Fraudulent Marriage vs. Legitimate Divorce

[john_and_marlene 162]

~She~ cannot 'enforce' the Affidavit of Support. That can only be used by a gov't agency to try and collect from the USC any public assistance (welfare, food stamps, public housing) paid out on the immigrant's behalf. They would have to take you to court and they could use the "Affidavit of Support" to try and collect re-imbursement from you for the monies they paid out on the immigrant's behalf. But they would have to file a lawsuit against you in order to even try to do this.

As the immigant, she has no ability to take this document and enforce anything against you. He said he saw a divorce proceeding where the opposing lawyer tried to claim "you signed an agreement you would support her for 10 years", and told me point blank, that is NOT the meaning, nor purpose of that document, nor can it be used in such a way.

So based on the information he gave me, I don't think that's an issue to be concerned about.

I wasn't commenting on your particular situation. I think the lump sum arrangement will protect you. I was very much concerned with this part of the post leading others to believe that there is nothing to be concerned about. This part of the post is absolutely incorrect.

Edited July 25, 2006 by john_and_marlene

[PurrSuede 0]

I wasn't commenting on your particular situation. I think the lump sum arrangement will protect you. I was very much concerned with this part of the post leading others to believe that there is nothing to be concerned about. This part of the post is absolutely incorrect.

John_and_Marlene:

I've sent that article over to him. We can only go on the information we are given. I'm awaiting his reply. I appreciate it, and I appreciate knowing more information on this as well. If he responds to me, I'll share it with the group.

-- Dan

[john_and_marlene 162]

...........................

I wasn't commenting on your particular situation. I think the lump sum arrangement will protect you. I was very much concerned with this part of the post leading others to believe that there is nothing to be concerned about. This part of the post is absolutely incorrect.

John_and_Marlene:

I've sent that article over to him. We can only go on the information we are given. I'm awaiting his reply. I appreciate it, and I appreciate knowing more information on this as well. If he responds to me, I'll share it with the group.

-- Dan

[diadromous mermaid 36]

There is nothing in your posts to suggest she will have any issues obtaining her 10 year GC.

She can apply as soon as the divorce is final.

Is there something significant you have left out?

I would be more worried about her enforcing the Affadavit of Support.

As I said, I'm going on the basis of what an Immigration Attorney told me, and as I said, he worked as a Staff Attorney for the INS for 20 years prior.

He said the very fact she left the marriage prior to Permanent AOS (removal of conditions) means the INS will take a HUGE interest in her. I didn't say they wouldn't approve her, or deport her, and frankly that's between her and the CIS, and no longer my problem.

However, regarding the "Affidavit of Support". Again, this information comes straight from the Attorney.

~She~ cannot 'enforce' the Affidavit of Support. That can only be used by a gov't agency to try and collect from the USC any public assistance (welfare, food stamps, public housing) paid out on the immigrant's behalf. They would have to take you to court and they could use the "Affidavit of Support" to try and collect re-imbursement from you for the monies they paid out on the immigrant's behalf. But they would have to file a lawsuit against you in order to even try to do this.

As the immigant, she has no ability to take this document and enforce anything against you. He said he saw a divorce proceeding where the opposing lawyer tried to claim "you signed an agreement you would support her for 10 years", and told me point blank, that is NOT the meaning, nor purpose of that document, nor can it be used in such a way.

He also told me ~point blank~ that in his 20 years with the INS he had NEVER, I repeat NEVER, once seen this document used against a USC. Nor in his private practice. Never, not ONCE. And it could only be used as "evidence" in a lawsuit filed against the USC by the gov't agency that was providing "public assistance" for the immigrant.

So based on the information he gave me, I don't think that's an issue to be concerned about.

Dan,

I think you're adopting a healthy attitude towards your future. One can't, in a situation like this, focus on what may or may not have been the case. I'd just caution you to consider that the $12,000 lump sum payment may not be considered alimony or support, but rather her portion of the equity in the marital estate. You settled the matter, correct? What I mean by that is that the divorce was not contested or tried, isn't that correct? Technically, I suppose it is conceivable that there might come some time when she could consider taking further action, as in the Pennsy Stump case, although that's not a certainty and it is precedential and many do not know of it (especially if she's not savvy in immigration circles anyway). I'd certainly not count on anyone staying employed as a preclusion from a second action, though let's hope her pride means more to her than potential financial gain.

I know that it must be an emotional time right now for you. Better that you be wary, but fix your eyes strictly on your future and healing from this episode. Good luck

[Boiler 45,519]

There is nothing in your posts to suggest she will have any issues obtaining her 10 year GC.

