What does the Affidavit of Support require?

[tito 1]

There are many questions that people have concerning the liability of a US Citizen under the Affidavit of Support. Some people say that the affidavit puts the USC on the hook to support the immigrant for 10 years in an amount equal to 125% of the poverty guidelines, no matter what. I don't think that the regulations require that. If the immigrant earns the minimum under the poverty guidelines, then there is no requirement (under the immigration laws, anyway) that the USC pay the immigrant anything. The way I read the statutes, the obligation arises ONLY if the immigrant isn't earning the minimum, and only in situations where "the immigrant receives any "means-tested public benefits," you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits." (DivorceNet, 11/7/06).

The DHS promulgated rules and regulations concerning affidavits of support, and here is a link to commentary regarding the rules, as published in the Federal Register:

http://a257.g.akamaitech.net/7/257/2422/01...pdf/06-5522.pdf

The focus of the affidavit of support is NOT the benefit of the immigrant, such that the immigrant can seek assistance from the sponsor regardless of circumstance; rather, the focus of the affidavit of support is the GOVERNMENT, and whether the immigrant will be a public charge. The STATE is the beneficiary, not the immigrant, and even on the form for the affidavit, it clearly states that the agreement is between the sponsor and the government, and not the immigrant. I think that is an important distinction, because it seems as if some posters here are of the view that the immigrant can get money from the sponsor as part of divorce proceedings or some other order of support, and that is simply not the case, the cases cited notwithstanding (I realize that there are cases where courts used the affidavit of support for the purposes of an award of spousal support, but that is simply not part of the actual obligation under the applicable affidavit of support. Perhaps the Court in that case or those cases used the affidavit of support as a guideline in determining what would be fair support, but there is absolutely nothing in the legislation, rules or regulations that require a sponsor to pay an immigrant anything except for the costs associated with certain social services ONLY in the event that the immigrant isn't earning the minimum, and only up to the minimum, so that, if the immigrant makes $900 a month, the liability for the social services would be only $300.)

Comments?? Please feel free...this is an important discussion in terms of the liability of sponsor, and the expectations of an immigrant, and this should all be flushed out...

Edited January 31, 2008 by tito

[zqt3344 21]

Outstanding research and comment Tito. Are you attorney? You are very knowledgeable in this area is why I ask, and are very accurate in what you say. Maybe you could find some others that know where to go to get answers to this.

Here is what I do know, if you get a prenuptial agreement in place before wedding, it will protect the beneficiary(US spouse) by having the foreign spouse waive their right to trying to use the affidavit of support as a means of alimony or maintenance to be paid. Granted it cannot be waived with paying back US govt or State govt for services, but it will stop the situation that occurred in the Stump v Stump case from what my attorney told me. And I agree with you and so does my attorney in regards to the Indiana court analysis of Stump case(it is flawed and wrong since contract is with USA govt and to protect it not the immigrant) on how it was applied, and it probably would be overturned on appeal, but that can take a long time or years to get that ruling.

What needs to happen is the USA Congress needs to pass new law to fix this loophole or US citizens need to contact their Congressman and alert them to this flagrant misuse of an intended law by immigrants trying to game the system since it it is designed for protecting the govt and to pay them back for any services obtained while married to the foreign immigrant.

Let us know if you find out anymore. Interesting topic.

There are many questions that people have concerning the liability of a US Citizen under the Affidavit of Support. Some people say that the affidavit puts the USC on the hook to support the immigrant for 10 years in an amount equal to 125% of the poverty guidelines, no matter what. I don't think that the regulations require that. If the immigrant earns the minimum under the poverty guidelines, then there is no requirement (under the immigration laws, anyway) that the USC pay the immigrant anything. The way I read the statutes, the obligation arises ONLY if the immigrant isn't earning the minimum, and only in situations where "the immigrant receives any "means-tested public benefits," you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits." (DivorceNet, 11/7/06).

