Does not look good

[zauberblume 0]

With this in mind, it would suggest that a prenup be all the more important, and especially, perhaps, in the case of a US citizen, to protect a party from the potential of any future and/or frivolous lawsuits.

Memaid, this is an interesting idea.

Hear me out and see what you think.

There is a requirement for the I-864 when the AoS takes place. It is the duty of the petitioner to file an I-864 for the beneficiary. This is legally required by the US government. It places the financial responsiblities on the petitioner.

Now, here's my question. Does the I-864 preclude the petitioner from engaging with the beneficiary in a private contract which would require the beneficiary to pay back any and all expenses to the petitioner which may be assessed by the US government in the event of a divorce?

I understand the I-864 is a contractual agreement between the US government and the petitioner. But does the I-864 contract specifically preclude the petitioner from entering in another contract with his or her beneficiary to specifically require the beneficiary to pay back any and all charges demanded by the US government upon the petitioner?

Will this hold up in civil court?

Mermaid,

That's why I'm talking about this issue because it is one of those moments where a pre-nup might be a smart idea for those concerned about potential frivolous lawsuits.

What Sir Lance asks is exactly what I mean by a pre-nup "running into" the Affidavit of Support, or rather, vice versa. As far as I can tell, there is no case law on how the pre-nuptial agreement impacts, if it does, the Affidavit of Support. But I think it's important that those who want a pre-nup employ a good attorney who is well-versed in immigration law.

--Z

[diadromous mermaid 36]

With this in mind, it would suggest that a prenup be all the more important, and especially, perhaps, in the case of a US citizen, to protect a party from the potential of any future and/or frivolous lawsuits.

Memaid, this is an interesting idea.

Hear me out and see what you think.

There is a requirement for the I-864 when the AoS takes place. It is the duty of the petitioner to file an I-864 for the beneficiary. This is legally required by the US government. It places the financial responsiblities on the petitioner.

Now, here's my question. Does the I-864 preclude the petitioner from engaging with the beneficiary in a private contract which would require the beneficiary to pay back any and all expenses to the petitioner which may be assessed by the US government in the event of a divorce?

I understand the I-864 is a contractual agreement between the US government and the petitioner. But does the I-864 contract specifically preclude the petitioner from entering in another contract with his or her beneficiary to specifically require the beneficiary to pay back any and all charges demanded by the US government upon the petitioner?

Will this hold up in civil court?

Mermaid,

That's why I'm talking about this issue because it is one of those moments where a pre-nup might be a smart idea for those concerned about potential frivolous lawsuits.

What Sir Lance asks is exactly what I mean by a pre-nup "running into" the Affidavit of Support, or rather, vice versa. As far as I can tell, there is no case law on how the pre-nuptial agreement impacts, if it does, the Affidavit of Support. But I think it's important that those who want a pre-nup employ a good attorney who is well-versed in immigration law.

--Z

SirLancelot,

Since the sponsor, when signing the I-864, admits that the sponsored immigrant may sue to enforce the contract, I suspect that there may be only a couple of defences (one that comes to mind is if the sponsor/petitioner were to allege and prove fraudulent intent on the part of the alien, for example), but generally, with an extant and endorsed Affidavit of Support, there could be no factual issues in dispute with respect to the sponsor's liability.

So, yes, in that case, one could ostensibly draw up a separate agreement, perhaps a prenup or even a post-nutpial agreement between the alien and US citizen spouse, since the submission of the I-864 occurs at the adjustment of status stage which follows marriage. I'd imagine that any supplementary agreement would need to address the consideration that both the sponsored alien and the US citizen spouse are to receive, and should stipulate that the alien would renounce all claim and indemnify the sponsor from any maintenance (spousal support) that would be liable due to the alien, from the sponsor. under the terms of the Affidavit of Support.

Absent a secondary agreement like this, the manner in which a prenup could work would be to protect the sponsor from collateral and somewhat punitive damage as a result of a failing marriage. How, specifically, that could be structured, I could only hazard a guess, as there is no limit to the length of the US citizen's exposure under the terms of the I-864. It would be prudent, in the case of a sponsor, with perhaps even lesser means, to at least preserve some separate property (which could be liquidated to meet the liability of the I-864, should such a suit by the alien ex=spouse ensue).

