There are many questions that people have concerning the liability of a US Citizen under the Affidavit of Support. Some people say that the affidavit puts the USC on the hook to support the immigrant for 10 years in an amount equal to 125% of the poverty guidelines, no matter what. I don't think that the regulations require that. If the immigrant earns the minimum under the poverty guidelines, then there is no requirement (under the immigration laws, anyway) that the USC pay the immigrant anything. The way I read the statutes, the obligation arises ONLY if the immigrant isn't earning the minimum, and only in situations where "the immigrant receives any "means-tested public benefits," you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits." (DivorceNet, 11/7/06).
The DHS promulgated rules and regulations concerning affidavits of support, and here is a link to commentary regarding the rules, as published in the Federal Register:
http://a257.g.akamaitech.net/7/257/2422/01...pdf/06-5522.pdf
The focus of the affidavit of support is NOT the benefit of the immigrant, such that the immigrant can seek assistance from the sponsor regardless of circumstance; rather, the focus of the affidavit of support is the GOVERNMENT, and whether the immigrant will be a public charge. The STATE is the beneficiary, not the immigrant, and even on the form for the affidavit, it clearly states that the agreement is between the sponsor and the government, and not the immigrant. I think that is an important distinction, because it seems as if some posters here are of the view that the immigrant can get money from the sponsor as part of divorce proceedings or some other order of support, and that is simply not the case, the cases cited notwithstanding (I realize that there are cases where courts used the affidavit of support for the purposes of an award of spousal support, but that is simply not part of the actual obligation under the applicable affidavit of support. Perhaps the Court in that case or those cases used the affidavit of support as a guideline in determining what would be fair support, but there is absolutely nothing in the legislation, rules or regulations that require a sponsor to pay an immigrant anything except for the costs associated with certain social services ONLY in the event that the immigrant isn't earning the minimum, and only up to the minimum, so that, if the immigrant makes $900 a month, the liability for the social services would be only $300.)
Comments?? Please feel free...this is an important discussion in terms of the liability of sponsor, and the expectations of an immigrant, and this should all be flushed out...
Full Version: What does the Affidavit of Support require?
VisaJourney.com > General Family Based Immigration Topics > Effects of Major Family Changes on Immigration Benefits
Outstanding research and comment Tito. Are you attorney? You are very knowledgeable in this area is why I ask, and are very accurate in what you say. Maybe you could find some others that know where to go to get answers to this.
Here is what I do know, if you get a prenuptial agreement in place before wedding, it will protect the beneficiary(US spouse) by having the foreign spouse waive their right to trying to use the affidavit of support as a means of alimony or maintenance to be paid. Granted it cannot be waived with paying back US govt or State govt for services, but it will stop the situation that occurred in the Stump v Stump case from what my attorney told me. And I agree with you and so does my attorney in regards to the Indiana court analysis of Stump case(it is flawed and wrong since contract is with USA govt and to protect it not the immigrant) on how it was applied, and it probably would be overturned on appeal, but that can take a long time or years to get that ruling.
What needs to happen is the USA Congress needs to pass new law to fix this loophole or US citizens need to contact their Congressman and alert them to this flagrant misuse of an intended law by immigrants trying to game the system since it it is designed for protecting the govt and to pay them back for any services obtained while married to the foreign immigrant.
Let us know if you find out anymore. Interesting topic.
Here is what I do know, if you get a prenuptial agreement in place before wedding, it will protect the beneficiary(US spouse) by having the foreign spouse waive their right to trying to use the affidavit of support as a means of alimony or maintenance to be paid. Granted it cannot be waived with paying back US govt or State govt for services, but it will stop the situation that occurred in the Stump v Stump case from what my attorney told me. And I agree with you and so does my attorney in regards to the Indiana court analysis of Stump case(it is flawed and wrong since contract is with USA govt and to protect it not the immigrant) on how it was applied, and it probably would be overturned on appeal, but that can take a long time or years to get that ruling.
What needs to happen is the USA Congress needs to pass new law to fix this loophole or US citizens need to contact their Congressman and alert them to this flagrant misuse of an intended law by immigrants trying to game the system since it it is designed for protecting the govt and to pay them back for any services obtained while married to the foreign immigrant.
Let us know if you find out anymore. Interesting topic.
QUOTE(tito @ Jan 31 2008, 02:53 PM) 
There are many questions that people have concerning the liability of a US Citizen under the Affidavit of Support. Some people say that the affidavit puts the USC on the hook to support the immigrant for 10 years in an amount equal to 125% of the poverty guidelines, no matter what. I don't think that the regulations require that. If the immigrant earns the minimum under the poverty guidelines, then there is no requirement (under the immigration laws, anyway) that the USC pay the immigrant anything. The way I read the statutes, the obligation arises ONLY if the immigrant isn't earning the minimum, and only in situations where "the immigrant receives any "means-tested public benefits," you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits." (DivorceNet, 11/7/06).
The DHS promulgated rules and regulations concerning affidavits of support, and here is a link to commentary regarding the rules, as published in the Federal Register:
http://a257.g.akamaitech.net/7/257/2422/01...pdf/06-5522.pdf
The focus of the affidavit of support is NOT the benefit of the immigrant, such that the immigrant can seek assistance from the sponsor regardless of circumstance; rather, the focus of the affidavit of support is the GOVERNMENT, and whether the immigrant will be a public charge. The STATE is the beneficiary, not the immigrant, and even on the form for the affidavit, it clearly states that the agreement is between the sponsor and the government, and not the immigrant. I think that is an important distinction, because it seems as if some posters here are of the view that the immigrant can get money from the sponsor as part of divorce proceedings or some other order of support, and that is simply not the case, the cases cited notwithstanding (I realize that there are cases where courts used the affidavit of support for the purposes of an award of spousal support, but that is simply not part of the actual obligation under the applicable affidavit of support. Perhaps the Court in that case or those cases used the affidavit of support as a guideline in determining what would be fair support, but there is absolutely nothing in the legislation, rules or regulations that require a sponsor to pay an immigrant anything except for the costs associated with certain social services ONLY in the event that the immigrant isn't earning the minimum, and only up to the minimum, so that, if the immigrant makes $900 a month, the liability for the social services would be only $300.)
Comments?? Please feel free...this is an important discussion in terms of the liability of sponsor, and the expectations of an immigrant, and this should all be flushed out...
The DHS promulgated rules and regulations concerning affidavits of support, and here is a link to commentary regarding the rules, as published in the Federal Register:
http://a257.g.akamaitech.net/7/257/2422/01...pdf/06-5522.pdf
The focus of the affidavit of support is NOT the benefit of the immigrant, such that the immigrant can seek assistance from the sponsor regardless of circumstance; rather, the focus of the affidavit of support is the GOVERNMENT, and whether the immigrant will be a public charge. The STATE is the beneficiary, not the immigrant, and even on the form for the affidavit, it clearly states that the agreement is between the sponsor and the government, and not the immigrant. I think that is an important distinction, because it seems as if some posters here are of the view that the immigrant can get money from the sponsor as part of divorce proceedings or some other order of support, and that is simply not the case, the cases cited notwithstanding (I realize that there are cases where courts used the affidavit of support for the purposes of an award of spousal support, but that is simply not part of the actual obligation under the applicable affidavit of support. Perhaps the Court in that case or those cases used the affidavit of support as a guideline in determining what would be fair support, but there is absolutely nothing in the legislation, rules or regulations that require a sponsor to pay an immigrant anything except for the costs associated with certain social services ONLY in the event that the immigrant isn't earning the minimum, and only up to the minimum, so that, if the immigrant makes $900 a month, the liability for the social services would be only $300.)
Comments?? Please feel free...this is an important discussion in terms of the liability of sponsor, and the expectations of an immigrant, and this should all be flushed out...