The DHS promulgated rules and regulations concerning affidavits of support, and here is a link to commentary regarding the rules, as published in the Federal Register:

http://a257.g.akamaitech.net/7/257/2422/01...pdf/06-5522.pdf

The focus of the affidavit of support is NOT the benefit of the immigrant, such that the immigrant can seek assistance from the sponsor regardless of circumstance; rather, the focus of the affidavit of support is the GOVERNMENT, and whether the immigrant will be a public charge. The STATE is the beneficiary, not the immigrant, and even on the form for the affidavit, it clearly states that the agreement is between the sponsor and the government, and not the immigrant. I think that is an important distinction, because it seems as if some posters here are of the view that the immigrant can get money from the sponsor as part of divorce proceedings or some other order of support, and that is simply not the case, the cases cited notwithstanding (I realize that there are cases where courts used the affidavit of support for the purposes of an award of spousal support, but that is simply not part of the actual obligation under the applicable affidavit of support. Perhaps the Court in that case or those cases used the affidavit of support as a guideline in determining what would be fair support, but there is absolutely nothing in the legislation, rules or regulations that require a sponsor to pay an immigrant anything except for the costs associated with certain social services ONLY in the event that the immigrant isn't earning the minimum, and only up to the minimum, so that, if the immigrant makes $900 a month, the liability for the social services would be only $300.)

Comments?? Please feel free...this is an important discussion in terms of the liability of sponsor, and the expectations of an immigrant, and this should all be flushed out...

[tito 1]

The Federal Register discussion is about as in-depth as anything on the subject in helping to explain the nature and extent of obligations. How the Court came to its conclusion in Stump is a mystery to me. The conclusion is simply not justified given the legislative intent, and the court played a heavy hand in interpreting things that were taken out of context. The Court is governed by various rules of construction when dealing with statutes that may or may not be ambiguous, and if and when there is an ambiguity, the role of the Court is to give effect to the viability of the statute, not to undermine it. But here, I, for one, don't see the ambiguity.

I am an attorney but I am not an immigration attorney...I did a lot of research as a favor in order to disavow a declaration for someone close to me, and note that there are a lot of misconceptions floating around here when this issue is continually raised, so I thought that the reference to the Fed Reg would be helpful.

[mystery 0]

The Federal Register discussion is about as in-depth as anything on the subject in helping to explain the nature and extent of obligations. How the Court came to its conclusion in Stump is a mystery to me. The conclusion is simply not justified given the legislative intent, and the court played a heavy hand in interpreting things that were taken out of context. The Court is governed by various rules of construction when dealing with statutes that may or may not be ambiguous, and if and when there is an ambiguity, the role of the Court is to give effect to the viability of the statute, not to undermine it. But here, I, for one, don't see the ambiguity.

I am an attorney but I am not an immigration attorney...I did a lot of research as a favor in order to disavow a declaration for someone close to me, and note that there are a lot of misconceptions floating around here when this issue is continually raised, so I thought that the reference to the Fed Reg would be helpful.

Excellent info Tito.

Can I get you as my attorney if my soon to be exwife decideds to sue me for the Affidavit of Support???

mystery

[diadromous mermaid 36]

There are many questions that people have concerning the liability of a US Citizen under the Affidavit of Support. Some people say that the affidavit puts the USC on the hook to support the immigrant for 10 years in an amount equal to 125% of the poverty guidelines, no matter what. I don't think that the regulations require that. If the immigrant earns the minimum under the poverty guidelines, then there is no requirement (under the immigration laws, anyway) that the USC pay the immigrant anything. The way I read the statutes, the obligation arises ONLY if the immigrant isn't earning the minimum, and only in situations where "the immigrant receives any "means-tested public benefits," you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits." (DivorceNet, 11/7/06).

The DHS promulgated rules and regulations concerning affidavits of support, and here is a link to commentary regarding the rules, as published in the Federal Register:

http://a257.g.akamaitech.net/7/257/2422/01...pdf/06-5522.pdf

The focus of the affidavit of support is NOT the benefit of the immigrant, such that the immigrant can seek assistance from the sponsor regardless of circumstance; rather, the focus of the affidavit of support is the GOVERNMENT, and whether the immigrant will be a public charge. The STATE is the beneficiary, not the immigrant, and even on the form for the affidavit, it clearly states that the agreement is between the sponsor and the government, and not the immigrant. I think that is an important distinction, because it seems as if some posters here are of the view that the immigrant can get money from the sponsor as part of divorce proceedings or some other order of support, and that is simply not the case, the cases cited notwithstanding (I realize that there are cases where courts used the affidavit of support for the purposes of an award of spousal support, but that is simply not part of the actual obligation under the applicable affidavit of support. Perhaps the Court in that case or those cases used the affidavit of support as a guideline in determining what would be fair support, but there is absolutely nothing in the legislation, rules or regulations that require a sponsor to pay an immigrant anything except for the costs associated with certain social services ONLY in the event that the immigrant isn't earning the minimum, and only up to the minimum, so that, if the immigrant makes $900 a month, the liability for the social services would be only $300.)

