance is so remote that the risk is minimal. 

U.S. citizen or lawful permanent resident spouse petitioners can be worried about this financial obligation being used against them in family court proceedings if the marriage ever crumbles. The immigrant will not get far in introducing the Affidavit of Support as proof of the U.S. citizen spouse’s obligation to provide alimony or other means of support in a family dissolution or alimony proceeding or in settlement negotiations if the marriage later breaks down. The contract is limited to reimbursement of means tested public benefits only and cannot force a family court to order support.   Alimony and divorce agreements are the purview of State family courts, not federal immigration law.
Get Your Free Guide! Immigration Attorneys & You: How to Choose Between the Right One and Those You Should Run From by Attorney Heather L. Poole