If Divorced, I-864 Can or Can't be withdrawn

[Wild Wind 0]

As you work and pay taxes, you earn credits that count toward your eligibility for future Social Security benefits. You can earn a maximum of four credits each year. Most people need 40 credits to qualify for benefits. You can earn up to 4 credits per year based on your annual earnings. The amount of earnings required for a credit increases each year as general wage levels rise. Currently for 2006 you need to earn $970 for one credit so $3880 earns you 4 credits for the year.

Wild Wind,

This is, for the most part, correct with one little correction.

Currently for 2006 you need to earn $970 for one credit so $3880 earns you 4 credits for the year.

You do not acquire one credit for every $970.00 you EARN. You acquire one quarter's credit for every $970.00 credited (noted by the wages on your paycheck reported by your employer by way of a 941 return to the Social Security Administration). The reason I note this specifically is that some people may earn enough but do not report that income. A person that works in an industry that is tip-related comes to mind, for example.

And, while married you do get the benefit of your US spouse's work quarter's credits as well. The complication arises if the parties divorce prior to a determination being made to see whether the alien has satisfied the Affidavit of Support 40-quarters. Any quarters acquired by way of the US citizen spouse, upon divorce, are no longer valid. In essence this means that for the average couple, both working consistently and earning enough to have a $970.00 deposit applied to his or her SSA account, the Affidavit of Support could be satisfied in as little as 5 years. Of course if divorce occurs that can be stretched immediately to 10 years and possibly more, if the alien does not have a solid work history or substantial enough earnings rate.

If your spouse works a typical job where the employer reports her/his earnings they will earns credits based on your W-2? she/he will not lose them. They are reported based on their social security number. I am a little confused that they can earn the needed credits in 5 years. I was under the impression the most credits you could earn in a year was 4. Each individual has their own SS# account I believe that they will keep as long as they are a wage earner, unemployed, divorced or married. Please correct if I am mislead.

Earning Credits

Eligibility for Social Security benefits is accrued over time. Prior to 1978, workers were required to earn $50 in a three-month quarter in order to receive one Social credit. The achievement of 40 credits, accrued over 10 years of working, provided eligibility. Today, employers report earnings once per year instead of quarterly. Credits are accrued based on your earnings, not on a quarterly basis, so it is possible to earn all four credits for the year even if you only work a short amount of time each year. In 2006, workers will be required to earn $970 per credit.

[PurrSuede 0]

I don't see the obligation as being Sponsor to Alien. It's Sponsor to Fellow American Taxpayers.

We don't want to foot the bill because your alien went on welfare.

(don't see how a prenup would kill it)

Meauxna, that's quite true. The principle obligation of the Affidavit of Support is one between the sponsor and the USCIS, but I believe that sweety pie may be referring to the exposure that a sponsor undertakes to the alien to support to the 125% poverty level. This brings about an interesting issue, in my eyes, because unless flagrant fraud is at hand wherein the alien should not be entitled to the benefits outlined by the sponsor in the Affidavit, to make any attempt to obviate any obligation to the alien, implied or otherwise, would be counter-productive in my mind. If the alien is indeed struggling on less than the national poverty income level, he or she might possibly try to draw benefits, and then the sponsor is on the hook to the government.

But wait a minute, let's have a ~reality check~ here, shall we??

There are NO known cases of the I-864 ever been used by any government agency to recover costs incurred on behalf of the alien immigrant against the sponsor.

That information comes first, directly from my immigration attorney who had 20 years as a staff attorney with the USCIS before going into private practice.

And second, from the well-discussed Wheeler article:

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

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.

The plain fact is, it's been used by disgruntled spouses (and we've discussed this) but it has not been used (to the knowlege of several immigration attorneys) by any government agency itself.

-- Dan

I was wondering if a prenuptial agreement can take away this obligation of the sponsor to the alien.Does anyone know?

and sweety_pie, from that same article by Wheeler:

...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.

I don't see the obligation as being Sponsor to Alien. It's Sponsor to Fellow American Taxpayers.

We don't want to foot the bill because your alien went on welfare.

(don't see how a prenup would kill it)

And Meauxna...???

I do like your new photo.... <prrrrrrrr prrrrrrrrr prrrrrrrrrr>

But hey, ...there have been absolutely NO cases (that any immigration attorney I've found is aware of) where a gov't agency has used the I-864 to recover expenses FROM the Sponsor that were paid out on behalf of an alien immigrant spouse...

Let me make that clear. NONE... it hasn't happened to date.