The Federal Register discussion is about as in-depth as anything on the subject in helping to explain the nature and extent of obligations. How the Court came to its conclusion in Stump is a mystery to me. The conclusion is simply not justified given the legislative intent, and the court played a heavy hand in interpreting things that were taken out of context. The Court is governed by various rules of construction when dealing with statutes that may or may not be ambiguous, and if and when there is an ambiguity, the role of the Court is to give effect to the viability of the statute, not to undermine it. But here, I, for one, don't see the ambiguity.
I am an attorney but I am not an immigration attorney...I did a lot of research as a favor in order to disavow a declaration for someone close to me, and note that there are a lot of misconceptions floating around here when this issue is continually raised, so I thought that the reference to the Fed Reg would be helpful.
I am an attorney but I am not an immigration attorney...I did a lot of research as a favor in order to disavow a declaration for someone close to me, and note that there are a lot of misconceptions floating around here when this issue is continually raised, so I thought that the reference to the Fed Reg would be helpful.
QUOTE(tito @ Feb 5 2008, 03:40 PM)
The Federal Register discussion is about as in-depth as anything on the subject in helping to explain the nature and extent of obligations. How the Court came to its conclusion in Stump is a mystery to me. The conclusion is simply not justified given the legislative intent, and the court played a heavy hand in interpreting things that were taken out of context. The Court is governed by various rules of construction when dealing with statutes that may or may not be ambiguous, and if and when there is an ambiguity, the role of the Court is to give effect to the viability of the statute, not to undermine it. But here, I, for one, don't see the ambiguity.
I am an attorney but I am not an immigration attorney...I did a lot of research as a favor in order to disavow a declaration for someone close to me, and note that there are a lot of misconceptions floating around here when this issue is continually raised, so I thought that the reference to the Fed Reg would be helpful.
I am an attorney but I am not an immigration attorney...I did a lot of research as a favor in order to disavow a declaration for someone close to me, and note that there are a lot of misconceptions floating around here when this issue is continually raised, so I thought that the reference to the Fed Reg would be helpful.
Excellent info Tito.
Can I get you as my attorney if my soon to be exwife decideds to sue me for the Affidavit of Support???
mystery
QUOTE(tito @ Jan 31 2008, 01:53 PM)
There are many questions that people have concerning the liability of a US Citizen under the Affidavit of Support. Some people say that the affidavit puts the USC on the hook to support the immigrant for 10 years in an amount equal to 125% of the poverty guidelines, no matter what. I don't think that the regulations require that. If the immigrant earns the minimum under the poverty guidelines, then there is no requirement (under the immigration laws, anyway) that the USC pay the immigrant anything. The way I read the statutes, the obligation arises ONLY if the immigrant isn't earning the minimum, and only in situations where "the immigrant receives any "means-tested public benefits," you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits." (DivorceNet, 11/7/06).
The DHS promulgated rules and regulations concerning affidavits of support, and here is a link to commentary regarding the rules, as published in the Federal Register:
http://a257.g.akamaitech.net/7/257/2422/01...pdf/06-5522.pdf
The focus of the affidavit of support is NOT the benefit of the immigrant, such that the immigrant can seek assistance from the sponsor regardless of circumstance; rather, the focus of the affidavit of support is the GOVERNMENT, and whether the immigrant will be a public charge. The STATE is the beneficiary, not the immigrant, and even on the form for the affidavit, it clearly states that the agreement is between the sponsor and the government, and not the immigrant. I think that is an important distinction, because it seems as if some posters here are of the view that the immigrant can get money from the sponsor as part of divorce proceedings or some other order of support, and that is simply not the case, the cases cited notwithstanding (I realize that there are cases where courts used the affidavit of support for the purposes of an award of spousal support, but that is simply not part of the actual obligation under the applicable affidavit of support. Perhaps the Court in that case or those cases used the affidavit of support as a guideline in determining what would be fair support, but there is absolutely nothing in the legislation, rules or regulations that require a sponsor to pay an immigrant anything except for the costs associated with certain social services ONLY in the event that the immigrant isn't earning the minimum, and only up to the minimum, so that, if the immigrant makes $900 a month, the liability for the social services would be only $300.)
Comments?? Please feel free...this is an important discussion in terms of the liability of sponsor, and the expectations of an immigrant, and this should all be flushed out...
The DHS promulgated rules and regulations concerning affidavits of support, and here is a link to commentary regarding the rules, as published in the Federal Register:
http://a257.g.akamaitech.net/7/257/2422/01...pdf/06-5522.pdf
The focus of the affidavit of support is NOT the benefit of the immigrant, such that the immigrant can seek assistance from the sponsor regardless of circumstance; rather, the focus of the affidavit of support is the GOVERNMENT, and whether the immigrant will be a public charge. The STATE is the beneficiary, not the immigrant, and even on the form for the affidavit, it clearly states that the agreement is between the sponsor and the government, and not the immigrant. I think that is an important distinction, because it seems as if some posters here are of the view that the immigrant can get money from the sponsor as part of divorce proceedings or some other order of support, and that is simply not the case, the cases cited notwithstanding (I realize that there are cases where courts used the affidavit of support for the purposes of an award of spousal support, but that is simply not part of the actual obligation under the applicable affidavit of support. Perhaps the Court in that case or those cases used the affidavit of support as a guideline in determining what would be fair support, but there is absolutely nothing in the legislation, rules or regulations that require a sponsor to pay an immigrant anything except for the costs associated with certain social services ONLY in the event that the immigrant isn't earning the minimum, and only up to the minimum, so that, if the immigrant makes $900 a month, the liability for the social services would be only $300.)
Comments?? Please feel free...this is an important discussion in terms of the liability of sponsor, and the expectations of an immigrant, and this should all be flushed out...
All well and fine, tito, but...the Affidavit of Support form itself requires a signature. Failure to provide a signature is articulated here--->
QUOTE
You cannot be made to sign a Form 1-864 if you do not want to do so. But if you do not sign the Form I-864, theintending immigrant may not be able to become a permanent resident in the United States.
The terms are articulated on the form I-864 as --->
QUOTE
If you sign a Form I-864 on behalf of any person (called the "intending immigrant") who is applying for an immigrant visa or for adjustment of status to a permanent resident, and that intending immigrant submits the Form I-864 to the U.S.Government with his or her application for an immigrant visa or adjustment of status, under section 213A of the Immigration and Nationality Act these actions create a contract between you and the U. S. Government. The intending immigrant's becoming a permanent resident is the "consideration" for the contract.
Under this contract, you agree that, in deciding whether the intending immigrant can establish that he or she is not inadmissible to the United States as an alien likely to become a public charge, the U.S. Government can consider your income and assets to be available for the support of the intending immigrant.
Under this contract, you agree that, in deciding whether the intending immigrant can establish that he or she is not inadmissible to the United States as an alien likely to become a public charge, the U.S. Government can consider your income and assets to be available for the support of the intending immigrant.
Consequently,the USC is agreeing that an endorsement renders the following ---->
QUOTE
What is the Legal Effect of My Signing a Form I-864?
If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed, then until your obligations under the Form I-864 terminate, your income and assets may be considered ("deemed") to be available to that person, in determining whether he or she is eligible for certain Federal means-tested public benefits and also for State or local means-tested public benefits, if the State or local government's rules provide for consideration("deeming”) of your income and assets as available to the person.
If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed, then until your obligations under the Form I-864 terminate, your income and assets may be considered ("deemed") to be available to that person, in determining whether he or she is eligible for certain Federal means-tested public benefits and also for State or local means-tested public benefits, if the State or local government's rules provide for consideration("deeming”) of your income and assets as available to the person.
What Does Signing the Form I-864 Require Me to do?
QUOTE
If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under the Form I-864 terminate, you must:
a. Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size (100 percent if you are the petitioning sponsor and areon active duty in the U.S. Armed Forces and the person is your husband, wife, unmarried child under 21 years old.)
a. Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size (100 percent if you are the petitioning sponsor and areon active duty in the U.S. Armed Forces and the person is your husband, wife, unmarried child under 21 years old.)