Does it sound horribly business-like? Indeed. But imagine, if you will a hypothetical case (a little exaggerated to demonstrate a point)

This hypothetical case involves a US citizen of more significant means and a sponsored immigrant that brings to the marriage little in the way of assets, skills or motivation. The US citizen marries bringing some personal assets, not a huge portfolio of property, but more than the alien. The marriage ends on the whim of the alien and in a state that acknowledges 'irreconcilable differences' as grounds for marriage dissolution. The US citizen faces a divorce that he cannot prevent, and still obliged under the Affidavit of Support for a period of time to be determined, largely, by the alien and his or her motivation and drive. The credits accrued during the period of time the parties were married, under the Affidavit of Support, by the US citizen spouse no longer apply, and the satisafaction of the I-864, is pushed back accordingly. It is quite conceivable that at this point, the US citizen spouse is once again facing "liability' under the contract of possibly close to 40-quarters worth of credits. Now throw into the mix that said sponsored immigrant has little to no motivation and takes no steps to secure work, but, instead, is aware of the opportunity to take separate action in any court to enforce the contract.

The alien is awarded his or her requisite portion of the marital estate through equitable distribution (that estate being largely the separate property that the US citizen brought to the union) and then, in turn, proceeds to file a separate suit in Federal court for the spousal 'maintenance'. Since the suits can be held in different venues, it is highly possible that the US citizen spouse ends up with much less than his or her portion of the marital estate, and quite possibly is forced to liquidate whatever he (or she) was awarded by the family court in the divorce to satisfy the issue of damages in the Federal Court suit. Damages that could approximate $12,000 per year ad infinitum (or until one of the triggering events satisfies the terms of the I-864).

Bear in mind that in either of the legal proceedings, the US citizen spouse can do nothing to prevent this. Not the divorce, nor the liability per the I-864. The second lawsuit moves to determing the 'damages' to be awarded to the alien ex-spouse. Being unmotivated, the alien makes no effort to gain employment, and is not compelled to either (the Federal court cases that have established the precedent for these 'contractual spousal maintenance' obligations held that an alien has not requirement to mitigate the damages). So, for all intents and purposes, the US citizen could conceivably be looking at paying out the 125% poverty guideline level until the alien, naturalises (and there's no specific pecuniary incentive for an alien to do that), dies, or leaves the USA permanently.

It could mean financial disaster for the US citizen.

[SirLancelot 1]

So, for all intents and purposes, the US citizen could conceivably be looking at paying out the 125% poverty guideline level until the alien, naturalises (and there's no specific pecuniary incentive for an alien to do that), dies, or leaves the USA permanently.

It could mean financial disaster for the US citizen.

My, what a rosy picture you paint.

This is quite true and I brought this up with Yodrak before. The USC can ostensibly be very screwed in this arrangement. There is much talk of the woman uprooting all and moving to a foreign, strange land (USA) but it seems to me the USC is at much greater risk because of the I-864. The immigrant fiance(e) has no burden or contractual agreement to meet whatsoever. She (or he) can renege, back-out, or simply leave at any time, before or after the marriage, and there's no consequence she or he would suffer.

Mermaid, is the USC still held liable, even after the alien re-marries?

[diadromous mermaid 36]

So, for all intents and purposes, the US citizen could conceivably be looking at paying out the 125% poverty guideline level until the alien, naturalises (and there's no specific pecuniary incentive for an alien to do that), dies, or leaves the USA permanently.

It could mean financial disaster for the US citizen.

My, what a rosy picture you paint.

This is quite true and I brought this up with Yodrak before. The USC can ostensibly be very screwed in this arrangement. There is much talk of the woman uprooting all and moving to a foreign, strange land (USA) but it seems to me the USC is at much greater risk because of the I-864. The immigrant fiance(e) has no burden or contractual agreement to meet whatsoever. She (or he) can renege, back-out, or simply leave at any time, before or after the marriage, and there's no consequence she or he would suffer.

Mermaid, is the USC still held liable, even after the alien re-marries?

The USC, under the Affidavit of Support, agrees to "provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable and as such is held liable to government agencies and to maintaining the ex-spouse until the alien either dies, naturalizes, or satisfies the 40-qualifying quarter requirement.

Now in terms of the separate maintenance through the civil action, since the contract with the government establishes the liability of the sponsor and the contract is not fulfilled until the alien naturalises, dies or leaves, I'm not sure if remarriage would expunge that liability. Once could argue that as a remarried individual the alien is being supported by the new spouse, but I can see a very astute alien remarrying, and taking steps to purposefully finagle finances so that the support payment may still be valid.

[SirLancelot 1]

Once could argue that as a remarried individual the alien is being supported by the new spouse, but I can see a very astute alien remarrying, and taking steps to purposefully finagle finances so that the support payment may still be valid.

Yep, that's what I was trying to get it. The I-864 is an extremely dangerous piece of contract for the USC--especially for one who hasn't thought through all the ramifications of signing it.