So as I point out, it's all well-and-good if this is the intention, but the reality is this just does NOT happen.

And even still... as the Wheeler comment suggests "going on welfare" (a means-tested benefit) would be next to impossible for five years anyway...

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.

-- Dan

Edited November 29, 2006 by PurrSuede

[meauxna 15]

And even still... as the Wheeler comment suggests "going on welfare" (a means-tested benefit) would be next to impossible for five years anyway...

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.

-- Dan

Dan, Dan, Dan....

don't let the truth get in the way of a good story!

Wanda sez: Hi Dan!

PS: agree with your last post totally. My comment was clarifying the intent of the doc WRT the comments I was posting on. IE: many people feel that this is their private business, their relationship etc. The issue is not 'you can't marry whomever you like' but 'you can't just import anyone you like without checking with the rest of us first'.

[PurrSuede 0]

And even still... as the Wheeler comment suggests "going on welfare" (a means-tested benefit) would be next to impossible for five years anyway...

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.

-- Dan

Dan, Dan, Dan....

don't let the truth get in the way of a good story!

Wanda sez: Hi Dan!

PS: agree with your last post totally. My comment was clarifying the intent of the doc WRT the comments I was posting on. IE: many people feel that this is their private business, their relationship etc. The issue is not 'you can't marry whomever you like' but 'you can't just import anyone you like without checking with the rest of us first'.

I like Wanda... and Coby (my cat...) ~might~ like Wanda, cuz they look a lot alike but then again, she might NOT like Wanda, because she -owns- me and -owns- my house and another cat, well, she might not be too darn sure about... but she says Hi anyway...

I agree with your comments though about it all being in the "public domain"... but having gone through the recent divorce, both my immigration attorney and my family-law attorney and I discussed the ramifications of the I-864 in great detail... so I'm aware of everyone saying how dire and deadly this is... but the reality of it, it is very very very unlikely to ever be actually used.

That being said, Wheeler has said for himself that:

This author has assisted several family law practitioners in their efforts to use the affidavit of support as a yardstick in establishing the appropriate level of spousal support for their clients in divorce proceedings. The argument is fairly straightforward: the federal government has set a floor of 125 percent of the poverty guidelines, which the sponsor is already obligated to provide to the alien spouse, and thus the sponsor should be required to provide at least that amount in regular spousal support payments. In states where the spousal maintenance/alimony laws or precedent holdings would not support such a finding, the author has encouraged sponsored aliens to file separate actions in state or federal court.

I did provide my ex-spouse with some level of support. That being said, my attorney said it was likely that under NM state law, I would likely have needed to do this anyway, as my income was much greater than hers. Regardless of if the marriage was "fraudulent" or not, in the view of the USCIS, it was still a legal marriage in the view of the state of New Mexico.

We also discussed ways to provide the amount of support she got so it was the most advantageous to me. (For those of you who don't understand this, alimony aka support paid to an ex-spouse IS a tax deduction under federal IRS guidelines, if done properly.)

And we also structured the wording of the settlement so she can NOT come back and seek additional support from me. So we felt this made the issue of the I-864 completely moot.

-- Dan

[diadromous mermaid 36]

And even still... as the Wheeler comment suggests "going on welfare" (a means-tested benefit) would be next to impossible for five years anyway...

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.

-- Dan

Dan, Dan, Dan....

don't let the truth get in the way of a good story!

Wanda sez: Hi Dan!

PS: agree with your last post totally. My comment was clarifying the intent of the doc WRT the comments I was posting on. IE: many people feel that this is their private business, their relationship etc. The issue is not 'you can't marry whomever you like' but 'you can't just import anyone you like without checking with the rest of us first'.

I like Wanda... and Coby (my cat...) ~might~ like Wanda, cuz they look a lot alike but then again, she might NOT like Wanda, because she -owns- me and -owns- my house and another cat, well, she might not be too darn sure about... but she says Hi anyway...

I agree with your comments though about it all being in the "public domain"... but having gone through the recent divorce, both my immigration attorney and my family-law attorney and I discussed the ramifications of the I-864 in great detail... so I'm aware of everyone saying how dire and deadly this is... but the reality of it, it is very very very unlikely to ever be actually used.

That being said, Wheeler has said for himself that:

This author has assisted several family law practitioners in their efforts to use the affidavit of support as a yardstick in establishing the appropriate level of spousal support for their clients in divorce proceedings. The argument is fairly straightforward: the federal government has set a floor of 125 percent of the poverty guidelines, which the sponsor is already obligated to provide to the alien spouse, and thus the sponsor should be required to provide at least that amount in regular spousal support payments. In states where the spousal maintenance/alimony laws or precedent holdings would not support such a finding, the author has encouraged sponsored aliens to file separate actions in state or federal court.

