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March 11, 2022 Feature

Beyond 90 Day Fiancé: The Impact of U.S. Immigration Form I-864 Affidavit of Support in State Family Court Cases

By Judge Stephanie Domitrovich

Television reality shows such as 90 Day Fiancé score high ratings with viewing audiences. A summer spinoff of 90 Day Fiancé was touted as “the most watched non-news show on cable TV last week, adding to years of strong viewership for the immigration-focused reality dating show.”1

The television show 90 Day Fiancé focuses on actual couples, one of whom is a U.S. citizen and the other of whom is a non-U.S. citizen. Each couple is seeking a permanent relationship with each other, perhaps like Hallmark movies with a twist. The show uses cameras that follow couples wanting to marry but who are engrossed in myriad relationship and immigration issues. But unlike Hallmark-themed movies, most of these couples develop their own plots of unhappy relationships that eventually end, and end badly.

The couple, after interacting virtually with each other regularly on the internet for months or perhaps years, then get together and face the challenges of in-person interactions. The couple may have their first in-person meeting, typically at an airport, and then their lives together flourish (or fizzle) from there. If the couple decides to reside in the United States (some couples choose another country), U.S. law requires them to marry within 90 days of arriving in the country. Throughout the 90-day period, each couple struggles over diverse personalities as well as financial and cultural clashes. Challenges and “hiccups” surface after partners have invested significant time, energy, and resources. Seeking approval, couples face doubting relatives and friends who caution about the false hope of love with a non-U.S. citizen who, they believe, just wants to become a U.S. citizen.

In a previous time, romantic interactions between U.S. citizens and non-U.S. citizens were less complicated than today’s reality television adventures. My mother, Helen, arrived here from Greece in the early 1950s when she was 17. She came to the United States because her father, John Pappavasillion, a Greek citizen, had voluntarily and honorably served in the U.S. Army during World War II. Years later, when my mother worked at a local laundry in the United States, she would take her lunch breaks at the Happy Days–like diner next door owned by a young man named Steve Domitrovich (my father). Steve bought his diner with his G.I. Bill monies after his military service in World War II. Their romance blossomed over milkshakes and songs on the juke box at the G.I. Dari Mart. They dated for many months. When Steve heard my maternal grandfather was bringing a competing suitor to the United States from Greece to marry Helen, my father proposed to marry my mother, and they quickly got married without a “hitch” in the United States. The diner evolved into their convenience store bearing both of their initials, that is, H & S Dari Mart. Their lives together really did resemble a Hallmark movie theme.

My mother is now 92 years old and has fond, crisp memories of becoming a U.S. citizen and getting married in a whirlwind. She recounts her immigration paperwork was minimal and the emphasis was on learning to speak English. She still recalls how nervous she was in 1955 when appearing before the “nice” federal naturalization judge. As she responded in English to his questions, the judge smiled. He told my mother not to worry and assured her that her use of the English language was sufficient to gain U.S. citizenship. He then congratulated and welcomed her as a U.S. citizen.

However, “those were the days.” Given changes in the two-plus generations that have followed, couples now prepare and sign voluminous immigration paperwork. One such form is particularly notorious: “USCIS Form I-864 Affidavit of Support Under Section 213A of the INA Department of Homeland Security U.S. Citizenship and Immigration Services.” The Form I-864 Affidavit of Support is 10 pages long, accompanied with 17 pages of official instructions and related required immigration paperwork. Legal issues have evolved from the signing of this affidavit for the parties as well as the courts.

The law clearly recognizes provisions in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that mandate U.S. citizen sponsors sign Affidavits of Support. Procedurally, with couples, the non-U.S. citizen must obtain K-1 status (sometimes called “a fiancé visa”), and the couple is then required to marry each other within the non-U.S. citizen’s 90-day stay. If no marriage results, the non-U.S. citizen can be considered out of status after 90 days and subject to deportation. If the couple does marry within the 90-day stay, the Affidavit of Support contains contractual promises by the U.S. citizen to support the non-U.S. citizen. The intent is to avoid having the non-U.S. citizen impoverished and dependent on federal or state government financial assistance without a responsible reimbursement representative, the sponsoring U.S. citizen spouse.

The Affidavit of Support is “intimidating” in that significant responsibilities are undertaken by the sponsor when signing and completing the affidavit. Among many other things, by signing the affidavit, the U.S. citizen sponsor agrees and promises to “[p]rovide the intending immigrant [the non-U.S. citizen spouse] any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size” and to “[n]otify U.S. Citizenship and Immigration Services (USCIS) of any change in your address, within 30 days of the change, by filing Form I-865.”2 The intent is to have immigrants become self-reliant or at least dependent on those other than the government.