She can apply as soon as the divorce is final.

Is there something significant you have left out?

I would be more worried about her enforcing the Affadavit of Support.

As I said, I'm going on the basis of what an Immigration Attorney told me, and as I said, he worked as a Staff Attorney for the INS for 20 years prior.

He said the very fact she left the marriage prior to Permanent AOS (removal of conditions) means the INS will take a HUGE interest in her. I didn't say they wouldn't approve her, or deport her, and frankly that's between her and the CIS, and no longer my problem.

However, regarding the "Affidavit of Support". Again, this information comes straight from the Attorney.

~She~ cannot 'enforce' the Affidavit of Support. That can only be used by a gov't agency to try and collect from the USC any public assistance (welfare, food stamps, public housing) paid out on the immigrant's behalf. They would have to take you to court and they could use the "Affidavit of Support" to try and collect re-imbursement from you for the monies they paid out on the immigrant's behalf. But they would have to file a lawsuit against you in order to even try to do this.

As the immigant, she has no ability to take this document and enforce anything against you. He said he saw a divorce proceeding where the opposing lawyer tried to claim "you signed an agreement you would support her for 10 years", and told me point blank, that is NOT the meaning, nor purpose of that document, nor can it be used in such a way.

He also told me ~point blank~ that in his 20 years with the INS he had NEVER, I repeat NEVER, once seen this document used against a USC. Nor in his private practice. Never, not ONCE. And it could only be used as "evidence" in a lawsuit filed against the USC by the gov't agency that was providing "public assistance" for the immigrant.

So based on the information he gave me, I don't think that's an issue to be concerned about.

Dan,

I think you're adopting a healthy attitude towards your future. One can't, in a situation like this, focus on what may or may not have been the case. I'd just caution you to consider that the $12,000 lump sum payment may not be considered alimony or support, but rather her portion of the equity in the marital estate. You settled the matter, correct? What I mean by that is that the divorce was not contested or tried, isn't that correct? Technically, I suppose it is conceivable that there might come some time when she could consider taking further action, as in the Pennsy Stump case, although that's not a certainty and it is precedential and many do not know of it (especially if she's not savvy in immigration circles anyway). I'd certainly not count on anyone staying employed as a preclusion from a second action, though let's hope her pride means more to her than potential financial gain.

I know that it must be an emotional time right now for you. Better that you be wary, but fix your eyes strictly on your future and healing from this episode. Good luck

From my recollection she does have a duty to mitigate, I guess it was the minimum wage job mention that worried me.

As far as the case is concerned in my profession I can not rely upon just those issues that just have happened to my clients, I have to have a much broader knowledge. There is amongst other thing a requiremnt for continuing professional education.

I thought this case was well known in legal immigration circles.

But the chances are that it will not effect you, but always helps to know what could come back and bite you. Forewarned is forearmed.

[Aussielad 37]

However it is true with what was brought up on both sides of the fence.

Imcompatibility, or maybe she had this in mind all along, who knows, which he's right,.....the only person that will ever be able to tell that,....is her. Because we cant litterly jump inside her mind/body and feel what she feels/knows.

But by far, this is the most positive attitude i've ever seen on VJ going through this situation, a good example to follow.

There are very few people like the man with an attitude like this, cos usually, its only bitterness and hate.

[PurrSuede 0]

The diadromous one wrote:

Dan,

I think you're adopting a healthy attitude towards your future. One can't, in a situation like this, focus on what may or may not have been the case. I'd just caution you to consider that the $12,000 lump sum payment may not be considered alimony or support, but rather her portion of the equity in the marital estate. You settled the matter, correct? What I mean by that is that the divorce was not contested or tried, isn't that correct? Technically, I suppose it is conceivable that there might come some time when she could consider taking further action, as in the Pennsy Stump case, although that's not a certainty and it is precedential and many do not know of it (especially if she's not savvy in immigration circles anyway). I'd certainly not count on anyone staying employed as a preclusion from a second action, though let's hope her pride means more to her than potential financial gain.

I know that it must be an emotional time right now for you. Better that you be wary, but fix your eyes strictly on your future and healing from this episode. Good luck

The divorce was not contested nor tried. This is a NO-FAULT state. She quickly realized all we'd do by fighting over things is make the lawyer's rich. The Marital Settlement Agreement clearly spells out that the "Respondent (her) is awarded lump-sum non-modifiable spousal support in the amount of $12,000".