I did provide my ex-spouse with some level of support. That being said, my attorney said it was likely that under NM state law, I would likely have needed to do this anyway, as my income was much greater than hers. Regardless of if the marriage was "fraudulent" or not, in the view of the USCIS, it was still a legal marriage in the view of the state of New Mexico.

We also discussed ways to provide the amount of support she got so it was the most advantageous to me. (For those of you who don't understand this, alimony aka support paid to an ex-spouse IS a tax deduction under federal IRS guidelines, if done properly.)

And we also structured the wording of the settlement so she can NOT come back and seek additional support from me. So we felt this made the issue of the I-864 completely moot.

-- Dan

Dan,

I'm inclined to agree that collection by the government under the Affidavit of Support is less likely than other hazards inherent in a couples decision to divorce. Although Wheeler states that he is not aware of any attempts made by agencies to recover repayment for benefits from the sponsor, that alone does not necessarily mean that it a. ) has not been done, nor that it b. ) would not be done. The regulations preserve the right of the agency to "request" reimbursement and take further legal action if deemed necessary.

The author is not aware of any successful actions to obtain reimbursement for means-tested benefit programs obtained by the alien,

Actions, as in legal suits, perhaps, but is Wheeler aware of any requests made that the sponsor simply capitulated to and repaid without legal action?

(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

This doesn't necessarily render the Affidavit of Support obligation moot either. Contemplate a situation where an alien divorces the sponsor, and the sponsor falls on hard times as well (not so unusual in the context of divorce and avaricious family law attorneys ). If the sponsor's income is deemed to the alien in determining financial elgibility, and the sponsor has little to none, presto the alien can access benefits. What's more, although an agency might not be duly motivated to institute legal action to recover reimbursement, I note that nothing is said about the agency possibly denying future benefits to a sponsor that has an outstanding debt to the agency, as a result of a prior claim under the affidavit of Suport. I'm not sure if this would occur, but I wonder if it isn't out of the realm of possibility. Anyone know?

With regard to the pre-nup being used to obviate the sponsor's requirement to provide support to an alien, I also note the language that Wheeler uses.

This author has assisted several family law practitioners in their efforts to use the affidavit of support as a yardstick in establishing the appropriate level of spousal support for their clients in divorce proceedings. The argument is fairly straightforward: the federal government has set a floor of 125 percent of the poverty guidelines, which the sponsor is already obligated to provide to the alien spouse, and thus the sponsor should be required to provide at least that amount in regular spousal support payments. In states where the spousal maintenance/alimony laws or precedent holdings would not support such a finding, the author has encouraged sponsored aliens to file separate actions in state or federal court.

While Wheeler is saying that no such cases exist for the agency to sue the sponsor, he is advocating sponsored immigrants lodge suit to use it as a means to secure spousal support in the divorce context, and where statute prohibits this support, in alternate venues.

Such separate agreements have not been enforced or challenged yet, and the main question is whether they will be found to violate public policy.

Specifically, an aggressive attorney could conceivably make a case that the pre-nup type protection does strip the alien of what is due to him or her by right (somewhat akin to the tenets of a strict liability claim)

[PurrSuede 0]

I'm inclined to agree that collection by the government under the Affidavit of Support is less likely than other hazards inherent in a couples decision to divorce. Although Wheeler states that he is not aware of any attempts made by agencies to recover repayment for benefits from the sponsor, that alone does not necessarily mean that it a. ) has not been done, nor that it b. ) would not be done. The regulations preserve the right of the agency to "request" reimbursement and take further legal action if deemed necessary.

Regulations, Schmegulations... as I said, an attorney with 20 years practice as an INS-staff attorney told me that it had NEVER been done.

And I could not find any case law or context on the web where it had -ever- been done, either, my dear Mermaid... can you???

The author is not aware of any successful actions to obtain reimbursement for means-tested benefit programs obtained by the alien,

Actions, as in legal suits, perhaps, but is Wheeler aware of any requests made that the sponsor simply capitulated to and repaid without legal action?

Again, considering all the webcrawlers we have around here... are you or anyone else???

And again, my attorney informed me they would need to "file a suit" in order to get re-imbursement, and he said (to his best knowledge, of course) this had NEVER been done. I'm sure they don't just call someone up and say... "could you please send us $6,000 to cover so-and-so's welfare payments we made?" As the other Wheeler post iterated, many agencies have no actual method to even attempt reimbursement, much less through another agency (the USCIS) that they might not even be aware of or in contact with, should even the alien even try to get benefits...

