Can she stay in US even if her husband wants her to go home

[KCMO 84]

First of all there are so many layers to this. We are all trying our best to assess assume the people involved and their intentions. If her husband truly does not care about her and is black mailing her by booking and cancelling tickets then she should call it good riddance and get a divorce , i know she has to face her family but i am sure in the long term this is healthy and if they understand or not now , they will understand later. This is a very difficult time for OP's friend. I feel for her.

 

One option is go back home and face the challenges there. and the other option is to find a legal way to stay here and get a job and start a new life if she can handle doing that away from family and friends.

But if she just needs sometime to reorient herself then until her legal state expires she can stay with her friend and then move back to her home country where she has support of family even though they may not understand her divorce , i am sure they will understand that one should have to get out of an abusive marriage .

So , she may have to face challenges when she goes back , but atleast she wont be in toxic relationship and she will be free. All this idea of alimony will only make situation very complicated in my opinion.

 

Now we need to understand that we dont know much about her husband's point of view. What if he thinks he made a mistake and is deciding to end it before he is dragged into a legal obligation to support ? Obviously he hasnt uprooted his life and moved to another country trusting his spouse so he may not be feeling what she is feeling and yet he has a right to decide for himself. Its hard but people can change their mind and they have a right. Its  a hard lesson for both . Especially emotionally more so for OP's friend. Our thoughts are with her. All will be fine one way or the other.

 

From what i am reading , since her applicaiton is not yet approved and is in the beginning stages , one has to make sure if her husband can pull his support or not , will uscis consider him withdrawing his support at this stage or not. that is the first step. If he can , then she has no other choice but to go home , but i am not an attorney so i may not know all the options here.

Edited January 11, 2018 by KCMO

[Boiler 45,362]

15 minutes ago, LKMK said:

True, but you never know.  Divorces can be drawn out over long periods of time as well as being quite costly.  Some people may opt for the easy way out and just "settle" for an alimony payment vs a costly divorce.

That calculator would not allow you to put in less than one year marriage and even assuming that came up with about $500.

 

A year.

 

What leads you to believe she can fund a long drawn out messy divorce?

[LKMK 85]

13 minutes ago, Boiler said:

That calculator would not allow you to put in less than one year marriage and even assuming that came up with about $500.

 

A year.

 

What leads you to believe she can fund a long drawn out messy divorce?

Disclaimer:  I am not a lawyer, nor do I represent a law firm.  The accuracy, completeness, adequacy or currency of the content is not warranted or guaranteed. The below information is not a substitute for the advice or services of an attorney.  I recommend you consult a lawyer or other appropriate professional if you want legal, business or tax advice.

 

It's an interesting read and something to think about.

 

Federal Court case, Stump vs. Stump, 2005 U.S. Dist. LEXIS 26002 (October 25, 2005)

 

Summary:
In order for a foreigner to immigrate through a family-based petition (such as a CR or an IR visa,
or stateside adjustment of status “green card”), the U.S. citizen petitioner must execute and
submit a legally-enforceable affidavit of support on Form I-864. (An exception mentioned in
Wheeler can be when adjusting status based on entry on a K1 fiancée visa.) The sponsor must
agree in this affidavit 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.” The affidavit of support must be “legally enforceable against the
sponsor by the sponsored alien.” Jurisdiction to enforce the affidavit of support lies in “any
appropriate court” in actions brought by the sponsored alien against the sponsor “with respect to
financial support.” The possible remedies include payment of spousal support or other
maintenance.

In a court decision, Stump vs. Stump, the federal court found the financial sponsor liable under
form I-864 contract, concluding that the sponsor was obligated to maintain the foreign spouse at
125 percent of the poverty income level. It then awarded the alien spouse almost $19,000.
This was the amount of money she was entitled to receive from the sponsor, calculated form the
date the couple separated until the date of the decision, based on her right to receive
maintenance at the 125 percent of poverty level. The court took in to account the amount of
money the alien spouse had already received during that period from the citizen spouse and
from wages she had earned. The court also indicated it would award plaintiff’s counsel
reasonable attorney’s fee in bringing the action and reminded the sponsor of his continuing
obligation to maintain the alien spouse at the 125 percent level until the contract is terminated.
Issues dealing with spousal support do not only belong exclusively in state court as part of the
dissolution proceedings. A law suit may be filed in Federal court, for example, as was the case
in Stump vs. Stump. Enforceability of the form I-864 affidavit of support is not merely only
enforceable against the sponsor by agencies that had provided the alien with means-tested
benefits. Instead, it can generally be enforceable to collect maintenance from the U.S. citizen
sponsor and perhaps from a cosponsor as well.