I was told by the Divorce lawyer this means she can NOT re-open the issue of support at a later time. So technically she can not try to bring up the issue of "Affidavit of Support/I-864" as a means of using it to try to get additional support from me. Because she's agreed to a NON-MODIFIABLE lump-sum support settlement. Hopefully THAT language should be a preclusion from a second action, based on the I-864 document or anything else that might occur to her...

I also will note that as alimony/lump sum support this comes directly off my taxable income... and she'll have to pay taxes on it.

Yes, it is a very emotional time for me. There are a lot of other circumstances that I haven't discussed yet, regarding how this all came apart for us.

I appreciate your thoughts and comments, Diadromous one...

-- Dan

From my recollection she does have a duty to mitigate, I guess it was the minimum wage job mention that worried me.

As far as the case is concerned in my profession I can not rely upon just those issues that just have happened to my clients, I have to have a much broader knowledge. There is amongst other thing a requiremnt for continuing professional education.

I thought this case was well known in legal immigration circles.

But the chances are that it will not effect you, but always helps to know what could come back and bite you. Forewarned is forearmed.

Boiler:

Well he has this knowledge NOW, I sent him the link. And yes, knowing what COULD come back and bite me, I sent it to my Divorce attorney as well, to see if she can protect my ### as well as my assets from any further actions from her.

Thanks again.

-- Dan

[PurrSuede 0]

However it is true with what was brought up on both sides of the fence.

Imcompatibility, or maybe she had this in mind all along, who knows, which he's right,.....the only person that will ever be able to tell that,....is her. Because we cant litterly jump inside her mind/body and feel what she feels/knows.

But by far, this is the most positive attitude i've ever seen on VJ going through this situation, a good example to follow.

There are very few people like the man with an attitude like this, cos usually, its only bitterness and hate.

Aussielad:

Just thank you for your kind words. I just don't believe in spending my time and energy on negativity. It will only keep me enchained to the relationship, and now is the time to cut my losses, and move forward with my life.

I'm doing my best, my friends are helping me, and I know she's going to have it much much tougher dealing with her circumstances than I ever will...

-- Dan

[iceyspots 0]

(J) Transsexuals. Whether to give legal effect to a sex change is a legislative question. While some states have enacted laws that permit a person who has undergone sex change surgery to legally change the person's sex from one to the other, Congress has not addressed the issue. Defining marriage under immigration law is a question of Federal law, not state law. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1981). Consequently, without legislation from Congress USCIS has no legal basis on which to recognize a change of sex so that a marriage between two persons born of the same sex can be recognized. See Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996).

[Yodrak 7]

PurrSuede,

I think your divorce lawyer needs to consult with an immigration lawyer, and with a contracts lawyer.

I-864 is a contract between the sponsor and the US government. It is not affected by the issues settled in a divorce action. The divorce settlement does not preclude an action based on the I-864 obligation.

Do a Google search of the Usenet newsgroup <alt.visa.us.marriage-based> for posts on the subject by folinskyinla.

Yodrak

...

I was told by the Divorce lawyer this means she can NOT re-open the issue of support at a later time. So technically she can not try to bring up the issue of "Affidavit of Support/I-864" as a means of using it to try to get additional support from me. Because she's agreed to a NON-MODIFIABLE lump-sum support settlement. Hopefully THAT language should be a preclusion from a second action, based on the I-864 document or anything else that might occur to her...

[zauberblume 0]

Dan,

You do have a very positive outlook even amidst this terrible time. Good luck.

john_and_marlene,

Thanks for the links.

This part is interesting:

Advisals on the I-864

The second paragraph of the instructions to Form I-864 advises the sponsor that by executing the form he or she is agreeing "to support the intending immigrant and any spouse and/or children immigrating with him or her" until the contract terminates. "Divorce does not terminate the obligation."[12] Part 7 of the form states: "The sponsor must provide the sponsored immigrant(s) whatever support is necessary to maintain them at an income that is at least 125 percent of the Federal poverty income guidelines."[13] When sponsors sign the I-864, they are agreeing to provide the sponsored immigrant with that level of support until the contract terminates, acknowledging their understanding of when the contract terminates, admitting that the sponsored immigrant may sue to enforce the contract, and conceding to the personal jurisdiction of any court in the United States to enforce the contract.[14] The language on the Form I-864 carries the same weight as published regulations.

Does that also apply to co-sponsors? Can the immigrant sue the co-sponsor in order to get whatever support is necessary?

If so, this document has become a lot scarier than I imagined. I must admit that I didn't read the Affidavit of Support as carefully as I should have. I would have a hard time willing to become a co-sponsor. Yes, I sponsored my husband; however, I couldn't fathom co-sponsoring in any other circumstance, especially since I don't trust many people.