I think you give too much credit to gov't bureaucracy... the left hand usually doesn't know what the left fingers are doing, much less the right hand, to fracture a cliche...

(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

This doesn't necessarily render the Affidavit of Support obligation moot either. Contemplate a situation where an alien divorces the sponsor, and the sponsor falls on hard times as well (not so unusual in the context of divorce and avaricious family law attorneys ). If the sponsor's income is deemed to the alien in determining financial elgibility, and the sponsor has little to none, presto the alien can access benefits. What's more, although an agency might not be duly motivated to institute legal action to recover reimbursement, I note that nothing is said about the agency possibly denying future benefits to a sponsor that has an outstanding debt to the agency, as a result of a prior claim under the affidavit of Suport. I'm not sure if this would occur, but I wonder if it isn't out of the realm of possibility. Anyone know?

Again, I'm interested in this in the context of REALITY of if it has -ever- occured. And all my research tells me that it hasn't to the knowledge of several immigration attorneys who deal with this situation much more often on a real-basis than we do on a conjecture basis here on VJ.

-- Dan

[diadromous mermaid 36]

I'm inclined to agree that collection by the government under the Affidavit of Support is less likely than other hazards inherent in a couples decision to divorce. Although Wheeler states that he is not aware of any attempts made by agencies to recover repayment for benefits from the sponsor, that alone does not necessarily mean that it a. ) has not been done, nor that it b. ) would not be done. The regulations preserve the right of the agency to "request" reimbursement and take further legal action if deemed necessary.

Regulations, Schmegulations... as I said, an attorney with 20 years practice as an INS-staff attorney told me that it had NEVER been done.

And I could not find any case law or context on the web where it had -ever- been done, either, my dear Mermaid... can you???

The author is not aware of any successful actions to obtain reimbursement for means-tested benefit programs obtained by the alien,

Actions, as in legal suits, perhaps, but is Wheeler aware of any requests made that the sponsor simply capitulated to and repaid without legal action?

Again, considering all the webcrawlers we have around here... are you or anyone else???

And again, my attorney informed me they would need to "file a suit" in order to get re-imbursement, and he said (to his best knowledge, of course) this had NEVER been done. I'm sure they don't just call someone up and say... "could you please send us $6,000 to cover so-and-so's welfare payments we made?" As the other Wheeler post iterated, many agencies have no actual method to even attempt reimbursement, much less through another agency (the USCIS) that they might not even be aware of or in contact with, should even the alien even try to get benefits...

I think you give too much credit to gov't bureaucracy... the left hand usually doesn't know what the left fingers are doing, much less the right hand, to fracture a cliche...

(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

This doesn't necessarily render the Affidavit of Support obligation moot either. Contemplate a situation where an alien divorces the sponsor, and the sponsor falls on hard times as well (not so unusual in the context of divorce and avaricious family law attorneys ). If the sponsor's income is deemed to the alien in determining financial elgibility, and the sponsor has little to none, presto the alien can access benefits. What's more, although an agency might not be duly motivated to institute legal action to recover reimbursement, I note that nothing is said about the agency possibly denying future benefits to a sponsor that has an outstanding debt to the agency, as a result of a prior claim under the affidavit of Suport. I'm not sure if this would occur, but I wonder if it isn't out of the realm of possibility. Anyone know?

Again, I'm interested in this in the context of REALITY of if it has -ever- occured. And all my research tells me that it hasn't to the knowledge of several immigration attorneys who deal with this situation much more often on a real-basis than we do on a conjecture basis here on VJ.

-- Dan

Dan,

I'm not conjecturing, necessarily, I'm suggesting that the opportunity exists for an alien to secure support, and the government entity to seek recompense for benefits drawn by the alien from the sponsor, should it choose to. Just because a handful of people have not heard of it being done, does not mean that it hasn't nor that it can't. The legal foundation for it to occur and culminate in a success currently exists. Now whether there has been any agency savvy or justly motivated to date, is another story. However, that being said, if your principle interest is to assuage all the frayed nerves that sponsors might have when agreeing to endorse the Affidavit of Support, all well and fine. Suffice it to say, that the potential is there, and one can hedge ones bets as to whether or not it will ever happen to him or her.

