Be Very Aware of the Affidavit of Support trap

[Deputy Purple 1,294]

And Bob 4 Ana.... I hate to tell you but according to the form it says "at least 125%" and if you don't think she is entitled cause it is not a contract between you and her then why are the courts awarding the ex's with the support? Read the info at the link Bob.

I just want to inform. read the info at this link at www.the freelibrary.com

<a href="http://www.thefreelibrary.com/Immigration+form+I-864+(affidavit+of+support)+and+efforts+to+collect...-a0216412343">Immigration form I-864 (affidavit of support) and efforts to collect damages as support obligations against divorced spouses - what practitioners need to know.</a>

Read and eat your words. http://affidavitsupp...t-case-history/

I wish all of you good luck and happy marriages.

First, if you want people to follow your links then please post links that actually work.

Second, every court case has to be evaluated on the merits of the case including the views of the judge adjudicating it and each side's lawyer. Often time contract cases are won or lost on the skill of your lawyer. Further, just because someone chickens out and settles out of court that doesn't mean they would have lost in front of a judge, it simply means they were afraid of losing enough to take the buyout option. Tell me if the other side had such a good case why would they offer a out of court settlement for less than they could have been awarded by a judge? The answer is because they had doubts about the outcome in court...

The bottom line here is maybe if you knew your wife a little better BEFORE you imported & married her then you wouldn't be in this situation.

[sori i sponsored 0]

I apologize. In my opening sentence I said that the contract looks like contract between the sponsor and the alien but I meant to say it looks like a contract between the sponsor and the government. Again, to those that don't think what I say is true I hope you enjoy eating your words.

Somewhere, someone will be in the 90 days fiance' "get to know each other time" before you have to get married and maybe things aren't go so well. I hope this might enlighten you as to what to think before you say, well what's the worse that can happen if I do get married hoping that it will work itself out. Maybe it will and maybe it won't.

Read and know the truth..... Peace out and happy marriages!

[KayDeeCee 4,893]

I apologize. In my opening sentence I said that the contract looks like contract between the sponsor and the alien but I meant to say it looks like a contract between the sponsor and the government. Again, to those that don't think what I say is true I hope you enjoy eating your words.

Somewhere, someone will be in the 90 days fiance' "get to know each other time" before you have to get married and maybe things aren't go so well. I hope this might enlighten you as to what to think before you say, well what's the worse that can happen if I do get married hoping that it will work itself out. Maybe it will and maybe it won't.

Read and know the truth..... Peace out and happy marriages!

The 90 days is not meant to be a "get to know each other time." You should already know them and know that marriage to them is what you want before you petition for a K-1 fiance(e) visa.

However, let's say you sign an I-864 for the visa interview before your fiance arrives. If things don't work out and you do not marry within the 90 days, then the immigrant has to leave. The I-864 contract ends at that time.

[sori i sponsored 0]

OK all,

I'm not here to get into a whos' right and who's wrong but facts are stubborn little things.

And BoB 4 Ana, I "knew my wife for 3 years before we married. And who can forsee the future. And sorry for not being as computer savvy in my ability to add a link but If you want to reas it for yourself I am adding a little of this information from Geofffey Hoffman, practicing attorney. The post goes on for a while so I will try to only add what is most revalent.

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 law suit for support, and then going back to state court to sue, yet aagain, for the following year's support. An impossible scenario? Not any longer.

The I-864, affidavit of support, is a little-known form (outside of immigration law) that has become pertinent in family law and federal court litigation. The form is required as part of the application process for an alien who seeks to obtain lawful permanent residence in the U.S. (1) The form requires that a U.S. citizen or lawful permanent resident petitioner agrees to support the beneficiary at 125 percent of the applicable federal poverty guidelines in the event the intended immigrant earns less than that amount or becomes a public charge. (2) Although the agreement is between the petitioner and the federal government, all courts that have considered the issue have held that the agreement constitutes a binding, enforceable contract. (3)

Efforts on the part of divorced spouses in particular to show that they are entitled to support payments under the I-864 have been successful in the federal courts. (5) In Stump v. Stump, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005), the original case to explore this issue, the plaintiff wife was a Russian citizen who entered the U.S. on a fiance visa. The defendant husband married the plaintiff wife shortly after her arrival in the U.S. The defendant husband signed the affidavit of support and agreed to provide his wife with support necessary to maintain her at an income in the amount of at least 125 percent of the federal poverty guidelines. According to the court, the defendant husband "made this promise as consideration for the plaintiff's application not being denied on the grounds that she was an immigrant likely to become a public charge." (6)