[aussiewench 9]

Once could argue that as a remarried individual the alien is being supported by the new spouse, but I can see a very astute alien remarrying, and taking steps to purposefully finagle finances so that the support payment may still be valid.

Yep, that's what I was trying to get it. The I-864 is an extremely dangerous piece of contract for the USC--especially for one who hasn't thought through all the ramifications of signing it.

A 2006 case in the federal local court of Florida re I-864

http://www.ilw.com/articles/2006,0608-mehta.shtm

[SirLancelot 1]

A 2006 case in the federal local court of Florida re I-864

http://www.ilw.com/articles/2006,0608-mehta.shtm

Awesome article aussiewench. Thanks very much for sharing! You're just a treasure trove of pertinent URL links!

After reading that article, I still believe it would be legal and binding for the petitioner and beneficiary to engage in a private contract themselves which stipulate that the beneficiary would be liable for any and all expenses should there be a divorce before the beneficiary qualifies for any of the 5 requirements needed for the AoS to legally expire.

If both parties engage in this private contact willingly, I would believe the petitioner could seek redress through the civil court system if the beneficiary should divorce and seek compensation using the AoS claim, such as that Russian woman did in the above article.

[aussiewench 9]

A 2006 case in the federal local court of Florida re I-864

http://www.ilw.com/articles/2006,0608-mehta.shtm

Awesome article aussiewench. Thanks very much for sharing! You're just a treasure trove of pertinent URL links!

After reading that article, I still believe it would be legal and binding for the petitioner and beneficiary to engage in a private contract themselves which stipulate that the beneficiary would be liable for any and all expenses should there be a divorce before the beneficiary qualifies for any of the 5 requirements needed for the AoS to legally expire.

If both parties engage in this private contact willingly, I would believe the petitioner could seek redress through the civil court system if the beneficiary should divorce and seek compensation using the AoS claim, such as that Russian woman did in the above article.

Another more in depth article where the author states at the end...

Finally, consider drafting a separate agreement where the sponsored alien renounces any claim against the sponsor for maintenance under the affidavit of support and agrees to indemnify the sponsor should the alien access any means-tested public benefits. This would resemble a pre-nuptial agreement, and would need to identify the consideration that both parties are receiving. Such separate agreements have not been enforced or challenged yet, and the main question is whether they will be found to violate public policy.

http://www.ilw.com/articles/2006,0110-wheeler.shtm#_17

[SirLancelot 1]

Another more in depth article where the author states at the end...

Finally, consider drafting a separate agreement where the sponsored alien renounces any claim against the sponsor for maintenance under the affidavit of support and agrees to indemnify the sponsor should the alien access any means-tested public benefits. This would resemble a pre-nuptial agreement, and would need to identify the consideration that both parties are receiving. Such separate agreements have not been enforced or challenged yet, and the main question is whether they will be found to violate public policy.

http://www.ilw.com/articles/2006,0110-wheeler.shtm#_17

OMG! I'm NOT worthy! I bow with humility at your great presence wise lady!

This article is an absolute gem! EVERYONE should read it, then read it again, then read it thrice.

I am indebted to D-Mermaid for bringing up some great discussion and to Aussiewench for showing me the light with some great analysis by practicing lawyers. This is invaluable information here. Absolutely invaluable!

I have more to discuss.

This is purely a hypothetical, but let's change the setup a bit and assume we're talking about a poor chap with an alien fiancee. Let us assume that he is barely over the federal poverty guideline at the time of the I-134 and at the time of I-864. After a year of marriage, the wife files for divorce. He loses his job and is even poorer--even homeless. Does the I-864 allow the alien spouse to go after the sponsor even if the he is below the federal poverty level himself? What if he declares bankruptcy? Does the I-864 allow the alien spouse to go after the sponsor and attach a lien to his future wages? It just seems to me that the I-864 is draconian in its unlimited reaches.

What if the alien spouse commits a felony after divorce and is imprisoned? Even in prison, is the alien spouse accorded the benefit of the sponsor's financial support?

I know we'd all be conjecturing, but I'm curious what you all think. This is so interesting to me--and absolutely so horrifying at the same time.

[rebeccajo 14]

Wow.

So say something like this happens. The court says you have to pay your alien ex spouse the amount required under the I-864. And you do that. And they still use means tested benefits.

Who then is liable for reimbursement of the benefit - which is the original purpose of the affidavit in the first place (I thought).

[diadromous mermaid 36]

Another more in depth article where the author states at the end...

