Affidavit of Support - Illegal Status -

[Usui Takumi 1,562]

I have a question stemming from alot of posts in this forum. If a K1 holder gets married but things fall a part and they never AOS does the Affidavit really apply anymore. Once they go past 90 days they are out of status and illegal no? Doesn't that trump the Affidavit?

[JimVaPhuong 4,863]

I have a question stemming from alot of posts in this forum. If a K1 holder gets married but things fall a part and they never AOS does the Affidavit really apply anymore. Once they go past 90 days they are out of status and illegal no? Doesn't that trump the Affidavit?

As far as I know, they have to actually leave the country, in addition to being out of status, before the affidavit would no longer be enforceable. As long as they are still here, then there is still a possibility they could have their legal status restored. For example, they could reconcile with their spouse and apply for AOS late.

That said, if they stayed here and were out of status, they'd be pretty foolish to apply for any means tested benefits, or petition a court for support based on the affidavit.

[TayRivers 4]

I have a question stemming from alot of posts in this forum. If a K1 holder gets married but things fall a part and they never AOS does the Affidavit really apply anymore. Once they go past 90 days they are out of status and illegal no? Doesn't that trump the Affidavit?

The I-864 is only valid if the AOS has been approved. If the application is cancelled or denied then the affidavit is non binding. The affidavit submitted for the K1 is not legally binding and that is why everyone has to submit the I-864 when filing for AOS.

Edited August 25, 2009 by TayRivers

[Usui Takumi 1,562]

I was going to say that it seems that in the process of getting benefits they would be singled out and placed in deportation proceedings hence they would never get to actually use the benefit and the affidavit wouldn't come into play. I guess then its always there but its unusable. Kind of like getting a free ticket for a theater in West Berlin while your in the East.

[Usui Takumi 1,562]

I have a question stemming from alot of posts in this forum. If a K1 holder gets married but things fall a part and they never AOS does the Affidavit really apply anymore. Once they go past 90 days they are out of status and illegal no? Doesn't that trump the Affidavit?

The I-864 is only valid if the AOS has been approved. If the application is cancelled or denied then the affidavit is non binding. The affidavit submitted for the K1 is not legally binding and that is why everyone has to submit the I-864 when filing for AOS.

By the way, I've heard this before. If the K1 affidavit isn't binding why is there at all? Support the logging industry?

[TayRivers 4]

I have a question stemming from alot of posts in this forum. If a K1 holder gets married but things fall a part and they never AOS does the Affidavit really apply anymore. Once they go past 90 days they are out of status and illegal no? Doesn't that trump the Affidavit?

The I-864 is only valid if the AOS has been approved. If the application is cancelled or denied then the affidavit is non binding. The affidavit submitted for the K1 is not legally binding and that is why everyone has to submit the I-864 when filing for AOS.

By the way, I've heard this before. If the K1 affidavit isn't binding why is there at all? Support the logging industry?

I have no idea why they continue to use it.. But I do know that it can not be upheld in court. Only the I-864 is a binding contract between the sponsor and the US Government.

See page 14 of this link. for full details

www.state.gov/documents/organization/86988.pdf

9 FAM 40.41 N4.6-3 Use of Form I-134, Affidavit of

Support

(CT:VISA-911; 11-02-2007)

a. Because INA 212(a)(4)© and INA 213A require the use of Form I-864,

Affidavit of Support Under Section 213A of the Act, for so many classes of

immigrants, the use of Form I-134, Affidavit of Support, has been

reduced considerably. Nevertheless, there still are circumstances when

Form I-134 will be beneficial. This affidavit, submitted by the applicant at

your request, is not legally binding on the sponsor and should not be

accorded the same weight as Form I-864. Form I-134 should be given

consideration as one form of evidence, however, in conjunction with the

other forms of evidence mentioned below.

[Kathryn41 3,205]

I suspect the I-134 Affidavit of Support is there as an indicator to the Consulate that this relationship has a financial basis upon which to build and thrive. If there is no financial insight then there is no means to pre-determine that someone is likely to become a public burden or have no means of support when in the US. Until the individual is actually a Permanent Resident, however, it is not reasonable to tie them to a non-immigrant for a long term. I suppose the I-134 could be made enforceable for the short-term - that is the sponsor agrees to sponsor them while their I-94 is valid. Then, however, what happens from the time the I-94 expires to the time the AOS is approved - and what happens if the couple doesn't marry and there is no AOS? Once the marriage happens and the foreign partner applies to remain in the US, then it becomes reasonable to have a legally enforceable Affidavit of Support to kick in.