Note no mention of the purported requirement that this be in any way attached to the alien availaing him or herself of means tested benefits.
and further---->
QUOTE
Please note that, by signing this Form I-864, you agree to assume certain specific obligations under the Immigration and Nationality Act and other Federal laws. The following paragraphs describe those obligations. Please read the following information carefully before you sign the Form I-864. If you do not understand the obligations, you may wish to consultan attorney or accredited representative.
Here's the part that relates to repercussions of failing to fulfil the terms
QUOTE
If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864 that you signed, that person may sue you for this support.
If a Federal, State or local agency, or a private agency provides any covered means-tested public benefit to the person who becomes a permanent resident based on the Form I-864 that you signed, the agency may ask you to reimburse them (note this is a separate action and it is not an "if/or") for the amount of the benefits they provided.
If you do not make the reimbursement, the agency may sue you for the amount that the agency believes you owe.
If you are sued, and the court enters a judgment against you, the person or agency that sued you may use any legally permitted procedures for enforcing or collecting the judgment.
You may also be required to pay the costs of collection,including attorney fees.
If a Federal, State or local agency, or a private agency provides any covered means-tested public benefit to the person who becomes a permanent resident based on the Form I-864 that you signed, the agency may ask you to reimburse them (note this is a separate action and it is not an "if/or") for the amount of the benefits they provided.
If you do not make the reimbursement, the agency may sue you for the amount that the agency believes you owe.
If you are sued, and the court enters a judgment against you, the person or agency that sued you may use any legally permitted procedures for enforcing or collecting the judgment.
You may also be required to pay the costs of collection,including attorney fees.
And finally, in the endorsement section of Form I-864, the undersigned, under penalty of perjury affirms that
QUOTE
I _____________certify under penalty of perjury under the laws of the United States that:
a. I know the contents of this affidavit of support that I signed.
b. All the factual statements in this affidavit of support are true and correct.
c. I have read and I understand each of the obligations described in Part 8, and I agree, freely and without any mental reservation or purpose of evasion, to accept each of those obligations in order to make it possible for the immigrants indicated in Part 3 to become permanent residents of the United States;
d. I agree to submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against me to enforce my obligations under this Form I-864;
e. Each of the Federal income tax returns submitted in support of this affidavit are true copies, or are unaltered tax transcripts, of the tax returns I filed with the U.S. Internal Revenue Service;....
a. I know the contents of this affidavit of support that I signed.
b. All the factual statements in this affidavit of support are true and correct.
c. I have read and I understand each of the obligations described in Part 8, and I agree, freely and without any mental reservation or purpose of evasion, to accept each of those obligations in order to make it possible for the immigrants indicated in Part 3 to become permanent residents of the United States;
d. I agree to submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against me to enforce my obligations under this Form I-864;
e. Each of the Federal income tax returns submitted in support of this affidavit are true copies, or are unaltered tax transcripts, of the tax returns I filed with the U.S. Internal Revenue Service;....
I think in view of the above, the opportunity for the immigrant to seek remedy does exist.
The commentary and commentators and judicial analysts interpret the statutes the way they do. The Federal Register is quite illuminating with respect to the nature and extent of the declaration of support, and how to disavow it, and what it means down the stretch. The language of the 864 is subject to interpretation, as is obviously noted by legal commentators dealing with the issue, and I still do not believe that the court in Stump was correct. Stump does not settle anything, in my view. It only raises more questions.
See? This is an exchange of ideas regarding OPINION about the meaning of something that occurs in the world. The thing in the world that is relatively certain is the declaration of support; the thing in dispute is the nature and extent of obligations under it, which is subject to differing opinions.
See? This is an exchange of ideas regarding OPINION about the meaning of something that occurs in the world. The thing in the world that is relatively certain is the declaration of support; the thing in dispute is the nature and extent of obligations under it, which is subject to differing opinions.
QUOTE(tito @ Feb 5 2008, 11:36 PM)
The commentary and commentators and judicial analysts interpret the statutes the way they do. The Federal Register is quite illuminating with respect to the nature and extent of the declaration of support, and how to disavow it, and what it means down the stretch. The language of the 864 is subject to interpretation, as is obviously noted by legal commentators dealing with the issue, and I still do not believe that the court in Stump was correct. Stump does not settle anything, in my view. It only raises more questions.
See? This is an exchange of ideas regarding OPINION about the meaning of something that occurs in the world. The thing in the world that is relatively certain is the declaration of support; the thing in dispute is the nature and extent of obligations under it, which is subject to differing opinions.
See? This is an exchange of ideas regarding OPINION about the meaning of something that occurs in the world. The thing in the world that is relatively certain is the declaration of support; the thing in dispute is the nature and extent of obligations under it, which is subject to differing opinions.
QUOTE
Section 213A(a)(1)(
of the Act
expressly says the sponsored immigrant
must be able to seek to enforce the
affidavit of support. Congress clearly
intended to permit the sponsored
immigrant to sue to enforce the support
obligation, if necessary.
of the Actexpressly says the sponsored immigrant
must be able to seek to enforce the
affidavit of support. Congress clearly
intended to permit the sponsored
immigrant to sue to enforce the support
obligation, if necessary.
Silly question, but.....
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
QUOTE(mawilson @ Feb 6 2008, 09:29 AM)
Silly question, but.....
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
The fact that it was required for the particular visa the immigrant entered on is pretty strong proof of its existence. The revelation of the document would be made by the immigrant (and their attorneys). It can also probably be subpoenaed. IANAL (frontal lobe and soul still securely in place) but I'm sure there are all kinds of arcane and dark magickal ways attorneys have of making it surface.
QUOTE(diadromous mermaid @ Feb 6 2008, 12:10 PM)
QUOTE
Section 213A(a)(1)( of the Act
expressly says the sponsored immigrant
must be able to seek to enforce the
affidavit of support. Congress clearly
intended to permit the sponsored
immigrant to sue to enforce the support
obligation, if necessary.
of the Actexpressly says the sponsored immigrant
must be able to seek to enforce the
affidavit of support. Congress clearly
intended to permit the sponsored
immigrant to sue to enforce the support
obligation, if necessary.
Here's where the court got TOO active...the issue is WHAT support obligation? The answer is...MEANS-TESTED BENEFITS! The court in Stump read too much into it, and it is subject to such an interpretation (given that you also interpret the language that way). But...that is an overly expansive way of interpreting the regulation. Stump can and will be challenged. The sponsor is on the hook to support the immigrant...but that's not the end...FOR MEANS-TESTED BENEFITS, which is the overall and general subject of the affidavit of support. See how that works? That is appropriate legislative analysis...not to EXPAND the statute, but to limit its meaning. There is where the court erred.
That's my analysis, anyway, and I am confident in its application.
"Isn't this whole Affidavit business a load of bollocks anyway?"
You could say that, but it is a big cloud hovering over the citizen. The agency providing "means-tested" public benefits (that involve mandatory, not discretionary, funding) takes down the immigrant's information, visa number, passport, and other information like that, and if there's a way to grab onto someone to reimburse the government, it'll come back and bite the citizen more times than not. Plus, as in the Stump case, the immigrant paraded it around as a basis for an award.
ASIDE FOR MOX: If you read the Stump case...I'll give you THREE guesses as to where the wife was from...and the first 2 don't count. Her name was OLGA.
QUOTE(tito @ Feb 6 2008, 12:36 PM)
ASIDE FOR MOX: If you read the Stump case...I'll give you THREE guesses as to where the wife was from...and the first 2 don't count. Her name was OLGA.
Thank you Tito. You've saved me years of heartache and thousands of dollars. It's midnight in Russia, but I just called my girl to tell her it's off. I told her I was on to her little greencard thieving ways, and that Tito had lifted the blinders that had heretofore been covering my eyes. At the mention of the name "Tito" I'd have thought I was talking to Golum. She completely changed into the horrible monster she really is. All she could say was "You win this time Tito, but I'll be back!"