I'm surprised that there aren't more cases of the immigrant suing the sponsor in order to get support. Is that because the immigrant is unaware of it? Or are there moral reasons? I would hope so, but then it is a contract and perhaps there is nothing morally wrong with, in some people's reasoning, enforcing this contract.

Good reading. The more I learn about immigration, the more I want to become an immigration lawyer. Too bad I may have missed my calling.

[john_and_marlene 162]

This part is interesting:

Does that also apply to co-sponsors? Can the immigrant sue the co-sponsor in order to get whatever support is necessary?

If so, this document has become a lot scarier than I imagined. I must admit that I didn't read the Affidavit of Support as carefully as I should have. I would have a hard time willing to become a co-sponsor. Yes, I sponsored my husband; however, I couldn't fathom co-sponsoring in any other circumstance, especially since I don't trust many people.

Certainly the immigrant can sue a cosponsor and they may or may not be successful. I would expect it is more likely that they would be required to reimburse the government in the event the immigrant used some means-tested government benefits at some time.

I have long felt that people take cosponsorship too lightly. It is a major obligation which could potentially last for the rest of their life. I wonder how many cosponsors actually expect to provide some level of support. I would never sign one for anyone other than my spouse.

[dmartmar 1]

I was told by the Divorce lawyer this means she can NOT re-open the issue of support at a later time. So technically she can not try to bring up the issue of "Affidavit of Support/I-864" as a means of using it to try to get additional support from me. Because she's agreed to a NON-MODIFIABLE lump-sum support settlement. Hopefully THAT language should be a preclusion from a second action, based on the I-864 document or anything else that might occur to her...

Divorce court and Immigration court are two very different things.

[Boiler 45,519]

I was told by the Divorce lawyer this means she can NOT re-open the issue of support at a later time. So technically she can not try to bring up the issue of "Affidavit of Support/I-864" as a means of using it to try to get additional support from me. Because she's agreed to a NON-MODIFIABLE lump-sum support settlement. Hopefully THAT language should be a preclusion from a second action, based on the I-864 document or anything else that might occur to her...

Divorce court and Immigration court are two very different things.

Looks like at least 2 people have made my comment. Federal law is not over ruled by State law.

http://britishexpats.com/forum/showthread.php?t=386869 - a thread about the issues adjusting to 10 year GC status, co-incidentally, the OP is divorced.

[PurrSuede 0]

PurrSuede,

I think your divorce lawyer needs to consult with an immigration lawyer, and with a contracts lawyer.

I-864 is a contract between the sponsor and the US government. It is not affected by the issues settled in a divorce action. The divorce settlement does not preclude an action based on the I-864 obligation.

Do a Google search of the Usenet newsgroup <alt.visa.us.marriage-based> for posts on the subject by folinskyinla.

Yodrak

Yodrak:

As I mentioned and the Wheeler brief on ILW indicated that it is unheard of for any gov't agency to try to use the I-864 to get reimbursement for means-tested benefits (welfare, food stamps etc.)

That is what my immigration lawyer told me.

However, other people brought up the fact that there have been a handful of actions (again mentioned in the Wheeler brief on ILW) where disgruntled ex-spouses have sued for support under the I-864.

My worry, after reading the info presented here, was that the I-864 could be used to ask for additional support.

I'm not worried about the gov't agency side of things, I was worried about her using this to try and demand additional support. My family law attorney feels that the "NON-modifiable" clause regarding support in the Divorce decree protects me from any second actions she might feel she was entitled to.

The US Government can basically do whatever it wants to anyway, so I don't feel I can get protection in that event. Even the Wheeler brief on ILW.com says he has never heard of this being used.

To quote Atty Wheeler on the GOVERNMENT issue

from: http://www.ilw.com/articles/2006,0110-wheeler.shtm

it is important to provide a realistic assessment of the probability of actions to enforce the affidavit of support. The author is not aware of any successful actions to obtain reimbursement for means-tested benefit programs obtained by the alien...

and he further goes on to say, regarding the SUPPORT issue (by the immigrant ex-spouse)

Over the course of the last nine years, only a handful of actions have been brought against sponsors by the sponsored alien, and all have been by disgruntled spouses.

I believe the issue brought up in the Pennsylvania case was a support issue FROM the ex-spouse.

My interest is in making sure my ex-spouse does not attempt to use the I-864 for additional support. That is where my family-law attorney felt the "non-modifiable" clause in the divorce decree would protect me. That does preclude HER from bringing an action for support using the I-864, as was done in the Pennsylvania case cited as well.

-- Dan