I wrote a post back in April, which you can read here, where I talked about prenups and immigration. As promised here is the post on what a I-864 is and what it means for a prenup. Since I really can’t talk about the I-864 without talking about the I-134 as well you can read below to learn the difference.
The forms are for those sponsoring an immigrant family member or fiancé into the US who is applying for either an nonimmigrant or immigrant visa or adjustment of status to become a lawful permanent resident. The government wants the sponsor to basically “vow” that they will be financially responsible for their relative and that said relative won’t end up needing government assistance.
So what are the differences?
| Form I-864 Affidavit of Support | Form I-134 Affidavit of Support |
| Immigrant visa for family members or relatives, including a spouse. | Nonimmigrant visa, can be used for friends, family and a fiancé. |
| Legally binding, meaning if that you will support that relative or if they end up needing financial government assistance you will reimburse any government agency from which your relative claims assistance. | Generally unenforceable. |
| Obligation doesn’t end if separated or divorced. | Obligation ends when persons temporary visa ends |
| Obligation ends when the relative:
•becomes a U.S. citizen, •earns credit for 40 quarters of work in the United States, •leaves the U.S. permanently, or is removed or •dies. |
So what does all of this mean if you want a prenup?
Well in terms of the I-134 you can still have a prenup. The issue will arise if your fiancé turned spouse then applies for an immigrant visa and you sponsor them. Where the issues with the prenup come into play is with the I-864. It has been held that a prenup does not override the I-864 support obligation. Now the I-864 is a support obligation that is meant to keep the immigrant spouse at 125% of the federal poverty guidelines, which could be pretty small depending on the household size. $20,300, $25,525, and $30,750 for a household size of 2, 3, and 4 respectfully, based on the 2017 guidelines. Still money out of your pocket but it could be worse.
While you cannot prenup away your support obligation under the I-864 you can still have a prenup for other issues, such as property and businesses. As always your prenup must be fair and both parties should have an attorney.
The moral of this is don’t sign a I-864 or I-134 without knowing the full consequences of your actions. This issue more completed than this brief post so make sure you consult with an immigration and family law attorney.