Mr. Stump defended by arguing that his wife had failed to plead essential elements required to state a claim for relief in that she did not allege receiving any "means-tested benefits" from any "federal, state, or local government," and did not allege that she had attained permanent resident status. (7)

The court rejected this argument, and instead granted summary judgment on liability in favor of the plaintiff wife. With respect to damages, the court found that since the plaintiff wife was now divorced, her household size would be one person, as opposed to three, which was the original size of the household at the inception of the marriage. (8) The reduced household size lessens the amount of damages to which Mrs. Stump would otherwise be entitled, because the federal poverty guidelines are dependent on number of persons in the household. (9)

This is the outcome from Cheshire Vs Cheshire - I-864 Affidavit of Support Enforcement in Divorce Action:

In addition to the statutory language, the express terms of Form 1-864 provide that by signing the form, defendant obligated himself "to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at [*9] least 125 percent of the Federal poverty guidelines." (Doc. 1 at 7, Affidavit of Support Form I-864 at 4.) By executing Form I-864, defendant agreed to its terms, "acknowledging that section 213A(a)(1)(B) of the [iNA] grants the sponsored immigrant(s) . . . standing to sue me for failing to meet my obligations under this affidavit of support." (Doc. 1 at 9, Affidavit of Support Form I-864 at 6.) Defendant "agree[d] to submit to the personal jurisdiction of any court of the United States or of any State, territory, or possession of the United States if the court has subject matter jurisdiction of a civil lawsuit to enforce this affidavit of support." (Id.) Thus, the very terms of Form I-864 bind defendant to provide plaintiff with the requisite amount of support.

Further, federal courts in other jurisdictions have consistently found that Form 1-864 constitutes a legally binding and enforceable contract between a sponsored immigrant and the sponsor executing the form. See Schwartz v. Schwartz, No. CIV-04-770-M, 2005 WL 1242171, at *1,*2 (W.D. Okla. May 10, 2005) (finding affidavit of support Form I-864 signed by ex-husband sponsor on ex-wife sponsored immigrant's [*10] behalf a valid and enforceable contract); Stump, 2005 WL 1290658, at *1, *10, *11 (finding Form I-864 a binding contract and enforcing its terms, where form was executed by husband sponsor on wife sponsored immigrant's behalf, even where divorce was pending between husband and wife); Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dist. LEXIS 28961, at *1, *7-8 (M.D. La. May 27, 2004) (finding affidavit of support Form I-864 an enforceable contract between ex-wife sponsored immigrant and ex-husband sponsor). Both by law and by its terms, Form I-864, signed by defendant, is a valid contract.

[sori i sponsored 0]

The 90 days is not meant to be a "get to know each other time." You should already know them and know that marriage to them is what you want before you petition for a K-1 fiance(e) visa.

However, let's say you sign an I-864 for the visa interview before your fiance arrives. If things don't work out and you do not marry within the 90 days, then the immigrant has to leave. The I-864 contract ends at that time.

[sori i sponsored 0]

Yes, JAY KAY,

the 90 days is not really intended to be a "get to know each other" time but really, how many of us have the luxury of more than 2 or 3 weeks of vacation a year. I knew my fiance' for 3 years through chats the first year and visits the next two years. We talked almost everyday. But as they say, You never really know someone till you live with them. And, I am not "they", but I concur.The reality of the I-864.doc

I see many here with fiance's from the Philippines and other far away places and I serioulsy doubt that they spent more than a few weeks a year together in person.

Of course we all WANT to marry them, Isn't that the reason we all have done or are doing this?? Really, you think anyone goes through the time and expense because we DON'T want to marry them.

Like a said I'm not here to break up anyone, just to let you know EXACTLY what the form is used for and hope no one ever gets sued like so many others.

[payxibka 10,045]

OK all,

I'm not here to get into a whos' right and who's wrong but facts are stubborn little things.

And BoB 4 Ana, I "knew my wife for 3 years before we married. And who can forsee the future. And sorry for not being as computer savvy in my ability to add a link but If you want to reas it for yourself I am adding a little of this information from Geofffey Hoffman, practicing attorney. The post goes on for a while so I will try to only add what is most revalent.

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 law suit for support, and then going back to state court to sue, yet aagain, for the following year's support. An impossible scenario? Not any longer.