Finally, consider drafting a separate agreement where the sponsored alien renounces any claim against the sponsor for maintenance under the affidavit of support and agrees to indemnify the sponsor should the alien access any means-tested public benefits. This would resemble a pre-nuptial agreement, and would need to identify the consideration that both parties are receiving. Such separate agreements have not been enforced or challenged yet, and the main question is whether they will be found to violate public policy.

http://www.ilw.com/articles/2006,0110-wheeler.shtm#_17

OMG! I'm NOT worthy! I bow with humility at your great presence wise lady!

This article is an absolute gem! EVERYONE should read it, then read it again, then read it thrice.

I am indebted to D-Mermaid for bringing up some great discussion and to Aussiewench for showing me the light with some great analysis by practicing lawyers. This is invaluable information here. Absolutely invaluable!

I have more to discuss.

This is purely a hypothetical, but let's change the setup a bit and assume we're talking about a poor chap with an alien fiancee. Let us assume that he is barely over the federal poverty guideline at the time of the I-134 and at the time of I-864. After a year of marriage, the wife files for divorce. He loses his job and is even poorer--even homeless. Does the I-864 allow the alien spouse to go after the sponsor even if the he is below the federal poverty level himself?

Were the sponsor below poverty level, there's nothing that could prohibit the alien ex-spouse from taking separate civil action against him, although I am sure the alien would be apprised by counsel that he might be 'uncollectible". She would no doubt get the judgment she wished, but to collect on that judgment would probably require a series of follow up actions.

What if he declares bankruptcy?

My limited understanding of bankruptcy proceedings is that some debt/liabilities are not dischargeable, and there is a hierarchy in terms of which ones are to be paid first etc. A judgment would be placed in line just as a creditor. I suspect he'd be required to arrange payment terms.

Does the I-864 allow the alien spouse to go after the sponsor and attach a lien to his future wages?

I'd also imagine that garnishment of future wages would be the natural course, in such a case. Once again, this might involve quite a bit of footwork on the part of the alien, since I believe garnishments have a specific validity period, and may, for example have to be refiled in 90 days.

What if the alien spouse commits a felony after divorce and is imprisoned? Even in prison, is the alien spouse accorded the benefit of the sponsor's financial support?

I'm not at all familiar with what, if anything, an inmate can do to earn money while in prison. However, the judgment would stand, I'd guess. The matter would then be on finding a way to collect on it.

Wow.

So say something like this happens. The court says you have to pay your alien ex spouse the amount required under the I-864. And you do that. And they still use means tested benefits.

Who then is liable for reimbursement of the benefit - which is the original purpose of the affidavit in the first place (I thought).

If the alien initiated separate civil action against the sponsor, for the 'spousal maintenance' up to 125% of the PG level, then I suspect the alien would not qualify for Federal means benefits...the income level would place them above threshold, however, theoretically, on say a borderline case, the sponsor

s obligation to the government under the Affidavit of Support still stands in terms of liability to other agencies, should they wish to initiate suit in order to recover from the sponsor.

Edited October 25, 2006 by diadromous mermaid

[zauberblume 0]

It would probably be useful to at least discuss the pre-nup and how it may or may not relate to the Aff of Support? Because this is an immigration forum and both documents could potentially "run into" each other.

--Z

The Affidavit of Support is a contract between the sponsor and the government, not between the sponsor and his/her spouse. How would a prenup "run into" it?

Start with these links:

http://www.povertylaw.org/poverty-law-libr...ase/54000/54046

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

http://www.ilw.com/articles/2006,0608-mehta.shtm

It's not like I posted these links on page 11.

Must be invisible.

[DeadPoolX 9]

I realize I said I wouldn't make another post beyond my first (and only) one, but I just have to comment on all of this...

It's truly horrifying. I never realized to what extent the I-864 squeezed the sponsor. It really puts the USC in a bad position. Everything is up to the alien spouse. Whether or not he or she wishes to remain in the marriage or divorce--the alien spouse can effectively "screw over" the USC, and still be supported for a long, long time.

So can a couple (a USC and an alien spouse) compose a legally binding agreement that states, in the event of divorce, the USC is no longer required to support the alien ex-spouse? If there isn't, then that could pose a real problem for many USC's somewhere down the line...

Edited October 25, 2006 by DeadPoolX

[PurrSuede 0]

I realize I said I wouldn't make another post beyond my first (and only) one, but I just have to comment on all of this...

It's truly horrifying. I never realized to what extent the I-864 squeezed the sponsor. It really puts the USC in a bad position. Everything is up to the alien spouse. Whether or not he or she wishes to remain in the marriage or divorce--the alien spouse can effectively "screw over" the USC, and still be supported for a long, long time.

So can a couple (a USC and an alien spouse) compose a legally binding agreement that states, in the event of divorce, the USC is no longer required to support the alien ex-spouse? If there isn't, then that could pose a real problem for many USC's somewhere down the line...

