I am the USC. If things don't work between us and if we divorce, will I be obligated to pay 125% above poverty level support for him? Or, will I only be obligated to pay back means tested public benefits?

I believe you would go through a court and figure out a reasonable alimony.

It would be cruel and unusual punishment to have to pay 125% above the poverty level. However, if you were on the more wealthy side, I suppose that amount is certainly possible.

As I understand, the support by way of the affidavit that requires you to pay 125% of the base poverty level involves a situation where the immigrant doesn't make any money and invokes public support and becomes a charge on society. Not that the sponsor has to pay 125% ABOVE the poverty level...it's 125% OF the DHS poverty level. The entity providing the enumerated public services (and it's not all or everything, like welfare, which is separate and not reimburseable by the sponsor) can seek reimbursement from the sponsor up to that amount (medical bills, for example, in the case of emergency services...). But, if the immigrant makes the minimum amount and is not, basically, on the street, homeless and without any money, then there is no liability from the affidavit of support standpoint, anyway, for such payments.

My understanding is that the sponsor simply guarantees that the immigrant beneficiary will not be a public charge, and the guarantee is to ensure that funds are available to preserve minimum poverty levels for the beneficiary. By no means is it a blank check for an immigrant to seek support (unless, of course, the immigrant has no job, and no earning potential).

In the context of family law and dissolution proceedings, however, posters here have mentioned that there are cases where judge's look at the affidavit of support and make it mean that, at a minimum, the sponsor should pay that amount regardless of the status of the immigrant (which I believe was not the intention of the affidavit of support at all).

The argument for the USC is that the affidavit simply ensures that the beneficiary isn't impoverished, and if they make or can make, say, $1,200 per month gross, there is no additional obligation on the part of the USC. What a family law court will do is another issue.

Actually, in the cases I've encountered where an alien has used the extant contract between the petitioner and the US government, by way of the Affidavit of Support, to secure 125% of the poverty guideline figure, it was in lieu of seeking an award of spousal support from a family court. What is more important, is that in one particular case from Indiana, Stump v Stump, the court enforced the USC's obligation to maintain the alien at a minimum of 125% of the PG figure, and did not require that the alien to seek work. It found that the contract that the USC had signed made no mention of a requirement of the alien to mitigate.

With no timeline to see where you are in the process I would have to say that if you are asking the question the maybe you should stop what you are doing and evaluate your situation. If you aren't sure now what will it be like in a month or a year

"no mention of a requirement of the alien to mitigate."

That's lousy. But as I read the regulations and commentary concerning the Affidavit of Support, once the immigrant can sustain 125% of the minimum poverty standards, the USC is no longer on the hook. It's not as if the immigrant can go out, get a job making $1,500 a month, for example, and then come after the USC for another $1,200 (or whatever the guideline requires). Plus...as I read the statute, the obligation is for reimbursement to the State for certain services that are provided to the immigrant...it's not like the USC has to write a check every month to the immigrant. If the immigrant seeks certain assistance, cannot pay for the assistance, and makes, say, $895 per month, the obligation on the part of the USC is to make up the difference...in this case, $205 (assuming 125% of the minimum federal poverty standard is $1,200 per month).

The earning level of the immigrant is not a condition that terminates the I-864 support requirement. What regulation/commentary gives you that impression?

The only way that the USC is "off the Hook" when it come to the Affidavit of Support is:-

1 The immigrant leave the USA permanently

2 The immigrant acquires 40 credits (10 years of Work)

3 The immigrant becomes a US Citizen

4 The immigrant dies

5 The USC dies...

How much the immigrant earns has no bearing on the Affidavit of Support.....


Kez

If the immigrant earns what is the equivalent of 125% of the base poverty level, then what more is there for the sponsor to pay? The affidavit of support requires the sponsor to ensure that the immigrant has that much under their belt to pay for social services. I'll grab the citation for the regulations and commentary and post it. I think I did, though, once before, but I'll go check it out.

The affidavit of support is to ensure that the immigrant does not become a public charge, and that someone will stand in financially for the immigrant if they are destitute, basically. There is no requirement that, even if the immigrant is making the money, the sponsor still has to pay. Indeed, this requirement to maintain the minimum standards does last 10 years, and if the immigrant goes below the poverty level, the sponsor is responsible. But if the immigrant makes $1,200 a month, there's nothing further for the sponsor (at least under the regulations...unless a court might award something like that in dissolution proceedings...but that's not part of the statute)

"What regulation/commentary gives you that impression?"

The earning level of the immigrant does not terminate the affidavit of support...that continues. However, if the immigrant makes the bare minimum, the exposure on the part of the sponsor is nil. The support is ONLY required if the immigrant utilizes certain social services and isn't making the minimum. And...the obligation is one on the part of the sponsor to reimburse the agencies offering the social services, not one to cut a check to the immigrant every month.