The I-864, affidavit of support, is a little-known form (outside of immigration law) that has become pertinent in family law and federal court litigation. The form is required as part of the application process for an alien who seeks to obtain lawful permanent residence in the U.S. (1) The form requires that a U.S. citizen or lawful permanent resident petitioner agrees to support the beneficiary at 125 percent of the applicable federal poverty guidelines in the event the intended immigrant earns less than that amount or becomes a public charge. (2) Although the agreement is between the petitioner and the federal government, all courts that have considered the issue have held that the agreement constitutes a binding, enforceable contract. (3)

Efforts on the part of divorced spouses in particular to show that they are entitled to support payments under the I-864 have been successful in the federal courts. (5) In Stump v. Stump, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005), the original case to explore this issue, the plaintiff wife was a Russian citizen who entered the U.S. on a fiance visa. The defendant husband married the plaintiff wife shortly after her arrival in the U.S. The defendant husband signed the affidavit of support and agreed to provide his wife with support necessary to maintain her at an income in the amount of at least 125 percent of the federal poverty guidelines. According to the court, the defendant husband "made this promise as consideration for the plaintiff's application not being denied on the grounds that she was an immigrant likely to become a public charge." (6)

Mr. Stump defended by arguing that his wife had failed to plead essential elements required to state a claim for relief in that she did not allege receiving any "means-tested benefits" from any "federal, state, or local government," and did not allege that she had attained permanent resident status. (7)

The court rejected this argument, and instead granted summary judgment on liability in favor of the plaintiff wife. With respect to damages, the court found that since the plaintiff wife was now divorced, her household size would be one person, as opposed to three, which was the original size of the household at the inception of the marriage. (8) The reduced household size lessens the amount of damages to which Mrs. Stump would otherwise be entitled, because the federal poverty guidelines are dependent on number of persons in the household. (9)

This is the outcome from Cheshire Vs Cheshire - I-864 Affidavit of Support Enforcement in Divorce Action:

In addition to the statutory language, the express terms of Form 1-864 provide that by signing the form, defendant obligated himself "to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at [*9] least 125 percent of the Federal poverty guidelines." (Doc. 1 at 7, Affidavit of Support Form I-864 at 4.) By executing Form I-864, defendant agreed to its terms, "acknowledging that section 213A(a)(1)(B) of the [iNA] grants the sponsored immigrant(s) . . . standing to sue me for failing to meet my obligations under this affidavit of support." (Doc. 1 at 9, Affidavit of Support Form I-864 at 6.) Defendant "agree[d] to submit to the personal jurisdiction of any court of the United States or of any State, territory, or possession of the United States if the court has subject matter jurisdiction of a civil lawsuit to enforce this affidavit of support." (Id.) Thus, the very terms of Form I-864 bind defendant to provide plaintiff with the requisite amount of support.

Further, federal courts in other jurisdictions have consistently found that Form 1-864 constitutes a legally binding and enforceable contract between a sponsored immigrant and the sponsor executing the form. See Schwartz v. Schwartz, No. CIV-04-770-M, 2005 WL 1242171, at *1,*2 (W.D. Okla. May 10, 2005) (finding affidavit of support Form I-864 signed by ex-husband sponsor on ex-wife sponsored immigrant's [*10] behalf a valid and enforceable contract); Stump, 2005 WL 1290658, at *1, *10, *11 (finding Form I-864 a binding contract and enforcing its terms, where form was executed by husband sponsor on wife sponsored immigrant's behalf, even where divorce was pending between husband and wife); Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dist. LEXIS 28961, at *1, *7-8 (M.D. La. May 27, 2004) (finding affidavit of support Form I-864 an enforceable contract between ex-wife sponsored immigrant and ex-husband sponsor). Both by law and by its terms, Form I-864, signed by defendant, is a valid contract.

These cases are all 6-7 years old and are well known. If there was such a proliferation of application of this based on this case law precedence, then you would think you could find much more recent activity. I have not found where these precedents have been applied in other cases.

[OnMyWayID 1,489]

Mr. Stump defended by arguing that his wife had failed to plead essential elements required to state a claim for relief in that she did not allege receiving any "means-tested benefits" from any "federal, state, or local government," and did not allege that she had attained permanent resident status. (7)

Yeah OK, I see what your saying and it has some merit... Some spooky cases and bad decisions on the courts part.. Looks like no men have ever been able to collect on the I-864 in the last 10 years so no fear for female USCs anyways

I think if someone is worried about this help them become a citizen as fast as possible!