Comments?? Please feel free...this is an important discussion in terms of the liability of sponsor, and the expectations of an immigrant, and this should all be flushed out...

All well and fine, tito, but...the Affidavit of Support form itself requires a signature. Failure to provide a signature is articulated here--->

You cannot be made to sign a Form 1-864 if you do not want to do so. But if you do not sign the Form I-864, theintending immigrant may not be able to become a permanent resident in the United States.

The terms are articulated on the form I-864 as --->

If you sign a Form I-864 on behalf of any person (called the "intending immigrant") who is applying for an immigrant visa or for adjustment of status to a permanent resident, and that intending immigrant submits the Form I-864 to the U.S.Government with his or her application for an immigrant visa or adjustment of status, under section 213A of the Immigration and Nationality Act these actions create a contract between you and the U. S. Government. The intending immigrant's becoming a permanent resident is the "consideration" for the contract.

Under this contract, you agree that, in deciding whether the intending immigrant can establish that he or she is not inadmissible to the United States as an alien likely to become a public charge, the U.S. Government can consider your income and assets to be available for the support of the intending immigrant.

Consequently,the USC is agreeing that an endorsement renders the following ---->

What is the Legal Effect of My Signing a Form I-864?

If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed, then until your obligations under the Form I-864 terminate, your income and assets may be considered ("deemed") to be available to that person, in determining whether he or she is eligible for certain Federal means-tested public benefits and also for State or local means-tested public benefits, if the State or local government's rules provide for consideration("deeming”) of your income and assets as available to the person.

What Does Signing the Form I-864 Require Me to do?

If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under the Form I-864 terminate, you must:

a. Provide the intending immigrant 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 (100 percent if you are the petitioning sponsor and areon active duty in the U.S. Armed Forces and the person is your husband, wife, unmarried child under 21 years old.)

Note no mention of the purported requirement that this be in any way attached to the alien availaing him or herself of means tested benefits.

and further---->

Please note that, by signing this Form I-864, you agree to assume certain specific obligations under the Immigration and Nationality Act and other Federal laws. The following paragraphs describe those obligations. Please read the following information carefully before you sign the Form I-864. If you do not understand the obligations, you may wish to consultan attorney or accredited representative.

Here's the part that relates to repercussions of failing to fulfil the terms

If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864 that you signed, that person may sue you for this support.

If a Federal, State or local agency, or a private agency provides any covered means-tested public benefit to the person who becomes a permanent resident based on the Form I-864 that you signed, the agency may ask you to reimburse them (note this is a separate action and it is not an "if/or") for the amount of the benefits they provided.

If you do not make the reimbursement, the agency may sue you for the amount that the agency believes you owe.

If you are sued, and the court enters a judgment against you, the person or agency that sued you may use any legally permitted procedures for enforcing or collecting the judgment.

You may also be required to pay the costs of collection,including attorney fees.

And finally, in the endorsement section of Form I-864, the undersigned, under penalty of perjury affirms that

I _____________certify under penalty of perjury under the laws of the United States that:

a. I know the contents of this affidavit of support that I signed.

b. All the factual statements in this affidavit of support are true and correct.

c. I have read and I understand each of the obligations described in Part 8, and I agree, freely and without any mental reservation or purpose of evasion, to accept each of those obligations in order to make it possible for the immigrants indicated in Part 3 to become permanent residents of the United States;

d. I agree to submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against me to enforce my obligations under this Form I-864;

e. Each of the Federal income tax returns submitted in support of this affidavit are true copies, or are unaltered tax transcripts, of the tax returns I filed with the U.S. Internal Revenue Service;....