I referenced a citation in another thread that relates to commentary concerning affidavits of support. The foregoing is my reading and interpretation of the statutes. Maybe there is something else I am missing, but the affidavit of support is not an agreement between the immigrant and the sponsor such that the sponsor is required to pay the immigrant a set sum every month; rather, it's an agreement on the part of the sponsor to pay for certain governmental social service in the event the immigrant dips below certain defined income requirements as defined by minimum poverty level.

tito,

http://www.ilw.com/immigdaily/cases/2005,1107-stump1.pdf

These examples are enough to give anyone a heart attack.

Does he have a job?

Yes, but he is on disability and in the hospital.

I'd appeal that ruling. The Court read way too much into the meaning, and imposed obligations that simply do not exist. The way I read the statute and the agreement is that the sponsor ensures that the immigrant is not and will not become a public charge - it is certainly not (the case notwithstanding) a requirement that the sponsor shell out the $1,200 (or whatever the amount happens to be that equates to 125% of the poverty level) no matter what as support for the immigrant. The decision is plain wrong and ill-founded. Kudos to the attorney who argued for the immigrant! In the profession, that's a magician...making something out of nothing.

Hardly something out of nothing..... the USC has signed a Affidavit of Support stating that the immigrant will not become a public charge... if the immigrant then needs the financial support of the USC so as not to have to claim any means tested benefits then it is the USC's responsibility to give the immigrant enough so they dont have to claim....

sounds right to me....

Kez

There have been subsequent regulations and commentary regarding the scope of the affidavit of support that might address some of these concerns. The way I analyze the statutory framework and the language of the affidavit itself, the liability is limited to the reimbursement for means-tested public benefits, and isn't an open checkbook. Yes, that particular court found differently.

"sounds right to me...."

I disagree. The extent of the exposure is the liability for means tested public benefits, IF they are incurred...and IF the immigrant becomes a public charge. If no benefits were received, or if the immigrant meets the minimum poverty level (125%), then there is no additional exposure. Or there should not be, anyway. To that extent, I wholeheartedly disagree. Yes, an immigrant or the public entity may sue for benefits received or conferred IF the immigrant does not meet the minimum standards, UP TO 125% of the standards. The affidavit of support was NOT designed to impose such a heavy burden on a sponsor. That's more than what the sponsor bargains for, and the instructions in the affidavit of support do make that distinction (if I recall correctly, anyway!).

In the case cited, the Court separated out the right of the immigrant to sue from the right of the public entity to sue, expanding the right of the immigrant to cover support beyond public benefits. I think that is a very serious error on the part of the court. The right on the part of the immigrant to sue is tantamount to the right of the public agency, and concerns those very public benefits, and should not have been separated out and then extrapolated for the immigrant.

Then we will have to agree to disagree.....


Kez

But that's not how they apply it. When my first husband became disabled and unable to work, they provided him with medical coverage and then billed me based on my income a percentage to pay back to the gov't what they had to pay him. A judge awarding money from the USC to the beneficiary based on the affadavit of support is not the intent of that regulation. The intent is not to support the beneficiary or protect the beneficiary at all. It's to protect the gov't and taxpayers.

The TRIGGER for the liability is the benefit of means-tested public benefit. IF they are incurred, and IF the immigrant does not reach a minimum level, THEN there is exposure on the part of the sponsor, up to the value of 125% of the minimum standard. Again, the support is not an open checkbook requiring the sponsor to shell out money just to support the immigrant...only when there are these specified public benefits involved. It is not sufficient merely that the immigrant simply doesn't have money. The concept of "public charge" arises once a certain type of benefit is received, and the liability on the part of the sponsor is for the value of that benefit...and the immigrant can sue to enforce the obligation, as can the public entity. Indeed, there are types of public aid and assistance for which the immigrant might be eligible that do NOT invoke the right to seek reimbursement...some that are not deemed to be 'means tested', for example. The immigrant could obtain those benefits and there would be no exposure for the sponsor.

The issue is important enough to flush out, though, especially in the context of these forums where such questions continually arise.

"The intent is not to support the beneficiary or protect the beneficiary at all. It's to protect the gov't and taxpayers."

I believe that to be the case as well...to make sure that, IF and WHEN means tested public benefits are received, someone is there to ensure that a part of the value thereof is covered...up to 125% of the poverty level.

Well the Judge does not agree and we can disagree with the Judge and if we were in that situation we could appeal, but we are not so we can discuss it and all agree that it only applies to means tested benefits but that is not wat the courts have said....


Kez

Depends on what state court you go to, they are all 50 different places unlike Scotland, you must remember, but you are right based on what has happened here in the USA in Indiana. Another reason to make the spouse get US citizenship ASAP when available, so UCIS is off the hook!