[zixuandavid 0]

I'm not conjecturing, necessarily, I'm suggesting that the opportunity exists for an alien to secure support, and the government entity to seek recompense for benefits drawn by the alien from the sponsor, should it choose to. Just because a handful of people have not heard of it being done, does not mean that it hasn't nor that it can't. The legal foundation for it to occur and culminate in a success currently exists. Now whether there has been any agency savvy or justly motivated to date, is another story. However, that being said, if your principle interest is to assuage all the frayed nerves that sponsors might have when agreeing to endorse the Affidavit of Support, all well and fine. Suffice it to say, that the potential is there, and one can hedge ones bets as to whether or not it will ever happen to him or her.

There should be no debate over whether your obligation to the I-864 could be used in court to secure support or recompense for benefits... Whether the likelihood of one is more than the other or if 'people have not heard of it being done' just shows how much one is either aware of it's reality or still in the dark.

It's all fine and dandy to read some lawyers opinion and research of cases.. but one must have common sense with about such research, which is always a subset of reality; no research can be aware of every possible case.

I am personally aware of three CURRENT cases of the I-864 being used against the petitioner in divorce preceedings, and I've done no research to find them. If you really want to see more if it, it is probably going to happen from those countries where fraud and scam is more suspected in the first place... Chinese beneficiary's are all the ones that I know of. I am realistic enough to accept that three cases simply means there are more out there.

In one case, there was recompense to the beneficiary for simply being married a year (state, CA).. even though she was not in the US for the time period the award was set for !! Although this is a little off-topic to the I-864, let's not be too naive in understanding how far a lawyer will go for their client and what means he can leverage in the end. Wake up and smell the I-864.

[PurrSuede 0]

I'm not conjecturing, necessarily, I'm suggesting that the opportunity exists for an alien to secure support, and the government entity to seek recompense for benefits drawn by the alien from the sponsor, should it choose to. Just because a handful of people have not heard of it being done, does not mean that it hasn't nor that it can't. The legal foundation for it to occur and culminate in a success currently exists. Now whether there has been any agency savvy or justly motivated to date, is another story. However, that being said, if your principle interest is to assuage all the frayed nerves that sponsors might have when agreeing to endorse the Affidavit of Support, all well and fine. Suffice it to say, that the potential is there, and one can hedge ones bets as to whether or not it will ever happen to him or her.

There should be no debate over whether your obligation to the I-864 could be used in court to secure support or recompense for benefits... Whether the likelihood of one is more than the other or if 'people have not heard of it being done' just shows how much one is either aware of it's reality or still in the dark.

It's all fine and dandy to read some lawyers opinion and research of cases.. but one must have common sense with about such research, which is always a subset of reality; no research can be aware of every possible case.

I am personally aware of three CURRENT cases of the I-864 being used against the petitioner in divorce preceedings, and I've done no research to find them. If you really want to see more if it, it is probably going to happen from those countries where fraud and scam is more suspected in the first place... Chinese beneficiary's are all the ones that I know of. I am realistic enough to accept that three cases simply means there are more out there.

In one case, there was recompense to the beneficiary for simply being married a year (state, CA).. even though she was not in the US for the time period the award was set for !! Although this is a little off-topic to the I-864, let's not be too naive in understanding how far a lawyer will go for their client and what means he can leverage in the end. Wake up and smell the I-864.

But again, being used against the petitioner in a divorce proceeding is EXACTLY what Wheeler is talking about, aka used by disgruntled spouses. And using it as "leverage" within a divorce is a far different cry from using it as the basis for a suit on the merits of the I-864 alone, indeed.

Of course, it all depends which side of the I-864 you fall on. I can see how a digruntled immigrant spouse ~could~ use it as leverage to try and -get- support (especially where none was given), but having gone through this myself on the other side, my lawyers and I did whatever was necessary to best insulate myself from the ramifications of this document.

Let's also not be so naive as to approach any divorce proceeding without legal representation, and for whatever one party can try to leverage, the opposing lawyer can diffuse and de-leverage if you will. This is why the legal profession is adversarial, indeed.

And I've never said it can't be used as leverage within a divorce proceeding. Even Wheeler pointed out that it HAS been used as ammunition by disgruntled spouses. My point was that it certainly can be defused, and that's exactly what we did within my divorce proceedings regarding this document.

And again, my immigration lawyer pointed out to me that NO TIME (to his knowlege) has ANY I-864 been used to seek redress (monetary damages) against a US Citizen by ANY gov't agency within his 20 years of practice as an INS staff attorney.

Look up the word "non-modifiable support" and see what that means, perhaps, while you're sniffing around and smelling things, zixuandavid...

-- Dan, who's been there, done that, and knows what I'm talking about...