In essence, the U.S. citizen becomes financially responsible to support the non-U.S. citizen for life (and, as relevant here, long after a marriage may end by divorce). The obligations of a sponsor do not end until the non-U.S. citizen spouse (1) becomes a U.S. citizen, (2) has worked or can receive credit for “40 quarters of coverage under the Social Security Act,” (3) no longer has lawful permanent resident status and has departed the United States, (4) becomes subject to removal but applies for and obtains an adjustment of status, or (5) dies.3 These affidavits are binding and enforceable in a wide spectrum of topic areas, including federal court procedure, state court preemption, family court, immigration, public benefits, and Social Security law.4

Reality television neglects to present the serious nature and effect of the Affidavit of Support as a contract on the future of a couple. The duties under this affidavit cannot be waived through a prenuptial agreement, and divorce cannot terminate the sponsor’s obligations to the other spouse. The sponsor may not have been fully informed of ongoing responsibilities that arise from signing the affidavits, whether or not the marriage succeeds. Immigration lawyers have been blamed for not fully cautioning their clients about the obligations and consequences resulting from signing an affidavit. Moreover, after the immigration process is concluded, immigration law practitioners “have little incentive to remain engaged with future family law consequences of a document that they have put into play, and thus many immigration attorneys remain woefully unprepared to discuss the lasting implications of the document with their clients.”5 Lawyers should advise clients considering whether to sign an affidavit that the other party could choose to quit a job and in turn sue the sponsor for support.6

If the person sponsored receives government financial assistance, the federal and state governments can seek monetary reimbursement from the sponsor for assistance provided. Sponsors cannot evade these obligations by relocating. If a sponsor fails to update the home address within 30 days of moving, that sponsor could be assessed fines from $250 to $2,000. Another fine of $5,000 could be assessed against a sponsor who is aware the other person has collected any needs-based federal or state public benefits. But the ongoing obligations also can include significant financial obligations for an ex-spouse for a very long time.

Federal and state courts agree these Affidavits of Support create binding, enforceable contracts between the sponsor and the federal government and with the non-U.S. citizen as a third-party beneficiary. Either the government or non-U.S. citizen can sue the sponsor if the sponsor fails to provide adequate support. However, federal and state courts differ on how these contracts are enforced, with complicated and varying outcomes depending on the jurisdiction. This divergence is particularly acute in family court matters in state courts.

Various state courts and lawyers struggle with applying these affidavits, especially in family court matters. Whereas immigration law practitioners are familiar with Affidavits of Support as required documents in immigration procedure, family law practitioners and judges are not as familiar in applying affidavits in family law cases. Understanding the force of these affidavits is paramount, particularly given they have gained “increasing importance . . . in resolving support issues in immigrant families, sometimes decades after the act of immigration is complete.”7 A hypothetical illustrates this complexity:

Imagine a spouse who can sue his or her former spouse for support every year until either dies. Imagine the suing spouse bringing an action in state court and, if unhappy with the outcome, moving to federal court for a new lawsuit for support, and then going back to state court to sue, yet again, for the following year’s support.8

With “millions of affidavits of support now in effect and litigation on the rise, awareness of the practical and strategic implications is overdue.”9 Yearly, “more than half a million sponsors enter into a contract with the United States Government.”10 As a contract, consideration for these affidavits “is almost entirely speculative and unknown.”11 And the duties and obligations of a sponsor “are indefinite and may be subject to change by the Government after signing.”12 Yet these affidavits are regularly signed by sponsors without the assistance of or review by competent counsel as “obligations created under this form are ‘mighty.’”13

A Presidential Memorandum issued on May 23, 2019, requires federal agencies to enforce these affidavits against sponsors in order to protect federal taxpayers and enforce immigration laws. The memorandum states: “If the sponsored immigrant receives any federal means-tested public benefits, the sponsor will be expected to reimburse the benefits-granting agency for every dollar of benefits received by the immigrant.”14 And federal officials are required to remind sponsors of their responsibilities as a result of signing these affidavits. The affidavits also may have significant relevance in family court proceedings, as evidenced by federal and state cases.