I think in view of the above, the opportunity for the immigrant to seek remedy does exist.

[tito 1]

The commentary and commentators and judicial analysts interpret the statutes the way they do. The Federal Register is quite illuminating with respect to the nature and extent of the declaration of support, and how to disavow it, and what it means down the stretch. The language of the 864 is subject to interpretation, as is obviously noted by legal commentators dealing with the issue, and I still do not believe that the court in Stump was correct. Stump does not settle anything, in my view. It only raises more questions.

See? This is an exchange of ideas regarding OPINION about the meaning of something that occurs in the world. The thing in the world that is relatively certain is the declaration of support; the thing in dispute is the nature and extent of obligations under it, which is subject to differing opinions.

Edited February 6, 2008 by tito

[diadromous mermaid 36]

The commentary and commentators and judicial analysts interpret the statutes the way they do. The Federal Register is quite illuminating with respect to the nature and extent of the declaration of support, and how to disavow it, and what it means down the stretch. The language of the 864 is subject to interpretation, as is obviously noted by legal commentators dealing with the issue, and I still do not believe that the court in Stump was correct. Stump does not settle anything, in my view. It only raises more questions.

See? This is an exchange of ideas regarding OPINION about the meaning of something that occurs in the world. The thing in the world that is relatively certain is the declaration of support; the thing in dispute is the nature and extent of obligations under it, which is subject to differing opinions.

Section 213A(a)(1)(B) of the Act

expressly says the sponsored immigrant

must be able to seek to enforce the

affidavit of support. Congress clearly

intended to permit the sponsored

immigrant to sue to enforce the support

obligation, if necessary.

[mawilson 2,133]

Silly question, but.....

Isn't this whole Affidavit business a load of bollocks anyway?

The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested

public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS

keep it securely locked in a vault (or a dusty file cabinet.)

So even if an immigrant goes and claims all of sorts of benefits, who would know that there's

an Affidavit of Support out there somewhere and who's going to enforce it? It's not like

the IRS, SSA and USCIS all use the same computer system.

[mox 298]

Silly question, but.....

Isn't this whole Affidavit business a load of bollocks anyway?

The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested

public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS

keep it securely locked in a vault (or a dusty file cabinet.)

So even if an immigrant goes and claims all of sorts of benefits, who would know that there's

an Affidavit of Support out there somewhere and who's going to enforce it? It's not like

the IRS, SSA and USCIS all use the same computer system.

The fact that it was required for the particular visa the immigrant entered on is pretty strong proof of its existence. The revelation of the document would be made by the immigrant (and their attorneys). It can also probably be subpoenaed. IANAL (frontal lobe and soul still securely in place) but I'm sure there are all kinds of arcane and dark magickal ways attorneys have of making it surface.

[tito 1]

Section 213A(a)(1)(B) of the Act

expressly says the sponsored immigrant

must be able to seek to enforce the

affidavit of support. Congress clearly

intended to permit the sponsored

immigrant to sue to enforce the support

obligation, if necessary.

Here's where the court got TOO active...the issue is WHAT support obligation? The answer is...MEANS-TESTED BENEFITS! The court in Stump read too much into it, and it is subject to such an interpretation (given that you also interpret the language that way). But...that is an overly expansive way of interpreting the regulation. Stump can and will be challenged. The sponsor is on the hook to support the immigrant...but that's not the end...FOR MEANS-TESTED BENEFITS, which is the overall and general subject of the affidavit of support. See how that works? That is appropriate legislative analysis...not to EXPAND the statute, but to limit its meaning. There is where the court erred.

That's my analysis, anyway, and I am confident in its application.

"Isn't this whole Affidavit business a load of bollocks anyway?"

You could say that, but it is a big cloud hovering over the citizen. The agency providing "means-tested" public benefits (that involve mandatory, not discretionary, funding) takes down the immigrant's information, visa number, passport, and other information like that, and if there's a way to grab onto someone to reimburse the government, it'll come back and bite the citizen more times than not. Plus, as in the Stump case, the immigrant paraded it around as a basis for an award.

ASIDE FOR MOX: If you read the Stump case...I'll give you THREE guesses as to where the wife was from...and the first 2 don't count. Her name was OLGA.