[sori i sponsored 0]

These cases are all 6-7 years old and are well known. If there was such a proliferation of application of this based on this case law precedence, then you would think you could find much more recent activity. I have not found where these precedents have been applied in other cases.

They may be well known but many on the site do not know and that was my initial intent. How many of these cases shoud I list before people understand how this form is being used, 5,6,7, 20? Well, isn't it obvious that once your defense lawyer sees these cases he has no reason to think their client can win. Their money might be better spent saving for the monthly payments or negotiating with the green card holder to lessen the damages. I don't think people are debating whether the earth is round or flat anymore.

Also, with theses case already tried in court, why would anyone spend any more money on lawyers trying in defense of enforcement.

My one and only position here was to inform those of you out there of the realties. I can bet by the posting I've read here that FEW few people here are completely aware and that divorcing a sponsored immigrant is NOTHING like divorcing a citizen, as you can see by inky's replies, Bob 4 Ana's replies and others. Heaven forbid any one of you have to go through divorce by fault or no fault of your own.

We all have our reasons why we went this route to find a wife/husband. Some of them are very similar to mine. Maybe you are older than she is, you appreciate his or her old fashioned values, maybe you think Americans are jaded and materialistic, etc., etc.

And, I did the same as some of you have done, chats online with webcam, yearly visits to meet family members overseas, love letters sent, gifts in Balikbayan boxes(those marrying filipino wives understand this word), monies sent through Western Union or the debit card you left them on one of your visits to help your loved one because after all some of these countries are impoverished and as "good men and women" we don't want to appear cheap as it would be degrading to your fiance' in front of her family. And I say "her" because most fiance's here are female from the Philipines (not to infer that she is financially deficient, but truth is many are and an overwhelming number of fiance's are from there.

Good luck and happy marriages

[Inky 1,110]

This guy is a TROLL, he joined the forums yesterday and starts all of this arguments and keeps posting on it.

You had a crappy marriage, we get it. You didn't read instructions, we get it. Get over it.

[JimVaPhuong 4,863]

They may be well known but many on the site do not know and that was my initial intent. How many of these cases shoud I list before people understand how this form is being used, 5,6,7, 20? Well, isn't it obvious that once your defense lawyer sees these cases he has no reason to think their client can win. Their money might be better spent saving for the monthly payments or negotiating with the green card holder to lessen the damages. I don't think people are debating whether the earth is round or flat anymore.

Also, with theses case already tried in court, why would anyone spend any more money on lawyers trying in defense of enforcement.

My one and only position here was to inform those of you out there of the realties. I can bet by the posting I've read here that FEW few people here are completely aware and that divorcing a sponsored immigrant is NOTHING like divorcing a citizen, as you can see by inky's replies, Bob 4 Ana's replies and others. Heaven forbid any one of you have to go through divorce by fault or no fault of your own.

We all have our reasons why we went this route to find a wife/husband. Some of them are very similar to mine. Maybe you are older than she is, you appreciate his or her old fashioned values, maybe you think Americans are jaded and materialistic, etc., etc.

And, I did the same as some of you have done, chats online with webcam, yearly visits to meet family members overseas, love letters sent, gifts in Balikbayan boxes(those marrying filipino wives understand this word), monies sent through Western Union or the debit card you left them on one of your visits to help your loved one because after all some of these countries are impoverished and as "good men and women" we don't want to appear cheap as it would be degrading to your fiance' in front of her family. And I say "her" because most fiance's here are female from the Philipines (not to infer that she is financially deficient, but truth is many are and an overwhelming number of fiance's are from there.

Good luck and happy marriages

Almost all of the cases which have been successful were denied in family court, subsequently sued in civil court and denied, and ultimately upheld in appellate court. The courts usually also offset any support the sponsor had to pay by the amount of income the immigrant already received and any other support already ordered by the family court.

In addition, no court has ever held that a sponsor is obligated to maintain an immigrants income at more than 125% of the poverty guidelines. Presuming the immigrant has no income and that there are no other dependent family members to include in the "household size", this amounts to a little over $1000 per month. If you earn a decent living in California then a family court could easily order you to pay this much or much more in spousal support. If you were married more than 10 years then the order could be for alimony rather than spousal support, which makes you obligated potentially for the rest of your life. Any suit based on the affidavit of support would be moot since the alimony would already exceed the amount required under INA 213A. What's more, a request for spousal support in a California family court based on the I-864 would probably fail since the state's family code already provides a formula which family court judges are compelled to use in determining the level of support. Other states have similar provisions, which is why these cases usually end up in civil courts.