ASIDE BACK TO THE MAIN TOPIC, i.e. "you are wrong and mermaid has wiped the floor with your ego," honestly I'm amused that even when the evidence is completely against you, you can't admit that you're wrong. I know if I were looking for a lawyer I'd choose the one that says "well the law says this, and precedence agrees, but I'm going to advise you against it anyway." Seriously, never change.
RIGHT ON!!!!!!!111!!!!!! 
QUOTE(mox @ Feb 6 2008, 08:58 PM)
Thank you Tito. You've saved me years of heartache and thousands of dollars. It's midnight in Russia, but I just called my girl to tell her it's off. I told her I was on to her little greencard thieving ways, and that Tito had lifted the blinders that had heretofore been covering my eyes. At the mention of the name "Tito" I'd have thought I was talking to Golum. She completely changed into the horrible monster she really is. All she could say was "You win this time Tito, but I'll be back!"
ASIDE BACK TO THE MAIN TOPIC, i.e. "you are wrong and mermaid has wiped the floor with your ego," honestly I'm amused that even when the evidence is completely against you, you can't admit that you're wrong. I know if I were looking for a lawyer I'd choose the one that says "well the law says this, and precedence agrees, but I'm going to advise you against it anyway." Seriously, never change.
ASIDE BACK TO THE MAIN TOPIC, i.e. "you are wrong and mermaid has wiped the floor with your ego," honestly I'm amused that even when the evidence is completely against you, you can't admit that you're wrong. I know if I were looking for a lawyer I'd choose the one that says "well the law says this, and precedence agrees, but I'm going to advise you against it anyway." Seriously, never change.
QUOTE(tito @ Feb 6 2008, 03:36 PM)
QUOTE(diadromous mermaid @ Feb 6 2008, 12:10 PM)
QUOTE
Section 213A(a)(1)( of the Act
expressly says the sponsored immigrant
must be able to seek to enforce the
affidavit of support. Congress clearly
intended to permit the sponsored
immigrant to sue to enforce the support
obligation, if necessary.
of the Actexpressly says the sponsored immigrant
must be able to seek to enforce the
affidavit of support. Congress clearly
intended to permit the sponsored
immigrant to sue to enforce the support
obligation, if necessary.
Here's where the court got TOO active...the issue is WHAT support obligation? The answer is...MEANS-TESTED BENEFITS!
That's my analysis, anyway, and I am confident in its application.
How is it that you interpret the "support obligation" to only incluide means-tested benefits, when the Affidavist of Support document itself, suggests that the signator must
QUOTE
If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under the Form I-864 terminate, you must:
a. Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size (100 percent if you are the petitioning sponsor and areon active duty in the U.S. Armed Forces and the person is your husband, wife, unmarried child under 21 years old.)
a. Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size (100 percent if you are the petitioning sponsor and areon active duty in the U.S. Armed Forces and the person is your husband, wife, unmarried child under 21 years old.)
Sorry, but I just don't see how you are overlooking both the language on the form, and the INA
QUOTE(mox @ Feb 6 2008, 02:01 PM)
QUOTE(mawilson @ Feb 6 2008, 09:29 AM)
Silly question, but.....
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
The fact that it was required for the particular visa the immigrant entered on is pretty strong proof of its existence. The revelation of the document would be made by the immigrant (and their attorneys). It can also probably be subpoenaed. IANAL (frontal lobe and soul still securely in place) but I'm sure there are all kinds of arcane and dark magickal ways attorneys have of making it surface.
Clearly, the immigrant can use the Affidavit to sue their sponsor for support.
But why would the immigrant want their sponsor to repay the cost of means-tested
benefits to the government?
If the immigrant receives the assistance, and the agency comes after them, they can, in turn, go after the sponsor for support. That is the extent of the obligation. It's not a free for all...that's not what the government requires. ONLY that the sponsor pick up the tab so that the immigrant is not a public charge. That's the focus according to what the commentators say in the Federal Register.
All the other fluff goes too far, even the Stump case. An immigrant who wants money and can hire a lawyer is a very dangerous weapon indeed. But there are parametes to the affidavit of support...despite the ambiguity and despite how one court ruled...and that's what IS clear.
All the other fluff goes too far, even the Stump case. An immigrant who wants money and can hire a lawyer is a very dangerous weapon indeed. But there are parametes to the affidavit of support...despite the ambiguity and despite how one court ruled...and that's what IS clear.
In light of the gratuitous commentary...the analysis is as misguided as the conclusions in the Stump case are ill-conceived.
Nobody should even joke about giving up their dreams. The point was made to illustrate just how prevalent are the problems concerning these issues when it comes to immigrants from certain parts of the world.
The question is: what is a public charge? If taxpayers start picking up the tab for means tested benefits received. This should NOT mean that the immigration service says, "welcome to America - here's your green card, and you can count on a couple grand a month from your sponsor if things don't work out with your marriage." That's what the court in Stump suggests is the case, and why the result and rationale is so baseless.
Nobody should even joke about giving up their dreams. The point was made to illustrate just how prevalent are the problems concerning these issues when it comes to immigrants from certain parts of the world.
The question is: what is a public charge? If taxpayers start picking up the tab for means tested benefits received. This should NOT mean that the immigration service says, "welcome to America - here's your green card, and you can count on a couple grand a month from your sponsor if things don't work out with your marriage." That's what the court in Stump suggests is the case, and why the result and rationale is so baseless.
QUOTE(tito @ Feb 6 2008, 06:48 PM)
Nobody should even joke about giving up their dreams. The point was made to illustrate just how prevalent are the problems concerning these issues when it comes to immigrants from certain parts of the world.
Right. The making up of stories about other people's relationships should be left to experts like you.
I'm fully aware of the "issues" faced with "immigrants from certain parts of the world." In fact, I'm willing to bet I'm a lot more familiar with it than you are. Which is why you might be interested in knowing that the divorce rate amongst Russian/American couples is almost exactly the same as the national divorce rate. (No I don't have a source, I'm a baaaaad bookmarker. But I've never seen you cite a source either, so let's move on.) So while yes there are scammers from that "certain part of the world," it's not near as bad as the paranoic crap you try to scare everyone into believing.
QUOTE
The question is: what is a public charge? If taxpayers start picking up the tab for means tested benefits received. This should NOT mean that the immigration service says, "welcome to America - here's your green card, and you can count on a couple grand a month from your sponsor if things don't work out with your marriage." That's what the court in Stump suggests is the case, and why the result and rationale is so baseless.
Say it with me now: IN YOUR OPINION. (I capitalized it like you like because...you know...I care.)
See, the IN YOUR OPINION part is important. Because otherwise it sounds like you're advising people to break the law. (that would be a violation of the TOS btw.) This is what makes people like you so dangerous. You cloak personal opinion in the guise of fact. It's fine that your experience gives you so much insight into these things, and hey I actually agree with your OPINION in this matter. (and don't think the other tito baiters aren't going to give me crap about that, tyvm) But you need to start clarifying where reality leaves off and your OPINION takes over. Otherwise you do a disservice to everyone except your own ego.
Anyway, as I said, don't change. I'm actually learning a lot from the other people who have to come in and explain to you what you should already know. Kudos for that.
You're ignoring the reality, but you go right ahead and save the world.
The nature and extent of the obligations under a declaration of support are set forth in the Federal Register, and a discussion was invited on the subject. As flattered as I am to have a fan like Mox, please cry 'wolf' another place. Good luck getting your fiancee here ASAP. Something is needed for the stress...
The nature and extent of the obligations under a declaration of support are set forth in the Federal Register, and a discussion was invited on the subject. As flattered as I am to have a fan like Mox, please cry 'wolf' another place. Good luck getting your fiancee here ASAP. Something is needed for the stress...
QUOTE(tito @ Feb 6 2008, 07:43 PM)
You're ignoring the reality, but you go right ahead and save the world.
Anyone who's ever saved the world has ignored the reality.
QUOTE
The nature and extent of the obligations under a declaration of support are set forth in the Federal Register, and a discussion was invited on the subject.