 

The affidavit remains in effect until the foreigner either becomes a U.S. citizen or earns/is
credited with 40 qualifying quarters of employment, as defined under social security law. The
regulations also allow for termination of the affidavit in the event that either the U.S. citizen
sponsor or the foreigner dies or the foreigner abandons lawful permanent resident (LPR) status
and leaves the United States.

The I-864 affidavit does not terminate upon the dissolution of the marriage between the sponsor
and the sponsored alien. In fact, divorce eliminates the ability of the parties to combine social
security quarters earned during marriage and terminate the contact in that manner. In those
situations the sponsor remains liable for maintaining the ex-spouse until the alien either 1) dies;
2) naturalizes; or 3) works ten years and satisfies the 40-qualifying quarter requirement. It can
be argued, therefore, that Congress has created a disincentive for foreign spouses to naturalize
or work after divorcing the citizen/LPR spouse, since doing so would eliminate or restrict their
ability to receive guaranteed maintenance from the sponsor at a lever not less than 125 percent
of the Federal poverty income guidelines.

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

In its order granting summary judgment, the court found that the sponsored alien could maintain
an action against the sponsor for financial support, and that those actions are independent of
ones that might be brought by a government agency seeking reimbursement for benefits
received by the alien. It also held that the plaintiff was not precluded from enforcing the affidavit
even if she had not worked or sought work; mitigation went to the issue of damages, not liability,
which would be addressed in a subsequent trial.

According to the court in Stump vs. Stump, once executed and submitted, the I-864 could not be
withdrawn, and it is enforceable even if the intending alien never obtains LPR status as a “green
card” holder.

The most interesting part of the final decision in Stump vs. Stump was the court’s method of
calculating the amount of damages. At the trial, the plaintiff presented evidence of her income
from the period after separating from the sponsor up to the present time, as well as all her
efforts to seek employment. The court subtracted the amount of money she had earned during
that period, as well as the maintenance she had received from the sponsor, from his obligation
to support her at “an annual income that is not less than 125 percent of the Federal poverty
line.” While the court did not find that the plaintiff was required to mitigate her damages, it found
that she had done so anyway.

 

The court did not want to place the plaintiff in a better position than she would have been had
the breach not occurred, so it rejected the second argument. It also decided that since the
purpose of the affidavit of support was to ensure that the sponsored alien did not become
financially eligible for means-tested programs, he had an obligation to provide support
equivalent to 125 percent of the poverty line for a family of one, which is what she became when
the parties separated. For 2005, that amount was $11,963.

This finding still leaves open the question of what formula to apply where the sponsor executed
multiple affidavits of support for the spouse and other family members.
The Charles Wheeler article recited possible defenses available that were not asserted in
Stump vs. Stump. We recommend that you discuss any obligations and defenses relative to
form I-864 with a family law attorney who handles prenuptial agreements, or another attorney of
your choice.

 

 

 

Edited January 11, 2018 by LKMK

[geowrian 22,337]

The I-864 is not into effect / executed until AOS is approved.

Edited January 11, 2018 by geowrian

[Boiler 45,362]

1 minute ago, geowrian said:

The I-864 is not into effect / executed until AOS is approved.

That rather screws that and no mention she is not able to work.

[KCMO 84]

3 minutes ago, Boiler said:

That rather screws that and no mention she is not able to work.

If she cannot legally work then she has no choice but to go back.

[geowrian 22,337]

1 minute ago, KCMO said:

If she cannot legally work then she has no choice but to go back.

If AOS was approved (i.e. and therefore the I-864 is executed), she would be authorized to work.

Edited January 11, 2018 by geowrian

[LKMK 85]

6 minutes ago, geowrian said:

The I-864 is not into effect / executed until AOS is approved.

