I-751 - Waiver of fees and Chances of public charge

[Alexmat1 9]

I had to go through a divorce unfortunately. I was dependent on USC and for 1 years I had support from USC.  I send in my I-751 and they came back with RFE for divorce decree. The case was still dragging in the courts so I couldnt and USCIS denied by green card and said I will get a NOA. It took another 1.5 years more for the divorce to be finalized and got my divorce decree. By then I was down in debts with the huge divorce fees and since my Green card was revoked, I couldnt work anymore. I am going to refile I-751 and wouldnt be able to afford the filing fees. I have the following questions:

- Would applying for a fee waiver be a concern for USCIS as it shows I have lack of money and thus a public charge ? 

- I get Food coupons and I am on Medicaid but I dont receive any other welfare. I am borrowing for rest of living expenses. Does these welfare negatively affect my I-751 and would I be denied considering my as public charge

- I have got legal advise that since I have to wait out till USCIS takes decision, I can sue my sponsor USC for supporting me at federal poverty level (if I get that , I can stop taking the welfare). Would this be considered negative in my case.

 

Thanks. 

[geowrian 22,337]

• Public charge is not considered for ROC.
• If you qualify for the programs, then it's not an issue. Medicaid eligibility within the first 5 years of being an LPR varies by state. No federal funds can be used to support you in that 5 year period, but some states have funding from its residents used to offer benefits for LPRs during this period as well. I'm assuming the same goes for state participation in food stamp/coupon programs. Again, if you are receiving them and meet the program's requirements, then it shouldn't be an issue. If you are not supposed to be receiving them, this may or may not come up during naturalization. Also, your sponsor(s) may or may not get a bill for any funds used in excess of your own qualifications.
• Suit under the I-864 would not be a negative factor. Again, public charge is not an issue for ROC.
  • It is possible to sue any sponsor if needed, although normally this is something worked out during the divorce (i.e. via spousal support/alimony). Enforcement after a divorce is finalized can be more complicated so you would need to seek professional assistance if you want to go that route. An order to seek employment to avoid needing their support may or may not be involved. Income from other sources may be considered to offset the amount that can be awarded. Again, it would be something to discuss with an attorney that has dealt with I-864 enforcement.

Edited July 11, 2019 by geowrian

[Alexmat1 9]

Thanks geowrian.

 

As for the I-864 this is what I know:

Its best worked out in divorce but it can still be brought up after divorce. For eg one could be working and thus earning their own income whiel divorce is finalized. A couple of years later they could be having no income and no job prospects or ill and the i864 is valid till the immigrant receives 40 credits on his social security. Thus i864 can be activated even after divorce.

there is no mitigation of damages under i864 , thus no order to seek employment unlike traditional divorce related support.

I am not sure if the court can consider the bank account or any financial resources as offset toward the amount that can be rewarded, in lieu of a lack of income (like salary)

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[geowrian 22,337]

9 hours ago, Alexmat1 said:

As for the I-864 this is what I know:

Its best worked out in divorce but it can still be brought up after divorce. For eg one could be working and thus earning their own income whiel divorce is finalized. A couple of years later they could be having no income and no job prospects or ill and the i864 is valid till the immigrant receives 40 credits on his social security. Thus i864 can be activated even after divorce.

True. It's harder to after divorce as you generally have to go through state courts (I believe federal ones don't like taking those cases). Check with a professional to confirm the best course to proceed.

 

9 hours ago, Alexmat1 said:

there is no mitigation of damages under i864 , thus no order to seek employment unlike traditional divorce related support.

Maybe yes, maybe no. There are rulings on both sides of this in different courts across the country, and even then it depends on the circumstances. Where you live would be the primary factor if this is in the cards or not.

The I-864 itself has no such requirement, but it can still be ordered when you seek enforcement of it.

 

9 hours ago, Alexmat1 said:

I am not sure if the court can consider the bank account or any financial resources as offset toward the amount that can be rewarded, in lieu of a lack of income (like salary)

They can consider all factors they determine to be relevant for the need for support. That will also vary by individual circumstances and court.

[Alexmat1 9]

Will add my inputs on what I know on the i864 enforcement, in case it helps any immigrant who might be in a situation of filing I 751 waiver because of divorce.

- Both the Federal and State courts can take such cases as clarified by some appeals courts. i864 enforcement would fall into Federal courts as its a immigration related matter but State Appeals courts have clarified it can be taken by State courts too. State courts handle divorce cases also known as Family law courts. Hence it can be enforced either during divorce , or after divorce (where the immigrant receives support through divorce and hence cannot qualify for i864 as he or she is anyway being supported. Once that support runs out and the immigrant is still without income i864 can be enforced)

- If the i864 doesnt have work related seek work order, then a judge cannot order it , as it was simply not a part of the i864 contract. A contract is enforced based on whats in it. I think some judges might have ordered the immigrant to seek work (based on the hang over from the divorce support laws where its usual for the supported spouse to seek work and get independent before the support runs out). The i864 support serves no such purpose, and the intent is to shift the burden of support from welfare systems/tax payers to the US citizen who brought the immigrant through marriage. He or she has the  burden of support (vs tax payers money) and the supported immigrant has no duty  to seek work. A recent case in California clarified this - the trial court ordered the immigrant to seek work but the Appeals court ordered that was incorrect and the wife had no obligation to seek work when enforcing i864 based support for her.

- As for the income I have heard different courts again treat different things as income. But a casual read of the i864 contract says income (not assets or anything else).

 

Though this was not what the original thread was for, I am leaving these comments for any immigrant who is finding it difficult to support themselves while waiting for the ROC through I-751, who is not supported during that time by the US Citizen.