And you should discuss. Discuss, DISCUSS! Don't let me stop you from sharing your OPINION.
QUOTE
As flattered as I am to have a fan like Mox, please cry 'wolf' another place. Good luck getting your fiancee here ASAP. Something is needed for the stress...
You can't kick me out. You made me king of the sandbox, remember?
Thanks for the well wishes.
QUOTE(mox @ Feb 7 2008, 03:29 AM)
Say it with me now: IN YOUR OPINION. (I capitalized it like you like because...you know...I care.)
See, the IN YOUR OPINION part is important. Because otherwise it sounds like you're advising people to break the law. (that would be a violation of the TOS btw.) This is what makes people like you so dangerous. You cloak personal opinion in the guise of fact. It's fine that your experience gives you so much insight into these things, and hey I actually agree with your OPINION in this matter. (and don't think the other tito baiters aren't going to give me crap about that, tyvm) But you need to start clarifying where reality leaves off and your OPINION takes over. Otherwise you do a disservice to everyone except your own ego.
See, the IN YOUR OPINION part is important. Because otherwise it sounds like you're advising people to break the law. (that would be a violation of the TOS btw.) This is what makes people like you so dangerous. You cloak personal opinion in the guise of fact. It's fine that your experience gives you so much insight into these things, and hey I actually agree with your OPINION in this matter. (and don't think the other tito baiters aren't going to give me crap about that, tyvm) But you need to start clarifying where reality leaves off and your OPINION takes over. Otherwise you do a disservice to everyone except your own ego.
*applause*
even though tito will, if past experience is anything to go by, still read the above as saying 'we think you don't know anything and marriage fraud never occurs with Russian women and we are challenging the content of your remarks', you have got the heart of the issue as well as anyone ever has, mox
(bolding mine for bits I especially agree with)
I fail to see the problem here - there's no advice to break any law. The issue, once again to be narrowed for the purposes of discussion, is the nature and extent of the obligation on the part of a sponsor under a declaration of support. Why things seem to go sideways when a few posters choose to make this a personal issue is beyond me. Then again, I fail to see how some people with so much optimism and hope for their own relationship follow so closely and with such vigor the threads about the unfortunate and devastating circumstances of others. Quite revealing, actually.
Carry on...
Carry on...
QUOTE(tito @ Feb 6 2008, 11:32 PM)
I fail to see the problem here - there's no advice to break any law.
Never said there was. I said "it sounds like..." In other words, when you explain OPINION as FACT then it makes it sound like you are saying something that isn't what you're really saying. Now I have my own thoughts on whether this is intentional or not, but for argument's sake I'll just say that because you won't make a distinction between fact and opinion you are muddling your own message.
QUOTE
The issue, once again to be narrowed for the purposes of discussion, is the nature and extent of the obligation on the part of a sponsor under a declaration of support.
Cool. As I've already said, I actually agree with your OPINION. I think the ruling was bogus too. And if you would simply make the distinction I'd be all like "wooowoooo!!! Go tito! Go tito! Go tito!" And then I'd make like a fist pumping motion and shake my thang. Sorta like the other tito minions but I think I'd be cooler. Because of the fist pumping thing. None of your other minions do that.
QUOTE
Then again, I fail to see how some people with so much optimism and hope for their own relationship follow so closely and with such vigor the threads about the unfortunate and devastating circumstances of others.
I know. It must be very difficult for you. You seem to have a difficult time handling separate but related concepts.
QUOTE
Quite revealing, actually.
I like to think of you saying that in a British accent. With a monocle. Can I call you "Colonel?"
QUOTE
Carry on...
Will do. I'll keep saying this too: you have a lot of helpful knowledge that would be extremely useful to a lot of people. But you are completely unfocused (FACT vs OPIONION) and seemingly unwilling to actually engage in any productive manner. I say "seemingly" because maybe it's just that you don't understand what you're doing. For example, maybe you really do think I'm just "attacking" you because I don't agree with your viewpoint. But hopefully you'll come around and actually start being helpful and then I can do my "woowoo'ing!" and my arm pumping.
QUOTE(tito @ Feb 6 2008, 09:48 PM)
In light of the gratuitous commentary...the analysis is as misguided as the conclusions in the Stump case are ill-conceived.
Nobody should even joke about giving up their dreams. The point was made to illustrate just how prevalent are the problems concerning these issues when it comes to immigrants from certain parts of the world.
The question is: what is a public charge? If taxpayers start picking up the tab for means tested benefits received. This should NOT mean that the immigration service says, "welcome to America - here's your green card, and you can count on a couple grand a month from your sponsor if things don't work out with your marriage." That's what the court in Stump suggests is the case, and why the result and rationale is so baseless.
Nobody should even joke about giving up their dreams. The point was made to illustrate just how prevalent are the problems concerning these issues when it comes to immigrants from certain parts of the world.
The question is: what is a public charge? If taxpayers start picking up the tab for means tested benefits received. This should NOT mean that the immigration service says, "welcome to America - here's your green card, and you can count on a couple grand a month from your sponsor if things don't work out with your marriage." That's what the court in Stump suggests is the case, and why the result and rationale is so baseless.
As far as determining the scope of obligation that the USC undertakes by endorsing the Affidavit of Support one cannot simple make constant reference to the commentary in the Federal Register. That is not viewing the matter in totality, in my opinion.
Since an alien (save for a handful of exceptions) is statutorily barred from receiving means-tested benefits for a period of 5 years, anyway, of what value would the Affidavit be to USCIS, certainly at this the AOS stage, if it were only an enforceable tool to recover benefits related to federal means? Why not institute that Affidavit at a later stage when it becomes more germane?
Furthermore, with sponsor deeming, what alien would qualify for means tested benefits if his or her income were to be inflated by his or her US citizen sponsor? Unless that sponsor had fallen into an impoverished state, and therefore any recovery attempt by the agency for benefits the alien would secure would naturally be thwarted.
In order to trully understand what is intended to be the scope of support to which the Affidavit binds the petitioner, I believe it would be shortsighted to not bear in mind these other issues.
QUOTE(mawilson @ Feb 6 2008, 12:29 PM)
Silly question, but.....
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Subpeona, anyone?
QUOTE(diadromous mermaid @ Feb 7 2008, 08:44 AM)
QUOTE(tito @ Feb 6 2008, 09:48 PM)
In light of the gratuitous commentary...the analysis is as misguided as the conclusions in the Stump case are ill-conceived.
Nobody should even joke about giving up their dreams. The point was made to illustrate just how prevalent are the problems concerning these issues when it comes to immigrants from certain parts of the world.
The question is: what is a public charge? If taxpayers start picking up the tab for means tested benefits received. This should NOT mean that the immigration service says, "welcome to America - here's your green card, and you can count on a couple grand a month from your sponsor if things don't work out with your marriage." That's what the court in Stump suggests is the case, and why the result and rationale is so baseless.
Nobody should even joke about giving up their dreams. The point was made to illustrate just how prevalent are the problems concerning these issues when it comes to immigrants from certain parts of the world.
The question is: what is a public charge? If taxpayers start picking up the tab for means tested benefits received. This should NOT mean that the immigration service says, "welcome to America - here's your green card, and you can count on a couple grand a month from your sponsor if things don't work out with your marriage." That's what the court in Stump suggests is the case, and why the result and rationale is so baseless.
As far as determining the scope of obligation that the USC undertakes by endorsing the Affidavit of Support one cannot simple make constant reference to the commentary in the Federal Register. That is not viewing the matter in totality, in my opinion.
Since an alien (save for a handful of exceptions) is statutorily barred from receiving means-tested benefits for a period of 5 years, anyway, of what value would the Affidavit be to USCIS, certainly at this the AOS stage, if it were only an enforceable tool to recover benefits related to federal means? Why not institute that Affidavit at a later stage when it becomes more germane?
Furthermore, with sponsor deeming, what alien would qualify for means tested benefits if his or her income were to be inflated by his or her US citizen sponsor? Unless that sponsor had fallen into an impoverished state, and therefore any recovery attempt by the agency for benefits the alien would secure would naturally be thwarted.