AND Tito is right, for the courts to bend and twist the language to give the beneficiary a lifetime support contract to lay on their arse and not work and make the USCIS do it is unreal, not even in normal divorce court does that apply.

AND true in Indiana that happened they ruled in favor of the Russian/Ukraine spouse who would not work, but it is under appeal right now.

I would simply encourage anyone that is getting married to go get a prenup which completely nullifies this I864 and can be structured with spouse waiving their right to that 125% means or amount to have to pay, speaking from experience, and to force a US citizen to pay or be responsible after a divorce is ridiculous, another liberal welfare plan for a lazy immigrant, plan and simple, with the number of opportunities here in the USA there is no reason anyone should need to seek this assistance unless they are truly lazy and running a scam!

"A" court...not "THE" courts. The ruling is ill-founded. If it were appealed, it should be overruled.

Agreed!

The Stump case did refer to the INA for its legal argument. The statutes, INA § 213A(a)(1)(A) and (a)(1)( through INA § 213A(e), state that in order for an alien beneficiary of a family-based petition to overcome the public charge ground of inadmissibility, his or her USC must execute and submit a legally-enforceable affidavit of support (Form I-864).The sponsor asserts by way of his or her signature on the Form I-864 to "provide support to maintain the sponsored alien at an annual income that is not less than 125 % of the Federal poverty line during the period in which the affidavit is enforceable". Furthermore the specific jurisdiction to enforce the legally-binding affidavit lies in "any appropriate court" in actions brought by the sponsored alien against the sponsor when it comes to " financial support." And finally, possible remedies include specific performance of the contract (i.e., payment of maintenance per INA § 213A© ).

Interesting thought...since the "contract" by way of the affidavit of support is between the sponsor and the government, the benefit to the immigrant is more of a "gift" than an obligation...and as such, should not be enforceable by the immigrant, regardless of the language of the affidavit. That's a possible argument, anyway...

The argument regarding the benefits is another one...and I think could still be raised if the issue comes up again.

Any way you look at it, the issue is far from determined. In my view, the Court went to far in creating an independent right on the part of the immigrant for funding...since it seems clear to me, anyway, that the intention was that the sponsor ensure that the public entity providing the benefit get some reimbursement.

Issue definitely not settled, no matter how unsettling the Stump case...

And...regarding Stump once again...the Court dissected language and applied its own meaning, and separated out the suit by the immigrant from the action on the part of the public entity, and created an independent right on the part of the immigrant for something OTHER than that relating to the public benefit... That is clear error on the part of the Court in terms of legislative analysis. The court exceeded its boundaries by doing that.

The analysis for 'financial support' is incomplete, because subsequent regulations and commentary relegate the support for means tested public benefits. Again, the affidavit is not that far-reaching, and the Stump court seems to have overstepped its bounds and expanded the legislative intent in the process of its ruling. For the type of support for the immigrant to be that far reaching, there would have to be some sort of agreement between the sponsor and the beneficiary that is significantly more detailed in terms of what is required. In that sense, the Court also sanctioned an egregious ambiguity, and expanded the scope instead of limiting it. The agreement was one between the sponsor and the government, and the immigrant is simply an incidental beneficiary because his or her expenses would, in part, be covered if he or she invoked means tested public benefits.

I just don't see how an obligation of that scope can be gleaned from the terms of the affidavit of support, especially if there is no direct agreement between sponsor and immigrant.

Well, explain then how sponsor "deeming" under the Affidavit of Support can exist if there is no direct Agreement between sponsor and immigrant? The immigrant is a direct beneficiary of the contract between the sponsor and the government.

The "sponsor" is guaranteeing that the immigrant will not be a public charge when invoking certain types of public benefits. At best, the immigrant is an indirect third party beneficiary, and there is no other agreement between the sponsor and the immigrant (although there could be a prenuptial that provides that the immigrant will indemnify the sponsor, I suppose). The immigrant is NOT a direct beneficiary...that's what the Stump court said, but the analysis was incomplete because of the emphasis the court placed on certain phrases taken out of context.

The affidavit of support is NOT for the immigrant...it's for the governmental agency providing benefits, to ensure that the benefits they provide will be covered in part. The immigrant invokes the benefits of the services provided; if they don't have income to meet minimum standards, then the provider of the services OR the immigrant can sue to force the sponsor to pay for those benefits. That's the proper analysis. Unfortunately, the Stump court went a step further and imposed an obligation on the part of the sponsor to support the immigrant regardless. I still believe that analysis to be incorrect.

Oh but there is a way the USC is off the hook, provided they had a prenup put in place before marriage or even a post nup(doubtful that happens but could).

Most pre-nups are not the worth the paper they are written on.

Your little smart-a$$ comments just annoy me no end. I don't know how you get out of bed in the morning without falling out and hurting yourself.