 

[Ash.1101 1,756]

On 7/11/2019 at 1:59 AM, Alexmat1 said:

I send in my I-751 and they came back with RFE for divorce decree. The case was still dragging in the courts so I couldnt and USCIS denied by green card and said I will get a NOA. It took another 1.5 years more for the divorce to be finalized and got my divorce decree. By then I was down in debts with the huge divorce fees and since my Green card was revoked, I couldnt work anymore. I am going to refile I-751 and wouldnt be able to afford the filing fees. I have the following questions:

I'm more curious on why your green card was revoked? When did it get re-established?

When did you become an LPR? When was your 90 day window for ROC?

Note that every state, county and divorce is different, in my parents divorce, my father paid support for her due to the fact she was a stay at home mom for 24 years. There was no work order in place.


Please note too that there was a USC here who was paying spousal support and ordered by the court to pay the i864 at the same time. The guys basically been ran dry and the ex-spouse will be lucky if they see any money by the end of the year because the court order has him paying so much he can barely make ends meet. It's highly suspect that his ex-spouse knew just what to do to sue him and took him to the bank. 


Personally, I don't think that anyone should be using this as a "Hey if you get divorced you should sue them if things are tough" kind of thing. i864's are rarely court ordered, but from we've seen here, the courts don't actually understand the i864 and it's purpose well enough to where they can bleed the USC dry and then both the immigrant and the USC are screwed when the USC can't provide for either.

Edited July 15, 2019 by Ash.

[Alexmat1 9]

GC was revoked as I couldnt provide the Divorce decree as part of RFE. The divorce was still in the courts.

I am still in the process of reestablishing my 10 year GC. 

 

Regarding i864:

- The divorce laws and support would vary by state. However the i864 and the support obligation related to that is universal, in that it doesnt depend on State laws. Its a contract signed between USC and US Govt and the purpose is to ensure the Immigrant spouse doesnt depend on Tax dollars for his or her support (either during or after a divorce). The onus of support is on USC.

- Some judges still misunderstand i864 as it is rarely implemented and as each year goes by, there are new cases and more clarity on this. Some state courts confuse this with the divorce related support and require the immigrant spouse to seek work etc, which has been turned down by the respective appeals court. The i864 support obligation is without a need to seek work. One might wonder this would be a easy route for the immigrant spouse to never work but the support is set at Federal poverty level which isnt much but is a bare support to perhaps help the immigrant spouse to find employment above the Federal poverty level.

- Attorney fees that are incurred for executing the i864  can be ordered from the USC (as per the contract)

- In your parents case, since the marriage is more than 10 years, might be the court ordered permanent support (doubt its i864 related as beyond 10 years, the immigrant would have earned 40 social security credits through her husbands work that disqualifies her for i864 support)

 

- i864 is not required to be paid if there is another support order that provides the immigrant with atleast poverty level support. Not sure why the judge ordered both supports at same time in your example.

 

I respect your opinion and I would differ in mine. As I mentioned, the opinions on this could be split depending on if one is USC vs Immigrant spouse. There are immigrant spouses who are divorced and also unable to land a job because of lack of US experience,education or language capability or child care that limits their employment. Most of them would depend on welfare which is US tax money. I think the intent of i864 is that the sponsor of GC supports the immigrant at minimum level so that they dont bleed the Tax dollars. It comes down to if its a better option to let the immigrant use the Tax money or if the USC should support the immigrant.

 

You are right that the courts dont understand it clearly as its often ordered but recent cases across the country and the intervention of Appeals court when the trial court gets it wrong has given direction. From an immigrants stand point they have some support system while they enable themselves to start working and earning income. Esp if children are involved it helps too. Most US court decisions have support the i864 support.

 

Again this is off topic, but leaving my comments in case it helps another immigrant spouse. 

[geowrian 22,337]

I would just disagree that "some judges still misunderstand...". While yes, it's absolutely possible that some may not fully understand it, the interpretation of the contract - along with its obligations and enforceable provisions - is exactly what they are responsible for determining. Hence why there are different rulings on similar matters at both different levels of courts and within different districts. I would absolutely admit that most, if not all, judges at at least the federal appellate level understand it and the various factors better than myself.

More specifically, there is universal agreement that the requirement to mitigate damages is not explicitly stated specified in the I-864, INA, or CFRs. As such, whether one applies or not is open to interpretation.

 

There are also considerations of the applicability (or lack thereof) of common law doctrine where the suit was brought. I get that it's an agreement with the federal government, but multiple courts have upheld that state laws may constrain the applicability of certain provisions or institute restrictions in accordance with the state.

 

There's a great deal of information here: http://www.i-864.net/suing-on-the-i864-affidavit-of-support#_ftnref76

 

Different judges, different courts, and different opinions. Unless a higher court rules determines otherwise, their understanding is the legal meaning of the document regardless of whether I agree with their opinion.

[Alexmat1 9]

I would think the reason that i864 obligations get differently interpreted by different judges (state/federal) etc is because the contract is often analysed based on the support from divorce. The i864 support obligation is to protect the US tax payers from paying for the immigrant. Thus it cannot be avoided for reasons of need to mitigate damages (valid point for support in divorce though), definite period of support (in short term marriages usually half the lenght of marriage) etc etc.

i864 contract obliges the USC to support the immigrant at 125% of federal poverty level so that the tax dollars are not used for the same if the immigrant falls on welfare. Recent judgements or directions by appeal courts point in this direction. As most laws that are newly interpreted (there is push to implement this by state agencies where in any immigrant who is sponsored by USC and getting welfare is being asked to provide sponsor information so that the state can instead ask this money to be reimbursed by USC). I read about a change that might be coming this october for this. The current federal administration is pointing efforts in this direction.