In order to trully understand what is intended to be the scope of support to which the Affidavit binds the petitioner, I believe it would be shortsighted to not bear in mind these other issues.
Not only shortsighted but, given Post #5, it seems to also indicate a complete 'black-out' on Tito's part during Contractual Law 101.
But then again, we see this from time to time on VJ. A practitioner of law thinking they can easily step into the arena of immigration law simply by virtue of the JD hanging on their wall.
No doubt the same attorneys we read reports about who took a clients' fee to process a visa petition and then royally screwed it up.
No - because the contact has the immigrant, at best, as an indirect 3rd party beneficiary. The government can contract on its own behalf for what may be its exposure, but the creation of rights on behalf of other parties is a stretch.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
No - not so fast, Rebecca...because the contact has the immigrant, at best, as an indirect 3rd party beneficiary. The government can contract on its own behalf for what may be its exposure, but the creation of rights on behalf of other parties is a stretch. I don't claim to be an expert in immigration law by any stretch of the imagination - however, I am confident that my statutory analysis is correct, as is my analysis of the role of a court in its interpretation. I invited a discussion, and I provided commentary that reflect confusion and an attempt on the part of immigration services to clarify to support my conclusion. Please read it and then comment on the subject matter, don't simply swim around and come to short sighted conclusions as to either me or the result.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
QUOTE(tito @ Feb 7 2008, 10:28 AM)
No - because the contact has the immigrant, at best, as an indirect 3rd party beneficiary. The government can contract on its own behalf for what may be its exposure, but the creation of rights on behalf of other parties is a stretch.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
Which is what case law is for.
QUOTE(tito @ Feb 7 2008, 07:34 AM)
No - not so fast, Rebecca...because the contact has the immigrant, at best, as an indirect 3rd party beneficiary. The government can contract on its own behalf for what may be its exposure, but the creation of rights on behalf of other parties is a stretch. I don't claim to be an expert in immigration law by any stretch of the imagination - however, I am confident that my statutory analysis is correct, as is my analysis of the role of a court in its interpretation. I invited a discussion, and I provided commentary that reflect confusion and an attempt on the part of immigration services to clarify to support my conclusion. Please read it and then comment on the subject matter, don't simply swim around and come to short sighted conclusions as to either me or the result.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
Yet, the sponsor in "Stump" is paying, right? I don't agree with the Stump decision either but I'm not the judge.
Sure. It costs less to pay than to appeal. The result, however, is inconsistent with the manner in which immigration services view the issue, so it remains an open question, yes, subject to interpretation as the issue is litigated. But by no means is the issue settled, which is the formidable issue facing those of us signing on the dotted line. Just what IS the nature of the obligation? What ARE we agreeing to pay?
QUOTE(tito @ Feb 7 2008, 11:15 AM)
Sure. It costs less to pay than to appeal. The result, however, is inconsistent with the manner in which immigration services view the issue, so it remains an open question, yes, subject to interpretation as the issue is litigated. But by no means is the issue settled, which is the formidable issue facing those of us signing on the dotted line. Just what IS the nature of the obligation? What ARE we agreeing to pay?
The wheels of justice grind slow but they grind fine.
You have the Federal Register defining the use of the affidavit.
Then you have language on the affidavit itself that implies other issues. Now I'm gonna go out on a wee limb here and hedge a guess that a US Attorney wrote the affidavit - maybe a committee of them. If they 'goofed' in their wordsmithing and overembellished the published directives, then where is the error? Overzealous grammer?
In Stump, the ruling apparently holds that what the sponsor signed takes precedence over the law underpining it. "Let the Buyer Beware".
Undoubtedly there will be other suits and other opinions. It may take time for the issue to sort itself, but it shall be sorted.
Given all the facts we know to date, I don't think anyone can conclude what we are agreeing to pay.
QUOTE(rebeccajo @ Feb 7 2008, 08:44 AM)
QUOTE(tito @ Feb 7 2008, 11:15 AM)
Sure. It costs less to pay than to appeal. The result, however, is inconsistent with the manner in which immigration services view the issue, so it remains an open question, yes, subject to interpretation as the issue is litigated. But by no means is the issue settled, which is the formidable issue facing those of us signing on the dotted line. Just what IS the nature of the obligation? What ARE we agreeing to pay?
The wheels of justice grind slow but they grind fine.
You have the Federal Register defining the use of the affidavit.
Then you have language on the affidavit itself that implies other issues. Now I'm gonna go out on a wee limb here and hedge a guess that a US Attorney wrote the affidavit - maybe a committee of them. If they 'goofed' in their wordsmithing and overembellished the published directives, then where is the error? Overzealous grammer?
In Stump, the ruling apparently holds that what the sponsor signed takes precedence over the law underpining it. "Let the Buyer Beware".
Undoubtedly there will be other suits and other opinions. It may take time for the issue to sort itself, but it shall be sorted.
Given all the facts we know to date, I don't think anyone can conclude what we are agreeing to pay.
Or, we may interpret what we are "agreeing to pay" quite differently than the judge "ordering" us to pay. Signing the affidavit exposes us to both.
In legal terms, then, the conclusion would be, "sh*t". It's still an open issue, in my view...the court in Stump notwithstanding.
"If they 'goofed' in their wordsmithing and overembellished the published directives, then where is the error? Overzealous grammer?"
They often do, but the problem I see is the zeal on the part of the court to interpret the issues to expand the liability on the part of the sponsor, rather than to interpret the ambiguity narrowly as the principles of statutory construction would otherwise require it to do. It's amazing, though, that, after so much care seemingly was taken to advise the sponsor of what exactly would be the extent of the obligations, the language is all over the place. THAT'S why they raised the fees for immigration applications!
"If they 'goofed' in their wordsmithing and overembellished the published directives, then where is the error? Overzealous grammer?"
They often do, but the problem I see is the zeal on the part of the court to interpret the issues to expand the liability on the part of the sponsor, rather than to interpret the ambiguity narrowly as the principles of statutory construction would otherwise require it to do. It's amazing, though, that, after so much care seemingly was taken to advise the sponsor of what exactly would be the extent of the obligations, the language is all over the place. THAT'S why they raised the fees for immigration applications!
QUOTE(tito @ Feb 7 2008, 12:56 PM)
In legal terms, then, the conclusion would be, "sh*t". It's still an open issue, in my view...the court in Stump notwithstanding.
"If they 'goofed' in their wordsmithing and overembellished the published directives, then where is the error? Overzealous grammer?"
They often do, but the problem I see is the zeal on the part of the court to interpret the issues to expand the liability on the part of the sponsor, rather than to interpret the ambiguity narrowly as the principles of statutory construction would otherwise require it to do. It's amazing, though, that, after so much care seemingly was taken to advise the sponsor of what exactly would be the extent of the obligations, the language is all over the place. THAT'S why they raised the fees for immigration applications!
"If they 'goofed' in their wordsmithing and overembellished the published directives, then where is the error? Overzealous grammer?"
They often do, but the problem I see is the zeal on the part of the court to interpret the issues to expand the liability on the part of the sponsor, rather than to interpret the ambiguity narrowly as the principles of statutory construction would otherwise require it to do. It's amazing, though, that, after so much care seemingly was taken to advise the sponsor of what exactly would be the extent of the obligations, the language is all over the place. THAT'S why they raised the fees for immigration applications!
Well, that's why I pointed out who probably wrote the affidavit. Either there was error, or those individuals who wrote the affidavit (being more fully versed in immigration law than any of us) wrote it in such a manner so it was abundantly clear what the exact implications were.
If the court was overzealous, this wouldn't be the first time. But when faced with the plain language to the sponsor on the face of the affidavit itself, I don't particularly see zealotry.
As an aside, I don't see how this has anything to do with fee increases. An understaffed paper-based system has more to do with that than the salaries paid US Attorneys (which are probably coming from a completely different 'pot' anyway).
