Do we qualify for DCF?

[vpr]

Hello,

 

Was reading another thread where the discussion of DCF came into play - I became a bit confused, as did the thread, so I wanted to ask in a clear manner.

 

Do we qualify for DCF?

 

I came to China in 2006 (September)

I've lived and worked here in Wuhan ever since.

I did go back to the USA in March of 2008 for 2 months, then returned to Wuhan for another year.

We're not married yet, but are planning to sign the papers in September.

I have signed another year contract to take me to July 2, 2010.

 

So after we sign the marriage papers in September, can we immediatly get started on a DCF?

 

~Tom

[Randy W]

Hello,

 

Was reading another thread where the discussion of DCF came into play - I became a bit confused, as did the thread, so I wanted to ask in a clear manner.

 

Do we qualify for DCF?

 

I came to China in 2006 (September)

I've lived and worked here in Wuhan ever since.

I did go back to the USA in March of 2008 for 2 months, then returned to Wuhan for another year.

We're not married yet, but are planning to sign the papers in September.

I have signed another year contract to take me to July 2, 2010.

 

So after we sign the marriage papers in September, can we immediatly get started on a DCF?

 

~Tom

 

 

As long as you have been resident in China for 6 months, you meet the 6 months rule.

 

The other (separate) part is that you have to get married.

 

Yes he can apply immediately after you get married.

 

Check with your consulate for any details.

[dnoblett]

You qualify, the rule is that you have been resident 6 months or longer, NOT 6 months residence while married the entire 6 months.

 

So you can be resident more than 6 months and only married a few days and still qualify.

[katnreno]

Hey Tom:

 

Yes, you seem to qualify. I'm assuming you are there on a working Z visa.

 

My wife and i married in April and DCF'd in Beijing in May. So if you need any advice or directions from someone who has DCF'd in China recently feel free to ask.

 

I know when we began the process we were very confused and afraid because there weren't many people who DCF'd in China on the forum, so many of the answers we received about our questions were assumptions rather than first-hand knowledge. Except for Dnoblett....he's an expert on everything. He's a great guy to have on your side.

 

The other thing that made our situation even more unique on CFL was the fact that I am American, my wife is Russian, both of us lived and worked in China, we married in China and we DCF'd in China. I haven't seen another case like ours on CFL yet. I'm not saying there isn't another case like ours, I just haven't run across anyone yet.

 

One thing you should know the answer to before you begin the process is:

 

How do you plan to handle the Affidavit of Support?

 

I'm assuming you are an English teacher in China and working for a Chinese company.

Edited July 11, 2009 by twoinchina (see edit history)

[david_dawei]

bottom line is: you need to furnish evidence that qualify... you can't just walk in the consulate door and say "i've been here 3 years"... they need documentation of the proper proof of residency or work.

[warpedbored]

Sounds like you qualify. The big hurdles will be income and domocile. Also you have to have filed your taxes every year whether you owe any or not.

[vpr]

bottom line is: you need to furnish evidence that qualify... you can't just walk in the consulate door and say "i've been here 3 years"... they need documentation of the proper proof of residency or work.

 

Obviously, I assume that the permits held within my passport would pass for that.

 

Sounds like you qualify. The big hurdles will be income and domocile. Also you have to have filed your taxes every year whether you owe any or not.

 

Agreed on those two issues... I plan to have my father co-sponser, if needed I've asked 2 of my friends who have agreed as well.

 

I still maintain a bank account in the US, and a credit card as well.

 

I have filed my taxes every year!

 

Hey Tom:

 

Yes, you seem to qualify. I'm assuming you are there on a working Z visa.

 

One thing you should know the answer to before you begin the process is:

 

How do you plan to handle the Affidavit of Support?

 

I'm assuming you are an English teacher in China and working for a Chinese company.

 

Your assumptions are right -- I have no other choice but to get a co-sponsor as being an English teacher in China does not produce a very high income.

 

~Tom

[david_dawei]

bottom line is: you need to furnish evidence that qualify... you can't just walk in the consulate door and say "i've been here 3 years"... they need documentation of the proper proof of residency or work.

 

Obviously, I assume that the permits held within my passport would pass for that.

 

Here is the party line proof usually mentioned:

- a valid Chinese "Foreigner Residence Permit"

- "Z" work visa,

- ¡°X¡± student visa

- or other long-term official authorization permitting you to live in China

[whome?]

bottom line is: you need to furnish evidence that qualify... you can't just walk in the consulate door and say "i've been here 3 years"... they need documentation of the proper proof of residency or work.

 

Obviously, I assume that the permits held within my passport would pass for that.

