divorce processed- update

[ml82 1]

so jim, how do you think this applies in my case, since her AOS has already been denied? do you think my wife still has a chance of adjusting based on this new law? you're right though, it does seem a bit vague.

[Haarp425 26]

hmmmm interesting.... this is possible even though i withdrew my sponsorship with her?

then i wonder why she is emailing me these VAWA articles to me.

Do you remember the first affidavit of support you filled out I-134? It should still be in effect.

Line 5. I am willing to receive, maintain, and support the person(s) named in item 3. I am ready and willing to deposit a bond, if necessary, to guarantee that such person(s) will not become a public charge during his or her stay in the United States, or to guarantee that the above named person(s) will maintain his or her nonimmigrant status, if admitted temporarily, and will depart prior to the expiration of his or her authorized stay in the United States.

She is currently in a period of authorized stay by the Attorney General when she filed AOS prior to the expiration of lawful status.

If her AOS is denied, she and her lawyer might use that paragraph 4 for her defense.

[JimVaPhuong 4,863]

so jim, how do you think this applies in my case, since her AOS has already been denied? do you think my wife still has a chance of adjusting based on this new law? you're right though, it does seem a bit vague.

There is no new law. That was a policy statement from the Executive Office of Immigration Review. I've never heard of an AOS petition being approved when it was submitted AFTER divorce except in VAWA and asylum/refugee cases. Even in the specific case that the EOIR was dealing with in that policy statement, the immigrant had filed the AOS petition and it was adjudicated before they were divorced. If that changes ONLY for K1 visa holders than it would be an extraordinary departure from long standing DHS policy.

Do you remember the first affidavit of support you filled out I-134? It should still be in effect.

Line 5. I am willing to receive, maintain, and support the person(s) named in item 3. I am ready and willing to deposit a bond, if necessary, to guarantee that such person(s) will not become a public charge during his or her stay in the United States, or to guarantee that the above named person(s) will maintain his or her nonimmigrant status, if admitted temporarily, and will depart prior to the expiration of his or her authorized stay in the United States.

She is currently in a period of authorized stay by the Attorney General when she filed AOS prior to the expiration of lawful status.

If her AOS is denied, she and her lawyer might use that paragraph 4 for her defense.

The I-134 has been repeatedly struck down in court as unenforceable. The San Diego County v. Viloria case back in 1969 was the last major case to test the enforceability of the I-134, and it failed. The lack of enforceability led to the IIRIRA Act of 1996, which required a legally enforceable affidavit of support for immigrants. Section 213A was added to the INA, and the I-864 was produced as a result.

Both the Adjudicators Field Manual (USCIS) and the Foreign Affairs Manual (DOS) advise officers that the I-134 is not legally binding, and is not to be given the same weight as an I-864.

She is NOT currently in a period of authorized stay. Her AOS was denied when the OP withdrew his affidavit of support. She's working with a lawyer to refile. There is no way they could use his I-134 as a basis to resurrect the original AOS petition. The law specifically allows him to withdraw the I-864 at any time prior to the approval of the immigration benefit. Without an enforceable contract under INA 213A, her AOS based on section 245(a) or 245(d) cannot be approved. Her only option now is VAWA.

[rlogan 2,036]

thanks for the info. all of this talk makes me so stressed out, but what you're saying makes sense.

about this original letter that my parents wanted me to write- the one about entering this marriage in good faith. jimvaphuong mentioned that to file a VAWA claim, you need proof to show that you entered the marriage in good faith. i should definitely not play into their hands, right? they kept insisting that if i write this letter, everything will be fine because their lawyer "said so."

the divorce depositions are for april 11th, my wife has until march 28th to respond to the divorce complaint. do you think it's likely for my wife to contest it? is it a "smart" move on their part- perhaps to stall time. i have been away for a year and 9 months at this point and my divorce lawyer said they really don't have any chance even if they contest it. i would assume it would be wasted money and effort on their part to contest the divorce. however, if they do, i'd have to fly back to the states and appear in court. what do you think?

I wouldn't trust a thing your parents say. You are correct about not playing into their hands.

Hard to say what they're going to do, but if they do contest then just put one foot in front of the other. Bear the pain. So sorry to hear how stressed out it has made you. Look straignt at your parents for the cause. Not caring in the slightest what kind of anguish they put their son through.

Not once through all of this have you related how your parents showed you understanding and compassion. I feel very badly for you.

Divorce your parents.

[Haarp425 26]

The law specifically allows him to withdraw the I-864 at any time prior to the approval of the immigration benefit. Without an enforceable contract under INA 213A, her AOS based on section 245(a) or 245(d) cannot be approved. Her only option now is VAWA.

True, he may withdraw the I-864 and it will cause the denial of the I-485 application and her option might be VAWA. She has to prove she was abused under VAWA.

According to www.uscis.gov/files/pressrelease/AffSuppAFM062706.pdf

Snippet: Page 26 of the document.

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(o) Termination of Sponsor’s Obligation and Enforcement. The obligations created under Form I-864 and I-864A terminate when the sponsored alien:

• Becomes naturalized;

• Is credited with at least 40 quarters of employment in the Social Security system;

• Loses or abandons his or her lawful permanent resident status; or

• Dies.