An example of a federal case that shows strict enforcement of this affidavit by the Seventh Circuit is Wenfang Liu v. Mund.15 Timothy Mund, a U.S. citizen, and Wenfang Liu, a Chinese citizen, were married in China. Two years later, they wanted to move to the United States. After Mund signed the Affidavit of Support, Liu became a permanent U.S. resident with Mund agreeing to support Liu at 125 percent of the poverty level (about $13,500 a year), even if they divorced. Two years later, the couple divorced in Wisconsin. The Wisconsin family court “declined” to enforce the affidavit and instead directed Mund to pay $500 in monthly support to Liu for one year, conditioned on Liu’s “proving that despite actively seeking work by making at least four job applications a month, she had not found any work; she is a graduate of a Chinese college but her spoken English is very poor.”16 Liu argued Mund should be directed to pay her support as provided by the Affidavit of Support. Mund, however, claimed she failed to look for work.

Liu sued Mund in federal court seeking to enforce the affidavit and claiming her failure to mitigate damages by not looking for employment provided no defense to Mund’s support duty under the affidavit. After the district court ruled for Mund, Liu appealed. On appeal, the Seventh Circuit reversed. Agreeing with Liu, the Seventh Circuit reasoned Mund, by signing the Affidavit of Support, agreed to support Liu until she died, even after divorce, no matter if she sought employment, unless one of the five exceptions applied. The Ninth Circuit, as well as other courts, has followed Liu v. Mund, noting that “under federal law, neither a divorce judgment nor a premarital agreement may terminate an obligation of support” under such an affidavit.17

Along with federal case law, state courts have struggled with how Affidavits of Support should influence family court proceedings. Two appellate court examples, one each from Pennsylvania and Washington, analyzed and applied such affidavits differently when calculating spousal and child support cases where U.S. citizens and non-U.S. citizens separate or divorce.

The intermediate Pennsylvania appellate case of Love v. Love18 involved a German citizen wife married to a U.S. citizen husband, where the husband had signed an Affidavit of Support. The parties separated, and the wife filed for child and spousal support. The wife argued the Affidavit of Support affected the amount the husband owed under a support order when the support guideline amount is less than 125 percent of the federal poverty guidelines.

The Pennsylvania appellate court found the wife should have been able to present evidence about the affidavit to assist the trial court in calculating the husband’s court-ordered support obligation. The trial court erred in holding the wife needed to file a separate proceeding to enforce the husband’s support obligation established in the Affidavit of Support. The trial court also erred by imputing to the wife a minimum wage capability exceeding the 125 percent of the federal poverty guidelines. Instead, the appellate court found that “when a trial court is confronted with determining whether an immigrant spouse’s income exceeds 125 percent of the Federal Poverty Guidelines, the trial court’s inquiry should concentrate upon the reality of the immigrant spouse’s actual income from all sources of support without inflating that figure by adding theoretical earning capacity to the calculation.”19 Given the trial court did not use the wife’s actual income, and that the errors compounded more errors in its calculations based on support guidelines, the appellate court vacated and remanded the support payment calculations.

The dissenting judge wrote the majority failed to consider the impact on the husband of enforcing the affidavit’s support obligation in a family law proceeding: “The contractual obligation to provide support at 125 percent of the federal poverty level by order of court risks creating a situation wherein Husband is subject to attachment and contempt proceedings for an obligation beyond his ability to pay.”20 This comment demonstrates the tension faced by state courts in balancing the husband’s ability to pay support under state law versus the federal contract obligating the husband to maintain the wife’s income at 125 percent or more of the federal poverty guidelines.

The Washington Court of Appeals, in In re Marriage of Khan,21 viewed these matters differently than the Pennsylvania intermediate appellate court in Love. Azad Khan, a U.S. citizen, and Nishat Khan met in India. A year later, Nishat entered the U.S. on a K-1 (fiancée) visa and the couple married. Azad had to sign the Affidavit of Support to sponsor his wife Nishat. After two years, they separated, and Azad petitioned to dissolve the marriage. The parties’ filings, however, did not reference Azad’s I-864 support obligation. Temporary orders required Azad to pay Nishat $2,000 in monthly maintenance for 12 months and to pay some of her expenses and attorney fees.

Nishat later sought continued maintenance, citing Azad’s Affidavit of Support as a basis. The trial court found Nishat’s rights under the Affidavit of Support preempted state law and limited the ability to impute income to her, stating “that in awarding maintenance it was balancing federal and state law.”22 As a result, the trial court awarded Nishat $2,000 per month for three months in maintenance, which she then appealed.

The Washington Court of Appeals noted the couple stipulated Azad owed an ongoing support obligation under his Affidavit of Support. However, the issue was whether Azad’s “obligation must be enforced through a maintenance award in the dissolution proceeding.”23 The court noted this relationship between a maintenance award in a state dissolution action and an obligation to a former spouse under a federal Affidavit of Support was an issue of first impression under Washington law.