Are you sure about that?  From what I am reading directly off the I-864, "By signing Form I-864, you are agreeing to use your resources to support the intending immigrant(s) named in this affidavit, if it becomes necessary."  To me it means that when you signed the document your are now legally bound to the document until:

 

Your obligations under a Form I-864 that you signed will end if the person who becomes a lawful permanent resident based on that affidavit:
Is subject to removal, but applies for and obtains, in removal proceedings, a new grant of adjustment of status, based on a new affidavit of support, if one is required; or
A.  Becomes a U.S. citizen;
B.  Has worked, or can receive credit for, 40 quarters of coverage under the Social Security Act;
C.  No longer has lawful permanent resident status and has departed the United States;
D.  Is subject to removal, but applies for and obtains, in removal proceedings, a new grant of adjustment of status, based on a new affidavit of support, if one is required; or
E.  Dies.

[geowrian 22,337]

5 minutes ago, LKMK said:

Are you sure about that?  From what I am reading directly off the I-864, "By signing Form I-864, you are agreeing to use your resources to support the intending immigrant(s) named in this affidavit, if it becomes necessary."  To me it means that when you signed the document your are now legally bound to the document until:

Yes, I am certain of that. Signing the document means you agree to it, but that is not when it goes into effect / "executed". The sponsor can withdraw the I-864 for any reason prior to being executed (anytime before AOS is approved).

 

Edit:

For reference, the I-864:

"If an intending immigrant becomes a lawful permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under Form I-864 terminate, the U.S. Government may consider (deem) your income and assets as available to that person, in determining whether he or she is eligible for certain Federal means-tested public benefits and also for state or local means-tested public benefits, if the state or local government's rules provide for consideration (deeming) of your income and assets as available to the person"

and

"If you do not provide sufficient support to the person who becomes a lawful permanent resident based on a Form I-864 that you signed, that person may sue you for this support."

 

The part in bold occurs when AOS is approved.

Edited January 11, 2018 by geowrian

[LKMK 85]

22 minutes ago, geowrian said:

Yes, I am certain of that. Signing the document means you agree to it, but that is not when it goes into effect / "executed". The sponsor can withdraw the I-864 for any reason prior to being executed (anytime before AOS is approved).

Thank you for the correction. 

 

The reference is
§ 213a.2 Use of affidavit of support. :

 

(f)(2) In an adjustment of status case, once the sponsor, substitute sponsor, joint sponsor, household member, or intending immigrant has presented a signed Form I-864 or Form I-864A to an immigration officer or immigration judge, the sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement to act as sponsor, substitute sponsor, joint sponsor, or household member only if he or she does so in writing and submits the document to the immigration officer or immigration judge before the decision on the adjustment application.

Edited January 11, 2018 by LKMK

[LKMK 85]

I think we all can agree that the OP is in a difficult place and we all feel bad for her.

 

Now its up to the couple to either work things out or go their separate ways.  They are both in a difficult situation.  Maybe the best thing for them is just sitting down and talking or seeking professional counseling.  That way they might be able to get to the root cause.

 

I feel bad for the OP as she has no support, but at least amaada is there for her.  So thank you amaada for supporting your friend during this difficult time.

[amaada 18]

Guys, I read all your inputs and I really appreciate all the time and effort you have given for me and my friend.

 

I read everything and will definitely pass it on to my friend and she will be the one to decide which step she’ll take from the inputs you all gave. At least she’ll know her rights and her options.

 

In case she flies to my place, I think I’ll drive her to USCIS so they can also tell her what’s the best thing to do given her situation.

 

I don’t know how she can get to an immigration lawyer since she doesn’t have any means to pay for the service.

[Boiler 45,362]

USCIS are not there to provide guidance.

[amaada 18]

6 minutes ago, Boiler said:

USCIS are not there to provide guidance.

Ohh. Thanks for letting me know. Shooot.

[LKMK 85]

14 minutes ago, amaada said:

Ohh. Thanks for letting me know. Shooot.

Sometimes immigration lawyers and other attorney's will give you a free consult.  Its worth a try, if needed.