I think something is important to note in the Wheeler article as mentioned

At the very bottom, he says:

At the same time, 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, largely due to the following: (1) sponsored aliens are barred from receiving these benefits for a five-year period in most jurisdictions; (2) after this five-year period, the income of the sponsor is deemed to the alien in determining financial eligibility; and (3) most states have not implemented a system for seeking such reimbursement in cases where the alien does access benefits. 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.

This issue came up during my recent divorce. I spoke with an immigration attorney and he had been unaware of ANY "means-tested" benefit cases where the gov't agency sued for recovery under the I-864.

Now note that in the course of NINE years, only a handful of actions have been brought... and all by disgruntled spouses. In other words, those who received NO support at the time of divorce.

So this came to play in my recent divorce as well, and I addressed this with my divorce attorney.

The issue here is SUPPORT, and she added a clause to the divorce decree, that my ex- was awarded X-amount of $$ in "one-time, lump-sum NON-MODIFIABLE support", and my ex-wife signed off on that.

My divorce attorney told me that would prevent her from in the future trying to come after me for additional support FOR ANY REASON.

Of course, legally, my ex- COULD hire an attorney and challenge that, using the I-864, it's not iron-clad, but it's certainly a reasonable basis to argue from that she would NOT be entitled to any additional support from me.

Signing off on a divorce decree that states she is NOT entitled to any additional support from me, would tend to be a foundation for the legal argument against any additional support entitlement.

My divorce attorney felt that that was the best-case basis for arguing against this should she try to pursue this any further. She indicated NOTHING is iron-clad, only case precedents, but she had never seen any additional support awarded to an ex-spouse where the court decree had indicated "NON-MODIFIABLE support is awarded...".

So there ~are~ ways to protect yourself at the ending of the marriage, should it come to that.

As I said, this is not bullet-proof, but I suspect it's as close to a "guarantee" as one can get to making sure she won't try to initiate a lawsuit against me for additional support using the I-864.

-- Dan

So, yes, in that case, one could ostensibly draw up a separate agreement, perhaps a prenup or even a post-nutpial agreement between the alien and US citizen spouse, since the submission of the I-864 occurs at the adjustment of status stage which follows marriage. I'd imagine that any supplementary agreement would need to address the consideration that both the sponsored alien and the US citizen spouse are to receive, and should stipulate that the alien would renounce all claim and indemnify the sponsor from any maintenance (spousal support) that would be liable due to the alien, from the sponsor. under the terms of the Affidavit of Support.

<snip>

Bear in mind that in either of the legal proceedings, the US citizen spouse can do nothing to prevent this. Not the divorce, nor the liability per the I-864. The second lawsuit moves to determing the 'damages' to be awarded to the alien ex-spouse. Being unmotivated, the alien makes no effort to gain employment, and is not compelled to either (the Federal court cases that have established the precedent for these 'contractual spousal maintenance' obligations held that an alien has not requirement to mitigate the damages). So, for all intents and purposes, the US citizen could conceivably be looking at paying out the 125% poverty guideline level until the alien, naturalises (and there's no specific pecuniary incentive for an alien to do that), dies, or leaves the USA permanently.

As I mentioned in the posting to Deadpool, my attorney felt that her signing off on an agreement to provide "NON-MODIFIABLE support" in the divorce decree is exactly that.

That she has renounced all claims to support from me and indemnifies me from any future claims of needing maintenance (spousal support) regardless of whatever reason she might come up for needing support.

So I would tend to disagree that one can do nothing to prevent this. It certainly lays the foundation for challenging ANY claim she might bring against me for future issues of support.

Again, as I said, this is not bullet-proof iron-clad, but it certainly could be the basis of a defense against her using the I-864 to try to squeeze more money out of me.

-- Dan

Edited October 25, 2006 by PurrSuede

[aussiewench 9]

It would probably be useful to at least discuss the pre-nup and how it may or may not relate to the Aff of Support? Because this is an immigration forum and both documents could potentially "run into" each other.

--Z

The Affidavit of Support is a contract between the sponsor and the government, not between the sponsor and his/her spouse. How would a prenup "run into" it?

Start with these links:

http://www.povertylaw.org/poverty-law-libr...ase/54000/54046

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

http://www.ilw.com/articles/2006,0608-mehta.shtm

It's not like I posted these links on page 11.

Must be invisible.

You are not invisible Looks like we all missed it though. Perhaps because it wasn't until later in the thread that the I-864 was discussed in more detail regarding this so therefore your post was overlooked. I myself hadn't kept up with every post and I would of referred to your post had I done. My apologies.