The court in Khan held that a maintenance order under Washington law “need not include enforcement of” an Affidavit of Support, adding “three primary considerations support this conclusion.”24 First, the court found no “conflict” between federal law and state law as each is independent of the other, and no federal or state law mandates an Affidavit of Support obligation must be part of a state maintenance award. That federal law expressly provides that the obligation does not terminate under divorce and “suggests that a spouse’s I-864 obligation exists independent of any dissolution proceedings, including any maintenance award.”25

Second, the court in Khan noted the Washington statute “does not provide one’s spouse’s contractual obligation under federal immigration law to make payments to the other spouse must be enforced through a maintenance award.”26 Thus, a trial court cannot solely apply such a nonstatutory factor without also balancing statutory factors. Third, the Affidavit of Support is separate from rights imposed by marriage and should be asserted by Nishat in a separate action. As a result, the Washington Court of Appeals held, contrary to the Pennsylvania Superior Court, that “a trial court need not enforce a spouse’s I-864 obligation through a maintenance award.”27


The 90 Day Fiancé and similar “reality” media are designed to entertain. But there are some cautionary tales in those shows. Marrying couples, lawyers, and judges must be aware of the serious and long-lasting responsibilities undertaken when a sponsor signs an I-864 Affidavit of Support. Unless one of the five exceptions applies, courts are required to enforce these affidavits as “real” contracts in a world where couples only met initially through the internet. When the virtual masks and disguises disintegrate through actual day-to-day reality of in-person interaction, these actual couples are faced with making challenging decisions despite their previous unrealistic expectations. Under the law, the Affidavit of Support and marriage are viewed as contracts and entered into as enduring commitments. For marriage, that commitment is intended to last “forever in sickness and in health”; for an I-864 Affidavit of Support, the commitment can last “beyond” marriage (and divorce), perhaps far beyond, until the obligation is terminated by death or some other specified event. State and federal jurisdictions may interpret the impact of these Affidavits of Support differently; however, these affidavits clearly are enforced. Expectations of each couple must also be real and clear, and their commitments should be intended to last longer than the next spin-off of 90 Day Fiancé, when a brand-new pool of candidates shares their stories in dramatic fashion.


1. Joe Walsh, ‘90 Day Fiancé’ Scoring Higher Ratings Than Almost Any Other Cable TV Program, Forbes (Aug. 5, 2021),

2. Form I-864 Sponsor Affidavit, pt. 8, at 6 (“What Does Signing Form I-64 Require Me to Do?”),

3. Id. at 7 (“When Will These Obligations End?”).

4. Veronica Tobar Thronson, ‘Til Death Do Us Part’: Affidavits of Support and Obligations to Immigrant Spouses, 50 Fam. Ct. Rev. 594 (Oct. 2012).

5. Ilona Bray, What Sponsors Should Know Before Signing Form I-864 Affidavit of Support, Nolo,

6. Id.

7. Thronson, supra note 4, at 594.

8. Geoffrey A. Hoffman, Immigration Form I-864 (Affidavit of Support) and Efforts to Collect Damages as Support Obligations Against Divorced Spouses—What Practitioners Need to Know, 83 Fla. B.J. 53 (Oct. 2009).

9. Thronson, supra note 4, at 594.

10. John T. Burger, Contract Rights Under the I-864 Affidavit of Support: Seventh Circuit’s Reasoning Binds Courts’ Hands in a Shifting Landscape for Public Charge Doctrine, 93 St. John’s L. Rev. 509 (2019) (quoting Dep’t of Homeland Sec., Ann. Flow Rep.: Lawful Permanent Residents 5 (Aug. 2018)).

11. Id.

12. Id.

13. Id. at 514.

14. News Release, U.S. Citizenship & Immigr. Serv., Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens (June 14, 2019),

15. 686 F.3d 418 (7th Cir. 2012).

16. Id. at 419.

17. Erler v. Erler, 824 F.3d 1173, 1177 (9th Cir. 2016).

18. 33 A.3d 1268 (Pa. Super. 2011).

19. Id. at 1278–79.

20. Id. at 1282 (Freedberg, J., dissenting).

21. 332 P.3d 1016 (Wash. App. 2014).

22. Id.

23. Id. at 1018.

24. Id. at 1019.

25. Id.

26. Id.

27. Id. at 1020. For a more detailed discussion of Love, Khan, and other cases considering the issue, see generally Greg McLawsen, The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate, 48 Fam. L.Q. 581 (2015).

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By Judge Stephanie Domitrovich

Judge Stephanie Domitrovich is a state general jurisdiction trial judge and has served for over 32 years in the Sixth Judicial District of Pennsylvania.