Affidavit of Support - How Long am I liable?

[Cody]

I recently discovered that my wife is cheating on me after seven years of marriage, and I need to get a divorce. I remember signing an affidavit of support when applying for her visa back in 2004. I may have filled out another affidavit of support when applying for her green card, but it was so long ago that I don't remember anymore.

Does anyone know how long the affidavit of support is enforcable? Will I still be on the hook even after we are divorced, or can I just move on with my life?

[dnoblett]

I-864 is binding until:

• Immigrant leaves USA and gives up residency, OR;
  
• Immigrant Naturalizes and becomes a citizen, OR;
  
• Immigrant works and is credited with 40 quarters of work per SSA, OR;
  
• Immigrant dies, OR;
  
• Sponsor dies
  

Note you as sponsor are also responsible to report your address changes to USCIS by filing an I-865 any time you move, until one of the above 5 conditions is satisfied.

 

My wife met condition #2 above so no more reporting moves to USCIS for me or my wife.

[Cody]

My wife satisfied none of the requirements above. She was satisfied with her ten year green card and did not want to get citizenship. To make matters worse, she refused to work and doesn't really have any work credit.

 

After our divorce, I'm sure that there will be at least two years of alimony payments. Does the I-864 mean that I will need to continually support her for the next ten years while she gets a job?

 

How is it enforced?

[dnoblett]

All the I-864 enforces is if the immigrant uses any means tested benefits from the government as in welfare, if that happens, the state can sue you to repay that support.

 

If she chooses to not work and stays on welfare, this is indefinite until one of the 5 stated conditions is satisfied.

 

As for enforcement, I have not seen a case where the gov goes after the sponsor for repayment, not saying that they have not, just have not seen it.

[Randy W]

My wife satisfied none of the requirements above. She was satisfied with her ten year green card and did not want to get citizenship. To make matters worse, she refused to work and doesn't really have any work credit.

 

After our divorce, I'm sure that there will be at least two years of alimony payments. Does the I-864 mean that I will need to continually support her for the next ten years while she gets a job?

 

How is it enforced?

 

As long as you're married, she is credited with your same work credits. If you could hold out for 10 years before getting divorced, that would satisfy the 40 quarters as long as you are working yourself.\

 

The I-864 does NOT award money. She would need to go to court in order to obtain any kind of judgement against you. If she does that, be sure to get a lawyer who understands the issue, and won't simply roll over and play dead.

 

A topic on some more recent cases in the court system - http://www.chinafamilyvisa.com/forum/index.php?showtopic=4515

 

While the Court’s decision in Nguyen rests on solid res judicata principles, it is noteworthy that the Court does not address the fact that the state court’s support order of $250.00 per month significantly deviates from 125 percent of the Federal Poverty Guidelines, as required under the I-864. Moreover, the decision lacks any findings regarding other sources of support the Plaintiff may have had available to her.

 

If your spouse comes after you with the I-864, MAKE SURE you have a good attorney. The I-864 DOES NOT award her a check every month - it simply gives her the right to sue to make up the difference.

[ChrisA]

There was a recent 7^th CA decision that argued the point of the (wife or ex-wife) wasn’t actively seeking employment, were the Judge declared that the Affidavit of Support was null and void.

 

As my divorce is nearing and the Tax filing deadline just around the corner, filing separately, the ex-will get charged with TF, thus being charged with a felony, which is a deportable offense, this will end the contract between myself and the Government.

http://www.ca7.uscourts.gov/tmp/KC1FFH73.pdf

[Randy W]

There was a recent 7^th CA decision that argued the point of the (wife or ex-wife) wasn’t actively seeking employment, were the Judge declared that the Affidavit of Support was null and void.

 

As my divorce is nearing and the Tax filing deadline just around the corner, filing separately, the ex-will get charged with TF, thus being charged with a felony, which is a deportable offense, this will end the contract between myself and the Government.

http://www.ca7.uscourts.gov/tmp/KC1FFH73.pdf

I'm not commenting on your "deportable offense" claim, but you should read that case more closely, Chris -

The district judge held that Liu was not entitled to support pursuant to the I-864 affidavit during the 160-day period after she had filed her motion for summary judgment, because she hadn’t actively sought work during that period.

 

. . .

 

There is no indication of consultation with the Department of Homeland Security, the frontline enforcer of the nation’s immigration laws. And if the government is serious about wanting to impose a duty of mitigation, why hasn’t it revised Form I-864 to include such a duty? It revised the affidavit subsequent to the version Mund signed to make explicit that “divorce does not terminate your obligations under this Form I-864” (boldface in original), which before had merely been implicit. The judgment of the district court is reversed so far as concerns the court’s imposition of a duty of mitigation, and otherwise is affirmed.

The "duty of mitigation" referred to is the requirement that she look for a job.