Edited February 6, 2008 by tito

[mox 298]

ASIDE FOR MOX: If you read the Stump case...I'll give you THREE guesses as to where the wife was from...and the first 2 don't count. Her name was OLGA.

Thank you Tito. You've saved me years of heartache and thousands of dollars. It's midnight in Russia, but I just called my girl to tell her it's off. I told her I was on to her little greencard thieving ways, and that Tito had lifted the blinders that had heretofore been covering my eyes. At the mention of the name "Tito" I'd have thought I was talking to Golum. She completely changed into the horrible monster she really is. All she could say was "You win this time Tito, but I'll be back!"

ASIDE BACK TO THE MAIN TOPIC, i.e. "you are wrong and mermaid has wiped the floor with your ego," honestly I'm amused that even when the evidence is completely against you, you can't admit that you're wrong. I know if I were looking for a lawyer I'd choose the one that says "well the law says this, and precedence agrees, but I'm going to advise you against it anyway." Seriously, never change.

Edited February 6, 2008 by mox

[Jeraly 4]

RIGHT ON!!!!!!!111!!!!!!

Thank you Tito. You've saved me years of heartache and thousands of dollars. It's midnight in Russia, but I just called my girl to tell her it's off. I told her I was on to her little greencard thieving ways, and that Tito had lifted the blinders that had heretofore been covering my eyes. At the mention of the name "Tito" I'd have thought I was talking to Golum. She completely changed into the horrible monster she really is. All she could say was "You win this time Tito, but I'll be back!"

ASIDE BACK TO THE MAIN TOPIC, i.e. "you are wrong and mermaid has wiped the floor with your ego," honestly I'm amused that even when the evidence is completely against you, you can't admit that you're wrong. I know if I were looking for a lawyer I'd choose the one that says "well the law says this, and precedence agrees, but I'm going to advise you against it anyway." Seriously, never change.

[diadromous mermaid 36]

Section 213A(a)(1)(B) of the Act

expressly says the sponsored immigrant

must be able to seek to enforce the

affidavit of support. Congress clearly

intended to permit the sponsored

immigrant to sue to enforce the support

obligation, if necessary.

Here's where the court got TOO active...the issue is WHAT support obligation? The answer is...MEANS-TESTED BENEFITS!

That's my analysis, anyway, and I am confident in its application.

How is it that you interpret the "support obligation" to only incluide means-tested benefits, when the Affidavist of Support document itself, suggests that the signator must

If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under the Form I-864 terminate, you must:

a. Provide the intending immigrant 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 (100 percent if you are the petitioning sponsor and areon active duty in the U.S. Armed Forces and the person is your husband, wife, unmarried child under 21 years old.)

Sorry, but I just don't see how you are overlooking both the language on the form, and the INA

[mawilson 2,133]

Silly question, but.....

Isn't this whole Affidavit business a load of bollocks anyway?

The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested

public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS

keep it securely locked in a vault (or a dusty file cabinet.)

So even if an immigrant goes and claims all of sorts of benefits, who would know that there's

an Affidavit of Support out there somewhere and who's going to enforce it? It's not like

the IRS, SSA and USCIS all use the same computer system.

The fact that it was required for the particular visa the immigrant entered on is pretty strong proof of its existence. The revelation of the document would be made by the immigrant (and their attorneys). It can also probably be subpoenaed. IANAL (frontal lobe and soul still securely in place) but I'm sure there are all kinds of arcane and dark magickal ways attorneys have of making it surface.

Clearly, the immigrant can use the Affidavit to sue their sponsor for support.

But why would the immigrant want their sponsor to repay the cost of means-tested

benefits to the government?

[tito 1]

If the immigrant receives the assistance, and the agency comes after them, they can, in turn, go after the sponsor for support. That is the extent of the obligation. It's not a free for all...that's not what the government requires. ONLY that the sponsor pick up the tab so that the immigrant is not a public charge. That's the focus according to what the commentators say in the Federal Register.

All the other fluff goes too far, even the Stump case. An immigrant who wants money and can hire a lawyer is a very dangerous weapon indeed. But there are parametes to the affidavit of support...despite the ambiguity and despite how one court ruled...and that's what IS clear.

Edited February 7, 2008 by tito