Everyone who comes to this site is strongly encouraged to investigate with due diligence everything that is required of them in this process. The possibility of being sued for support based on the I-864 is real, but in reality it doesn't happen very often. Your biggest risk comes if your income barely qualifies to sign an I-864, or if you marry a deadbeat who has no intention of working to support themselves in the US. In the first case, an order to pay support based on the I-864 would severely stress your income. In the second, you'd likely get hit with the maximum amount of support ordered.

There have been hundreds of cases on VJ of immigrants who divorced their US citizen spouses and sought to retain their immigration benefits. I've not yet read a single case on VJ of an immigrant who successfully sued for support based on the I-864. This combined with the fact that there are a relatively small number of successful cases to found on the internet leads me to believe that this doesn't happen often. It's a risk that should be considered, along with other factors such as the sponsor's ability to actually SUPPORT the immigrant they are sponsoring, as well as the immigrant's ability to support themselves.

[Robert&Karen 264]

[Dan & Jenni 457]

is it just me or is this conversation going round and round in circles??

[Inky 1,110]

Like i said hes a troll lol he joined 2 days ago and this is the only post that he ever made, joined the same day as the James guy who is complaining about his wife and they are friends listed. seems connected!

[Fandango 1,439]

And this is to Anita Cocktail

I do know what the form says I rad it and re-read it and I also KNOW what the divorce lawyers are using it for AND WINNING!!!!

If you all look into these alegations that I have brought up and find that I am wrong, let me know.

BUT, If you look into what I am saying and find that I am right. Please let them know here also. I am not talking from what the form says but what in REALITY how there has been no one, let me repeat NO ONE that has been able to defend against an ex-spouse immigrant/green card holder that used this EXACT form against them.

At the end of the day, do you really think that a divorce won't cost you anything, especially when you import a spouse? EVEN IF what you are saying is true - and yes, I believe there's verbiage in the 1864 that is vague and could open the door to be used as a supporting document within divorce proceeding - does that mean you were somehow tricked??? Should the immigrant spouse use it as ammo in a divorce? Why not? If you have a spouse who is dependent upon your income, and then there is a divorce...what is the spouse supposed to do? Become homeless? This goes for USC spouses as well, but I think it should be especially true for immigrant spouses. Where is your sense of responsibility to the huge choice you made to uproot someone from another country and pluck them here?

The bottom line is, no one pays too much attention to that document when they are all loved up. And then when the sh!t hits the fan, there's more than one thread here like 'how can I get out of the 1864????' The language on that is clear within the document itself. The '40 quarters of work lasting as much as 10 years' is wrong...it's at the minimum, 10 years. 4 quarters = 1 year. 10 years MINIMUM. If the spouse doesn't work/work consecutively through....that requirement in theory could NEVER be satisfied.

There's got to be a bit of personal responsibility here. It's not my job to pay for someone else's immigrant spouse who is be getting means tested benefits. It's kinda like high interest credit cards....no one holds a gun to your head (collective you, not specifically you)...they lay all the terms out there in the fine print....and you just sign away because you just HAVE to have that 60 inch big screen. But when the bills come in and the bloom is off the rose, and you see that you're paying 28.9% interest...all of a sudden, it's the 'evil bank's fault'. Sorry, that's not the way it works.

I admire you starting this thread, because I think a lot of people are very short sighted in really contemplating what they are doing while being apart from the one they love. It's all very romantic, isn't it??? 'oh the big bad gov't has no effing right to tell me who I can/can't love' and the like has been typed here more times than I can recall. You know what else has been typed ad nauseum? 'How can I get out of the 1864?' 'How can I get my spouse deported cos she's a crazy *!@%!#?' Questions and threads which clearly show that the petitioner did not give his/her due diligence to understanding the gravity of what they were committing to BEFORE THEY DID IT. Is that someone else's fault? No. Did the words on the 1864 somehow rearrange themselves after the petitioner committed to it? No they didn't.

But at the end of the day, it's a moot point, because a petitioner in the throes of the ever romantic, Richard Marx-esque 'waiting for you' phase will never think of the 'what ifs' in a bad way. Never gonna happen.