 

The I-864 list terminating conditions, but does NOT include the immigrant’s failing to seek employment diligently.

 

In my own opinion, this guy simply needs a better lawyer - it's interesting to note that she didn't have one, and refused the court appointed lawyer - "We requested a lawyer to participate in the appeal as an amicus curiae to present Liu’s position".

 

It's not clear whether a judgement was actually made that requires him to pay support, but the I-864 was upheld, regardless of the fact that she hadn't "actively sought work".

[Beachey]

 

 

As long as you're married, she is credited with your same work credits. If you could hold out for 10 years before getting divorced, that would satisfy the 40 quarters as long as you are working yourself.\

 

 

This is the first time I have seen this interpretation of the 40 credits rule. Do you have a link?

[ChrisA]

The of the 7^th Cir decision, is that it’s being fought in the courts now in regards to the I-864, points to be taken into account , does she have a marketable skill, if so, then there is no reason not to seek employment unless his wife had the mind set of being (trophy wife). In the case provided, she refused to seek employment. The use of my current situation is a good example of having this contract terminated by other means.

Edited August 3, 2012 by ChrisA (see edit history)

[ChrisA]

As long as you're married, she is credited with your same work credits. If you could hold out for 10 years before getting divorced, that would satisfy the 40 quarters as long as you are working yourself.\

 

 

This is the first time I have seen this interpretation of the 40 credits rule. Do you have a link?

 

I haven't seen this either?

[Randy W]

The of the 7^th Cir decision, is that it’s being fought in the courts now in regards to the I-864, points to be taken into account , does she have a marketable skill, if so, then there is no reason not to seek employment unless his wife had the mind set of being (trophy wife). In the case provided, she refused to seek employment. The use of my current situation is a good example of having this contract terminated by other means.

 

I agree, but I think the correct argument to use is to refer to her "earnings capacity". She can't be required to work, but she DOES have her earnings capacity as an asset which can be drawn upon.

 

The ruling that you post of the &th Circuit Court of Appeals is that the I-864 DOES NOT require her to try to work

 

In any event, like I've said many times - GET A GOOD LAWYER.

[dnoblett]

This is the first time I have seen this interpretation of the 40 credits rule. Do you have a link?

 

I haven't seen this either?

 

While married both partners accumulate work credits, 40 quarters are added together, so for example both sponsor and spouse immigrant work from day 1 of the green-card and both make more than I believe 1000 or 1200 so each quarter, the couple will be credited 2 quarters credits per quarter, so the I-864's requirement could be satisfied in as little as 5 years or even less if immigrant was living in the USA and working prior to marriage as in a work visa.

 

If only the US citizen sponsor works and the immigrant does not, and they remain married 10 years or longer, the sponsor would have worked the 40 credits required.

3233 QUALIFYING QUARTERS OF EARNED INCOME

 

Individuals who are lawfully admitted for permanent residence [section 3232] but have not resided in the U.S. at least five years must meet eligibility criteria status identified in 3231 or can be credited with 40 qualifying quarters of earned income to be eligible. A qualifying quarter of earned income is defined as the amount of earnings received by the individual (or his/her spouse or parents) for employment or self-employment covered under Title II of the Social Security Act. (Non covered SSA wages also count in the 40 quarters and are captured via SVES.)

 

The amount of earnings worked at a job covered by Social Security or self-employment earnings on which Social Security tax must be paid determine the qualifying quarters of coverage. Workers are credited a maximum of 4 quarters per year by the Social Security Administration (SSA). Aliens must have worked to earn 40 quarters of credit as per Social Security Administration's rules unless their spouse or parents can share their credits with them. Once the alien can be credited with 40 qualifying quarters, he/she has met non-citizen eligibility requirements even if he/she stops working. The only time credits would be removed from an alien would be if the individual received credits from a spouse, and they became divorced; or if parental rights terminated for a child. The same quarter of credit may be applied to more than individual (self, spouse, and dependent child(ren).

 

3233.1 SPOUSAL CREDITS:

 

Spousal credits may be shared for the period of time they are married if they are still married or were married at the time the spouse was deceased. Qualifying quarters may be credited to a non-citizen spouse even if the individual employed is a US citizen. If the marriage terminates during the certification period, the qualifying quarters from the spouse are no longer allowed to be credited when the case is next certified (eligibility continues until recertification occurs).

• EXAMPLE: Jim and his wife Janet are aliens lawfully admitted for permanent residence. Jim has been credited with 25 qualifying quarters of employment and Janet has 10 qualifying quarters. Neither Jim nor Janet are eligible because they individually or together do not have 40 credits. (Jim has 25 + 10 from Janet = 35; Janet has 10 + 25 from Jim = 35.) [Even if Jim were a US citizen, Janet would receive credit for quarters of income that Jim earned during the period they were married to each other.]
  