QUOTE(tito @ Feb 7 2008, 10:28 AM)
No - because the contact has the immigrant, at best, as an indirect 3rd party beneficiary. The government can contract on its own behalf for what may be its exposure, but the creation of rights on behalf of other parties is a stretch.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
Indeed, the prospect of other issues does arise. But given the legislative intent (that the immigrant not be a public charge, i.e., that the State can seek reimbursement for certain benefits it must provide vis-a-vis means tested public benefits...), it seems to me, as I state from the get-go in connection with any discussion here, that the conclusion reached by the Stump court is incorrect. The Court expanded language that should have been contracted.
But you seem to still be dodging my specific questions...which were that if the only element involved is means-tested benfits, of what value does the Affidavit serve at the AOS stage, if the alien in not entitled to secure means-tested benefits until he or she has been in the USA 5 years?
Isn't the 5 year period limited to housing assistance? Whereas there is no time restriction for programs such as SSI, FoodStamps... In fact, it's been said that, since funding for federal housing assistance is NOT mandatory, but discretionary, a question arises as if those benefits qualify as 'means tested'. Certainly, TANF would be available without any waiting period...
The ambiguity seems to come from the way in which the legislation and rules were promulgated. But that doesn't affect my point, unless you say that the 5 year period is for ALL assistance, which I do not believe to be the case. If so, then I'll look into it, but again, I don't think that's the case.
The ambiguity seems to come from the way in which the legislation and rules were promulgated. But that doesn't affect my point, unless you say that the 5 year period is for ALL assistance, which I do not believe to be the case. If so, then I'll look into it, but again, I don't think that's the case.
QUOTE(tito @ Feb 7 2008, 04:04 PM)
Isn't the 5 year period limited to housing assistance? Whereas there is no time restriction for programs such as SSI, FoodStamps... In fact, it's been said that, since funding for federal housing assistance is NOT mandatory, but discretionary, a question arises as if those benefits qualify as 'means tested'. Certainly, TANF would be available without any waiting period...
The ambiguity seems to come from the way in which the legislation and rules were promulgated. But that doesn't affect my point, unless you say that the 5 year period is for ALL assistance, which I do not believe to be the case. If so, then I'll look into it, but again, I don't think that's the case.
The ambiguity seems to come from the way in which the legislation and rules were promulgated. But that doesn't affect my point, unless you say that the 5 year period is for ALL assistance, which I do not believe to be the case. If so, then I'll look into it, but again, I don't think that's the case.
Hmmm. Well, unless there's been a change in the interim, as far as I am aware...
Qualified aliens include Lawful Permanent Residents (LPRs), refugees and asylees, persons paroled into the country for at least one year, persons granted withholding of deportation, Cuban-Haitian entrants, Asian Americans, and certain battered women and children. Any alien not included in one of these categories is considered "not qualified."
"Qualified" immigrants entering the U.S. on or after 8/22/96 are:
Barred from Supplemental Security Income (SSI).
Subject to a 5-year bar on non-emergency Medicaid, the state Child Health Insurance Program (CHIP), food stamps, and Temporary Assistance for Needy Families (TANF).
There is no bar to food stamps for qualified immigrant children or disabled qualified immigrants who also receive a disability benefit.
After the 5-year bar, aliens are further subject to deeming for the above-listed programs.
After the 5-year bar, each state determines whether or not an individual is eligible for TANF, Medicaid, and social services block grants (Title XX).
Section 403 (a) of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) (PL 104-193) sets a five year residency requirement for qualified aliens who enter the United States on or after August 22, 1996 and who make application for Federal means- tested programs. Section 403©(2)
of PRWORA lists those programs that are exempted from section 403(a) to include titles IV-B and IV-E, under certain circumstances; however, title XIX is not on the list of programs exempted from section 403(a) of PRWORA. Title IV-E eligible children are categorically eligible for Medicaid. Must qualified alien children who are eligible for title IV-E meet the five year residency requirement to be eligible for title XIX
QUOTE(rebeccajo @ Feb 7 2008, 09:07 AM)
QUOTE(mawilson @ Feb 6 2008, 12:29 PM)
Silly question, but.....
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Subpeona, anyone?
You need to know what to subpoena, or indeed that the person claiming benefits is
a legal immigrant, and that he has a sponsor.
Well, now I'm even more thoroughly confused than ever. No wonder the Stump court screwed the pooch so badly! I'm still going with the 'reimbursement for expenses associated with means-tested public benefits' as the parameter for the liability of the sponsor. I'd argue that through any appeal process, based, and this going back to my initial thought, on the proposition that the legislative intent was such that the breadth of the sponsor's pledge is to ensure that the immigrant doesn't end up as a public charge when it comes to certain benefits, and the declaration does not create a vested right to get money from the sponsor whatever the reason (the superfluous language notwithstanding).
Anything more than that, and I gotta go read the Federal Register again, and I really don't want to do that!!!! Maybe we can put mox on the task of having a memo analyzing the Federal Register...
Anything more than that, and I gotta go read the Federal Register again, and I really don't want to do that!!!! Maybe we can put mox on the task of having a memo analyzing the Federal Register...
QUOTE(tito @ Feb 7 2008, 03:28 PM)
Maybe we can put mox on the task of having a memo analyzing the Federal Register...
My dear Colonel, the King of Sandboxonia does not having such menial tasks thrust upon his royal shoulders. His Majesty does, however, positively beam with pride at the Colonel's recent use of such phrases as "in my view," and also the very positive interaction betwixt the Colonel's VJ peers. We look upon these developments most favourably.
QUOTE(tito @ Feb 7 2008, 06:28 PM)
Well, now I'm even more thoroughly confused than ever. No wonder the Stump court screwed the pooch so badly! I'm still going with the 'reimbursement for expenses associated with means-tested public benefits' as the parameter for the liability of the sponsor. I'd argue that through any appeal process, based, and this going back to my initial thought, on the proposition that the legislative intent was such that the breadth of the sponsor's pledge is to ensure that the immigrant doesn't end up as a public charge when it comes to certain benefits, and the declaration does not create a vested right to get money from the sponsor whatever the reason (the superfluous language notwithstanding).
Anything more than that, and I gotta go read the Federal Register again, and I really don't want to do that!!!! Maybe we can put mox on the task of having a memo analyzing the Federal Register...
Anything more than that, and I gotta go read the Federal Register again, and I really don't want to do that!!!! Maybe we can put mox on the task of having a memo analyzing the Federal Register...
Has anyone given though to the possibility of the following scenario.....in a nutshell?
The Affidavit of Support was changed from the non-binding I-134 to a legally enforceable I-864 for family-based permanent resident/ adjustment of status applications for a reason, or reasons?. We're all likely to think, initially, that the binding nature of the Affidavit is to make certain that any agency that were to offer an ineligible alien means-tested benefits, would not have to cough up the funds to do so, and would have an individual (the sponsor) to go after to underwrite those costs. But in point of fact, even though the right is preserved in the INA for an agency to do that, it is very rarely done.
Is it rare that the agency seeks reimbursement, even though the right is so preserved in the Affidavit? or is it that reimbursement is so rarely sought, because benefits aren't that easy to secure, for the ineligible alien?
Bear in mind that the sponsor is also bound by the I-864. Bound to the obligation he or she has made with the USCIS that the alien will not become a public charge. Bound, that is, to provide at minimum 125% of the poverty guideline figure.
Well, if a "qualified" alien cannot secure means-tested benefits for a period of 5 years, what is a government agency going to give the alien? He or she isn't eligible. And to make matters even more profound, after 5 years, the alien's income considered by an agency when benefits are applied for is that of his or her sponsor. So if the sponsor makes above the threshhold for assistance, the alien gets nowt! So there's less need for an agency to seek out reimbursement from a sponsor for benefits paid to an alien, because, guess what...save for a few rare instances, chances are the benefits are only rarely awarded.
However, if one thinks through that situation, what happens to an alien that needs that assistance?
