How many family members for AOS? Ex husband came as I-129 but I don't know where he is

[Verrou 1,962]

depend on how much you make? if its way over the minimum to cover for "additional" person, perhaps it is easier to just add extra 1 for the ex-husband?

[pushbrk 13,117]

5 hours ago, Mike E said:

I don’t know what OP’s income is.  
 

The original post asked if ex should be counted or not.  I’m trying to answer  that question.  So far the evidence says “no”.  And thus I disagree with all the other answers. 

Does she have EVIDENCE to show that he should not be counted?  Answer is NO.  She just has your (probably correct) supposition.  My recommendation was based on her income being sufficient either way.  If it wasn't, I'm sure she would be saying so and engaging with your expressed "way out".

[Boiler 46,118]

We come full circle

[Simplytex 387]

10 hours ago, Mike E said:

1. so during the marriage you earned at least 40 credits?

 

It's not quite as simple as that - I have been (am in?) the same situation as OP. The 40 credits only count on a 'means-tested' basis at the time of receiving govt benefit.

 

Essentially, the govt doesn't give a darn if you and the ex were married and qualified at that point, if you get divorced/legally separated, then a person who originally qualified when married, now reverts back to being unqualified, and even though you are divorced, you (petitioner/sponsor) are still technically on the hook! In my situation - while I was married to my ex, she would have had 40+ SS credits if we counted hers, plus mine from the duration of the marriage. But, when we divorced, she can no longer count my credits, she only had about 15 at the time of divorce, so I am counting down the five more years that I am on the hook... and that's assuming she keeps working!

 

It's an atrocious oversight, but technically you could even be on the hook if your ex remarries to someone with a very small amount of SS credits (thereby, the sum of earned credits is still under 40.) It's hard to believe, but thats the way the govt looks at it. You sponsored, you signed the dotted line, you are on the hook. The only permanent ways to no longer be a sponsor are if the beneficiary themselves hits 40 SS credits, beneficiary dies, beneficiary becomes USC, or abandons residency. The use of calculated SS quarters/credits only applies if you are still married.

 

 

[Mike E 11,742]

If she was married 10 years to her ex husband   and she has 40 credits then, some lawyers believe, since he can claim a social security benefit, that she is off the hook. 
 

If 40 credits were earned between both spouses then my understanding is that sponsor is off the hook. And https://www.shusterman.com/social-security-affidavit-support/ which reproduces an INS policy memo, agrees.  

 

[Madamsosa 2]

Thank you all for your insight! I do have enough income to cover even with the ex. I think that to avoid problems and delays with filing I will just count him. It seems that will be the easiest way for now. Thank you so much! 

[Simplytex 387]

4 hours ago, Mike E said:

If she was married 10 years to her ex husband   and she has 40 credits then, some lawyers believe, since he can claim a social security benefit, that she is off the hook. 
 

If 40 credits were earned between both spouses then my understanding is that sponsor is off the hook. And https://www.shusterman.com/social-security-affidavit-support/ which reproduces an INS policy memo, agrees.  

 

But even per that memo, in 5.ii:

ALL OF THE QUALIFYING QUARTERS WORKED BY A SPOUSE OF SUCH ALIEN DURING THEIR MARRIAGE AND THE ALIEN REMAINS MARRIED TO SUCH SPOUSE OR SUCH SPOUSE IS DECEASED. [Emphasis mine]

 

To really dig into it (I know my way around CFR's just cause of my job, but I'm not a lawyer/this isn't legal advice) :

8 CFR § 213a.2 - Use of affidavit of support. https://www.law.cornell.edu/cfr/text/8/213a.2 states that affadavit of support/sponsorship obligations end when the beneficiary:

e.2.i.b - " Has worked, or can be credited with, 40 qualifying quarters of coverage under title II of the Social Security Act, 42 U.S.C. 401, et seq., provided that the sponsored immigrant is not credited with any quarter beginning after December 31, 1996, during which the sponsored immigrant receives or received any Federal means-tested public benefit;"

 

So then, going across to the SSA manual https://secure.ssa.gov/poms.nsf/lnx/0500502135

"For purposes of establishing the SSI eligibility of a LAPR, a QQ is a QQ earned by: ... a spouse(s) (as defined in SI 00501.150B.1. and developed per SI 00502.145) during their marriage if the marriage continues or the spouse is deceased."

and going a bit further down to section 2.d.4:

"A former spouse's QQs cannot be credited if the marriage ended, unless by death, before a determination of alien eligibility is made for the LAPR alien.

 

EXAMPLE: An LAPR alien was married to a U.S. citizen for 12 years. The LAPR alien has no QQs of his/her own. The spouse earned over 40 QQs during their marriage. The marriage terminated by divorce 4 months before the determination of eligibility was made for the LAPR alien. No QQs can be credited from the former spouse in determining SSI eligibility.

 

NOTE: A legal marriage ends by a divorce or annulment. The holding-out relationship ends the month after the month the holding-out couple is no longer living together. (See SI 00501.150.)

QQs credited from a spouse are not lost if the marriage ends (including a holding-out relationship) for any reason after a determination of eligibility is made for the LAPR alien. However, if benefits terminate and a new claim is required, a new determination of alien eligibility must be made for the LAPR alien. If the marriage has ended as a result of a divorce or annulment when the current determination is being made, the QQs of the former spouse cannot be credited.

"

 

So, from my best understanding:

1. If a beneficiary is married, and has over 40 qualifying quarters = no obligation
2. If a beneficiary is married, and then divorces and has less than 40 qualifying quarters by themselves = obligation exists
3. If a beneficiary is married, has over 40 credits, needs govt support and is determined to have 40 credits before divorce = no obligation
4. If a beneficiary is married, qualifies for govt benefits under 3. above, but then govt determination is required again and beneficiary has less than 40 after divorce = obligation exists

Edited August 23, 2022 by Simplytex