• EXAMPLE 2: Jim and his wife Janet are aliens lawfully admitted for permanent residence. Jim has been credited with 35 qualifying quarters of employment and Janet has 15 qualifying quarters. Jim and Janet are eligible because together they have at least 40 quarters (Jim has 35 + 15 from Janet = 50, Janet has 15 + 35 from Jim equals 50.)
  

http://dss.sd.gov/fo...3233_sdfscm.htm

[Randy W]

name='Beachey' timestamp='1343995114' post='590695'

 

name='Randy W' timestamp='1343954003' post='590675'

As long as you're married, she is credited with your same work credits. If you could hold out for 10 years before getting divorced, that would satisfy the 40 quarters as long as you are working yourself.

 

 

 

This is the first time I have seen this interpretation of the 40 credits rule. Do you have a link?

 

 

 

Basically, the USCIS defers to the SSA for a determination of what constitutes a "work quarter" - for example, if you earn $5520 in one day, that gives you four quarters of credit right there

 

http://www.immihelp....exceptions.html refers to exactly what I stated

 

name='SSA'

How are Qualifying Work Quarters Calculated?

 

SSA counts the qualifying work quarters for an individual. That total not only includes the individual’s work quarters but also the work quarters of the following people:

 

l The spouse. Even if the individual is divorced, or the spouse died, any work quarters the spouse earned during the marriage are counted toward the individual’s work quarters.

 

l The parents. Work quarters earned by a parent when the individual was under age 18 are counted toward the individual’s work quarters.

 

"In 2012, you receive one credit for each $1,130 of earnings, up to the maximum of four credits per year."

 

 

 

The SSA site seems to be hard to impossible to search - this may be the best quote

40 QUARTERS SSA IN LIEU OF I 864

 

name='Dept. of State' : INA SECTION 213 (A)(A)(3)(( B ) NOTES THAT, IN DETERMINING THE NUMBER OF QUARTERS, THE ALIEN SHALL BE CREDITED WITH (I) ALL OF THE QUALIFYING QUARTERS OF COVERAGE AS DEFINED UNDER TITLE II OF THE SOCIAL SECURITY ACT WORKED BY A PARENT OF SUCH ALIEN WHILE THE ALIEN WAS UNDER AGE 18, AND (II) ALL OF THE QUALIFYING QUARTERS WORKED BY A SPOUSE OF SUCH ALIEN DURING THEIR MARRIAGE AND THE ALIEN REMAUSCIS MARRIED TO SUCH SPOUSE OR SUCH SPOUSE IS DECEASED. (NOTE: TITLE II OF THE SOCIAL SECURITY ACT REFERS TO FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE BENEFITS.)

 

 

 

and in the instructions for the I-864W - http://www.uscis.gov...orm/I-864w.pdf. The I-864W is filed to show that the immigrant is EXEMPT from the I-864 requirement.

 

name='I-864W'

(1) You have earned (or can be credited with) 40 quarters of coverage under the Social Security Act (SSA). If you have 40 quarters or SSA coverage, you are exempt from the requirement to file Form I-864. You can acquire 40 qualifying quarters in the following ways:

By being credited under section 213( a )(3)( B ) of the Immigration and Nationality Act with quarters worked by your spouse during the marriage or a parent during the time you were under 18 years of age; or

Working in the United States for 40 quarters in which you received the minimum income established by the Social Security Administration; or

A combination of the above

 

 

INA section 213( a )(3)( B ) says:

( B ) QUALIFYING QUARTERS.-For purposes of this section, in determining the number of qualifying quarters of coverage under title II of the Social Security Act an alien shall be credited with-

(i) all of the qualifying quarters of coverage as defined under title II of the Social Security Act worked by a parent of such alien while the alien was under age 18, and

(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.

 

 

I didn't realize that the spouse's quarters would be lost in the event of divorce. Sorry - had a hellacious time with the quote tags, until I just deleted them all.

Edited August 3, 2012 by Randy W (see edit history)

[Randy W]

But no, Dan - I believe you're limited to four quarters of credit every year, so it will ALWAYS take 10 years to accumulate 40 credits.

[tsap seui]

Good post Dan.

 

Oh my Gawd.....I'm on SSDI with a VA 100% disability. Uncle Sammy doesn't tax, or count either one with earned income credits. What? I can't trade Wenyan in on two 25 year old models when she turns 50 without havin' this here gal'dern I-864 boat anchor tied around my ankle? Well, blow me down matey. And I guess her dadgummed rental complex doesn't dosen't count as earned income credits either???? And I was so lookin' forward to those two 25 year olds.

 

Please, don't anyone cut n' paste this post to Winnie, she'll add a ton of extra salt to my next bowl of fish eyeball soup and fry my heart.

 

tsap seui