 

Here is the party line proof usually mentioned:

- a valid Chinese "Foreigner Residence Permit"

- "Z" work visa,

- ¡°X¡± student visa

- or other long-term official authorization permitting you to live in China

Actually I do not know why they say a valid Z work visa is proof. A Z visa is a single entry visa valid for 3 months only. It is required in order for you to then apply for and recieve a residence permit.

 

To DCF you either need a valid residence permit or student visa.

 

If you are over here using a F-visa then you must provide proof of residence because technically you should not be living in china on a F-visa. Many foreigners do this however because it is much simpler than getting a work visa. Technically they are "illegal immigrants".

[Rob and WeiLing]

Agreed on those two issues... I plan to have my father co-sponser, if needed I've asked 2 of my friends who have agreed as well.

 

Hi Tom, welcome to the Candle. I'll be interested to know how your DCF progresses, as I'll be planning to file one in February or March of 2010. (Was it my thread that confused you? I know that the thread became confused for a while.)

 

There were a few things about co-sponsors that I wanted to mention. The I-864 (Affidavit of Support) limits the number of joint sponsors to two. I haven't done too much research into this, but I think it is only expanded to allow "you plus two" if the first joint sponsor cannot support all of the intending immigrants. Since you only intend to sponsor one person, I believe the maximum will be "you plus one" joint-sponsor in this case. You've listed three possible co-sponsors (you plus three).

 

Here is the direct wording:

If the person who is seeking the immigration of one or more of his or her relatives cannot meet the income requirements, a "joint sponsor" who can meet the requirements may submit a Form I-864 to sponsor all or some of the family members.

 

A joint sponsor can be any U.S. citizen, U.S. national, or lawful permanent resident who is at least 18 years old, domiciled in the United States, or its territories or possessions, and willing to be held jointly liable with the petitioner for the support of the intending immigrant. A joint sponsor does not have to be related to the petitioning sponsor or the intending immigrant.

 

If the first joint sponsor completes Form I-864 for some rather than all the family members, a second qualifying joint sponsor will be required to sponsor the remaining family members. There may be no more than two joint sponsors. A joint sponsor must be able to meet the income requirements for all the persons he or she is sponsoring without combining resources with the petitioning sponsor or a second joint sponsor. Any dependents applying for an immigrant visa or adjustment of status more than six months after immigration of the intending immigrants must be sponsored by the petitioner but may be sponsored by an original joint sponsor or a different joint sponsor.

 

Even if one or more I-864s are submitted for an intending immigrant, the petitioning sponsor remains legally accountable for the financial support of the sponsored alien along with the joint sponsor(s).

 

That bold emphasis is part of the original text, and it is important. Make absolutely sure that your co-sponsor(s) all understand the full implications of co-sponsoring. The I-864 is a contract between the sponsor/co-sponsor and the US government stating that you will maintain the intending immigrant (your wife) at 125% of the poverty level until one of six (6) conditions is met. Again, quoting from the I-864:

Your obligations under a Form I-864 will end if the person who becomes a permanent resident based on a Form I-864 that you signed:

• Becomes a U.S. citizen;
  
• Has worked, or can be credited wit, 40 quarters of coverage under the Social Security Act;
  
• No longer has lawful permanent resident status, and has departed the United States;
  
• Becomes 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
  
• Dies.
  

Note that divorce does not terminate your obligations under this Form I-864.

 

Your obligations under a Form I-864 also end if you die. Therefore, if you die, your Estate will not be required to take responsibility for the person's support after your death. Your Estate may, however, be responsible for any support that you owed before you died.

Again, the bold emphasis is part of the original. This has been tested in court, and from my research this contract trumps prenuptial agreements and divorce court decisions. For all intents and purposes, there's no getting out of it.

 

Basically, if your wife divorces you and never remarries, she can choose not to work and just live off of the money her sponsors are required to give her. (Currently, that's over $1,000 each month. If she does take a job or remarry, you need only make up the difference between her income and the 125% poverty line.) As an added level of bureaucracy, each sponsor will have to file an I-865 within 30 days of any change of address. Failure to do so may result in civil fines.

 

I don't want to scare you away, or insinuate that your wife is planning to use/divorce you. There have been extremely few cases of this happening; however, this is still a major consideration for any potential sponsor. Make sure your father or friend knows that they may be held financially responsible even if your marriage goes south.

 

 

In any case, keep us updated.

[Randy W]

No it hasn't been tested in court, as far as we know. In fact, the USCIS was sued for an interpretation of the I-864. They bowed out, as not being pertinent (I forget the legalese) to the proceedings.