Note: For any qualifying quarter to be creditable for any period beginning on or after December 31, 1996, the alien must not have received any Federal means-tested public benefit during that quarter. A Federal means-tested public benefit is any public benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds defines as a Federal means-tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193). Federal means tested benefits include: SSI (Supplemental Security income), TANF (Temporary Assistance for Needy Families), food stamps, Medicaid, and State Child Health Insurance Programs (SCHIP). State and local means tested benefits vary by jurisdiction.

Note: The qualifying quarters worked by a parent of, or the spouse of such alien during the marriage to the alien may often be credited to the alien beneficiary.

If the sponsored immigrant is the sponsor’s child, the legal obligation made in the Affidavit of Support is not terminated by the child’s adoption after acquiring permanent residence.

If the sponsored immigrant is the sponsor’s spouse, divorce will not terminate the legal obligation made in the Affidavit of Support.

Even when the support obligation has been terminated, the sponsor, or the sponsor’s estate may still be held liable for any reimbursable amount that accrued before the termination of the obligation.

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It will have an interesting implications for adjustment of status when the sponsors wants to terminate their financial responsibility for the sponsored relative by notifying USCIS in writing of their disavowal of the I-864 prior to the adjudication of the adjustment of status.

In Stump v. Stump, 2005 U.S. Dist. LEXIS 26022. One court found that in adjustment of status cases, the I-864 is enforceable from the date it is signed.

According to this article http://www.tcdailyplanet.net/node/2701

Snippet:

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One court found that in adjustment of status cases, the I-864 is enforceable from the date it is signed. Stump v. Stump, 2005 U.S. Dist. LEXIS 26022.

In Stump v. Stump, the court’s analysis focused on the statute 8 U.S.C. 1183a(a)(1) (A) rather than the regulations to determine when the contract became binding and enforceable. The statute states the sponsor must agree to support the sponsored alien “during the period in which the affidavit is enforceable.”

To determine the period, the court looked at 8 U.S.C. §1182(a)(4), which defines inadmissibility of an alien as “any alien who,…is likely at any time to become a public charge is inadmissible.” Focusing on the words “any alien” and “at any time,” the court found that using the date that the alien adjusted status rather than the date the sponsor signed the affidavit would defeat Congress’ purpose for the affidavit of support, which is to ensure a minimum level of income support to the sponsored relative without reliance on means-tested public benefits.

The case has interesting implications for adjustment of status sponsors who seek to void their financial responsibility for the sponsored relative by notifying USCIS in writing of their disavowal of the I-864 prior to the adjudication of the adjustment of status. Typically, the sponsor also tells USCIS that there is no longer a marital relationship. USCIS then denies or revokes the I-130 Petition for Alien Relative, which then triggers denial of the I-485 Adjustment of Status Application. Under Stump v. Stump, such sponsors would remain liable for financial support because the I-864 becomes enforceable on the date signed, not the date of adjustment of status.

The I-864 states that one condition under which a sponsor’s obligations end is when the sponsored relative “No longer has lawful permanent resident status and has departed the United States.” In Stump v. Stump, the court found that both loss of status and permanent departure are required to end the obligation. Even if adjustment of status is denied, sponsors remain liable to support sponsored relatives until such relatives leave the U.S. or another qualifying party signs an I-864 on behalf of the alien.

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We will see how it plays out.

[JimVaPhuong 4,863]

True, he may withdraw the I-864 and it will cause the denial of the I-485 application and her option might be VAWA. She has to prove she was abused under VAWA.

snip...

The article you linked to has nothing to do with USCIS policy. It regards a civil action taken against a sponsor by an immigrant seeking support. It also focused narrowly on 8 CFR 1182 to determine the period of enforceability while ignoring 8 CFR 1205.1, which provides that a person can withdraw any petition by written notice anytime before the immigration benefit has been approved.

Quoting from the USCIS document you linked to:

(h) Withdrawal of an affidavit of support or Form I-864A.

A person who has signed a Form I-864, I-864EZ or I-864A may withdraw the Form. If the person does so, USCIS will adjudicate the application for adjustment of status as if the withdrawn Form I-864, I-864A or I-864EZ had never been filed. In an adjustment of status case, a withdrawal of the Form I-864, I-864EZ or I-864A is not effective unless it is in writing and USCIS actually receives the withdrawal before the final decision on the adjustment application. In an immigrant visa case, once a consular officer has issued an immigrant visa, no Form I-864, I-864EZ or I-864A may be withdrawn unless the visa petitioner also withdraws the visa petition.

INA 213A requires an affidavit of support from the visa petitioner. He withdrew it, and her AOS was denied as a result. His I-864 cannot be resurrected because he rightfully withdrew it, and the I-134 cannot be used in it's place because it doesn't meet the legal enforceability requirements of INA 213A.

Could she sue him for support using the I-864 as a basis? Perhaps. Depends on the state she lives in. Some states have strict guidelines the judge is required to follow when determining spousal support, and those guidelines often won't take into account any contracts or agreements made prior to the divorce. She may have a chance in a civil rather than family court. Either way, getting a support order is not going to help her get a green card.