 

It has come up in divorce cases, but was used in asking for support amounts.

 

Basically, when the time came to award support to the spouse, her lawyer piped up and brought out the I-864. His lawyer rolled over and played

 

The guy I mentioned above then sued the USCIS to see if the amount was correct. The USCIS replied, don't come to us!

 

Basically, if you are sued by someone over the I-864, get a good lawyer who will stand up for you in court

Edited July 17, 2009 by Randy W (see edit history)

[katnreno]

 

Actually I do not know why they say a valid Z work visa is proof. A Z visa is a single entry visa valid for 3 months only. It is required in order for you to then apply for and recieve a residence permit.

 

 

That would be incorrect because Z visa are usually issued for 1 year. I lived in China for 5 years and all of my Z visa's were for 1 year Multi-Entry. I don't think I have ever met anyone there on a Z visa that was for less than a year.

 

The Z visa's are visa's issued to people intending to work in China and there are two types I know of:

 

1) the kind issued to foreigners working in the education field (usually teaching English)

 

2) the other kind is for non-education related employment.

 

Your Chinese employer will request the Z visa and work permit (a seperate dark redish book) from the Public Security Bureau.

[Randy W]

No it hasn't been tested in court, as far as we know. In fact, the USCIS was sued for an interpretation of the I-864. They bowed out, as not being pertinent (I forget the legalese) to the proceedings.

 

It has come up in divorce cases, but was used in asking for support amounts.

 

Basically, when the time came to award support to the spouse, her lawyer piped up and brought out the I-864. His lawyer rolled over and played

 

The guy I mentioned above then sued the USCIS to see if the amount was correct. The USCIS replied, don't come to us!

 

Basically, if you are sued by someone over the I-864, get a good lawyer who will stand up for you in court

 

 

This is a case where the USCIS was sued to determine he amount of financial support owed to his ex. The USCIS claimed a "lack of subject matter jurisdiction" - that the support was determined by the courts, and not by the I-864. The case was dismissed.

 

http://www.ca6.uscourts.gov/opinions.pdf/07a0324p-06.pdf

 

RONALD LEE GILMAN, Circuit Judge. The district court dismissed John J. Davis¡¯s complaint due to the lack of subject matter jurisdiction. Davis had sought a declaratory judgment to determine the amount of financial support that he owes to his wife, from whom he is legally

separated, under an Affidavit of Support that the government required him to file on her behalf

when she immigrated to the United States from Ukraine. This suit came after a state court in Ohio

enforced the Affidavit by obligating Davis to pay his wife monthly support. But Davis contends that

his cause of action stems from an enforceable contract between himself and the government that arises under federal law, despite the prior state-court ruling. He thus argues that he has properly established subject matter jurisdiction. For the reasons set forth below, we AFFIRM the judgment of the district court.

[Guest Tony n Terrific]

No it hasn't been tested in court, as far as we know. In fact, the USCIS was sued for an interpretation of the I-864. They bowed out, as not being pertinent (I forget the legalese) to the proceedings.

 

It has come up in divorce cases, but was used in asking for support amounts.

 

Basically, when the time came to award support to the spouse, her lawyer piped up and brought out the I-864. His lawyer rolled over and played

 

The guy I mentioned above then sued the USCIS to see if the amount was correct. The USCIS replied, don't come to us!

 

Basically, if you are sued by someone over the I-864, get a good lawyer who will stand up for you in court

 

 

This is a case where the USCIS was sued to determine he amount of financial support owed to his ex. The USCIS claimed a "lack of subject matter jurisdiction" - that the support was determined by the courts, and not by the I-864. The case was dismissed.

 

http://www.ca6.uscourts.gov/opinions.pdf/07a0324p-06.pdf

 

RONALD LEE GILMAN, Circuit Judge. The district court dismissed John J. Davis¡¯s complaint due to the lack of subject matter jurisdiction. Davis had sought a declaratory judgment to determine the amount of financial support that he owes to his wife, from whom he is legally

separated, under an Affidavit of Support that the government required him to file on her behalf

when she immigrated to the United States from Ukraine. This suit came after a state court in Ohio

enforced the Affidavit by obligating Davis to pay his wife monthly support. But Davis contends that

his cause of action stems from an enforceable contract between himself and the government that arises under federal law, despite the prior state-court ruling. He thus argues that he has properly established subject matter jurisdiction. For the reasons set forth below, we AFFIRM the judgment of the district court.

This ruling should be pinned for future reference.

[david_dawei]

The 2 joint sponsor limit has a loop hole; it's the 'household' member(s) filing of I-864a