Well, if he or she were in a viable marriage but the income is too low to self-sustain, then they seek benefits...and the government, by virtue of the extant Affidavit of Support, has the opportunity within the ensuing 10 years of getting that money back from the sponsor. All poverty aside, that is, But I believe that the language on the Affidavit of Support that refers to the sponsor being responsible for providing support goes beyond the means-tested issue to cover the occasion, or the case of an alien (in the cases of divorce) where the sponsor's income is deemed to the alien, yet the alien is not a member of the sponsor's household and so, in order to be able to keep the wolf from the door, the Affidavit leaves a door open for the alien to have the sponsor to lean on, when all else fails.
QUOTE(mawilson @ Feb 7 2008, 05:24 PM)
QUOTE(rebeccajo @ Feb 7 2008, 09:07 AM)
QUOTE(mawilson @ Feb 6 2008, 12:29 PM)
Silly question, but.....
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Isn't this whole Affidavit business a load of bollocks anyway?
The Affidavit makes you (in theory) responsible for repaying the cost of any "means-tested
public benefits", but no-one (except USCIS) knows the Affidavit even exists, and the USCIS
keep it securely locked in a vault (or a dusty file cabinet.)
So even if an immigrant goes and claims all of sorts of benefits, who would know that there's
an Affidavit of Support out there somewhere and who's going to enforce it? It's not like
the IRS, SSA and USCIS all use the same computer system.
Subpeona, anyone?
You need to know what to subpoena, or indeed that the person claiming benefits is
a legal immigrant, and that he has a sponsor.
That would all be revealed during the discovery phase, if litigation were indeed filed.
If the agency themself is unaware, that may explain why the affidavit is rarely enforced. The agencies don't realize they have a means to recover.
That's a scary scenario...but when I talk to colleagues about the effect of the declaration of support, they are universally of the view that it doesn't mean squat unless the alien is destitute and on the street. And this ought to be a bee in someone's bonnet, but that's where the lawyers in the network of Russian brides are so effective...it's all set up in advance...the shelter, the social worker, everything. THEN Olga, who created an appearance not only of abuse, but also of destitution, goes and gets the court order, and here we are with poor Mr. Stump holding his bag after wife hit the street and landed safely somewhere else.
It could go any which way, and it would be up to how the case would be argued, and how the judge reads it.
It could go any which way, and it would be up to how the case would be argued, and how the judge reads it.
QUOTE(diadromous mermaid @ Feb 7 2008, 06:52 PM)
However, if one thinks through that situation, what happens to an alien that needs that assistance?
Well, if he or she were in a viable marriage but the income is too low to self-sustain, then they seek benefits...and the government, by virtue of the extant Affidavit of Support, has the opportunity within the ensuing 10 years of getting that money back from the sponsor. All poverty aside, that is, But I believe that the language on the Affidavit of Support that refers to the sponsor being responsible for providing support goes beyond the means-tested issue to cover the occasion, or the case of an alien (in the cases of divorce) where the sponsor's income is deemed to the alien, yet the alien is not a member of the sponsor's household and so, in order to be able to keep the wolf from the door, the Affidavit leaves a door open for the alien to have the sponsor to lean on, when all else fails.
Well, if he or she were in a viable marriage but the income is too low to self-sustain, then they seek benefits...and the government, by virtue of the extant Affidavit of Support, has the opportunity within the ensuing 10 years of getting that money back from the sponsor. All poverty aside, that is, But I believe that the language on the Affidavit of Support that refers to the sponsor being responsible for providing support goes beyond the means-tested issue to cover the occasion, or the case of an alien (in the cases of divorce) where the sponsor's income is deemed to the alien, yet the alien is not a member of the sponsor's household and so, in order to be able to keep the wolf from the door, the Affidavit leaves a door open for the alien to have the sponsor to lean on, when all else fails.
Thus the plain language 'warnings' on the affidavit as to what the sponsor may be letting themselves in for.
Clever, those lawyers.
QUOTE(tito @ Feb 7 2008, 07:27 PM)
That's a scary scenario...but when I talk to colleagues about the effect of the declaration of support, they are universally of the view that it doesn't mean squat unless the alien is destitute and on the street. And this ought to be a bee in someone's bonnet, but that's where the lawyers in the network of Russian brides are so effective...it's all set up in advance...the shelter, the social worker, everything. THEN Olga, who created an appearance not only of abuse, but also of destitution, goes and gets the court order, and here we are with poor Mr. Stump holding his bag after wife hit the street and landed safely somewhere else.
It could go any which way, and it would be up to how the case would be argued, and how the judge reads it.
It could go any which way, and it would be up to how the case would be argued, and how the judge reads it.
I tend to think that any pre-arranged network in place for "Olga" is set up as a safety net in case she finds herself in an intolerable situation. The groups I have heard of have a far less sinister side to them than the one you paint.
QUOTE(rebeccajo @ Feb 7 2008, 04:31 PM)
I tend to think that any pre-arranged network in place for "Olga" is set up as a safety net in case she finds herself in an intolerable situation. The groups I have heard of have a far less sinister side to them than the one you paint.
This is actually the reality. I'm sure this is true of most ethnic communities, but Russians do take care of their own. I have a sneaking suspicion this is how our lady managed to find her way into Canada in the other thread (more "rescued" than shadowy underworld plot device), but that too is speculation. In any case I'll ask again if we could refrain from the term "Russian bride" and its variants. It really is just this side of an ethnic slur and I think we're all better than that.
I'd also like to thank all the participants in this thread. I know my role has been as an aggravator, but the discussion is both fascinating and enlightening. Thank you all.
QUOTE(rebeccajo @ Feb 7 2008, 07:25 PM)
If the agency themself is unaware, that may explain why the affidavit is rarely enforced. The agencies don't realize they have a means to recover.
My point exactly. Affidavits are for people, not for agencies. Most agencies wouldn't know their arse
from their elbow, much less how to subpoena an Affidavit.
Why wouldn't the agency know there is an Affidavit? If an alien approaches an agency for assistance there is an application process to determine eligibility. The fact that the person is an alien and the fact that the alien is sponsored is unearthed during that process.
If the alien doesn't declare who the sponsor is, you can very well bet that the agency and USCIS do communicate. In fact, the final rule states that, if the sponsored immigrant applies for public benefits, USCIS may disclose the sponsor’s social security number and last-known address to a benefit-granting agency.
If the alien doesn't declare who the sponsor is, you can very well bet that the agency and USCIS do communicate. In fact, the final rule states that, if the sponsored immigrant applies for public benefits, USCIS may disclose the sponsor’s social security number and last-known address to a benefit-granting agency.
QUOTE(diadromous mermaid @ Feb 8 2008, 09:09 AM)
Why wouldn't the agency know there is an Affidavit? If an alien approaches an agency for assistance there is an application process to determine eligibility. The fact that the person is an alien and the fact that the alien is sponsored is unearthed during that process.
If the alien doesn't declare who the sponsor is, you can very well bet that the agency and USCIS do communicate. In fact, the final rule states that, if the sponsored immigrant applies for public benefits, USCIS may disclose the sponsor’s social security number and last-known address to a benefit-granting agency.
If the alien doesn't declare who the sponsor is, you can very well bet that the agency and USCIS do communicate. In fact, the final rule states that, if the sponsored immigrant applies for public benefits, USCIS may disclose the sponsor’s social security number and last-known address to a benefit-granting agency.
In theory. In reality, anyone can apply for benefits - there's no "registry of citizens" and no easy
way to determine that a person with SSN 123-45-6789 is an alien and not a U.S. citizen.
QUOTE(mawilson @ Feb 8 2008, 12:22 PM)
QUOTE(diadromous mermaid @ Feb 8 2008, 09:09 AM)
Why wouldn't the agency know there is an Affidavit? If an alien approaches an agency for assistance there is an application process to determine eligibility. The fact that the person is an alien and the fact that the alien is sponsored is unearthed during that process.
If the alien doesn't declare who the sponsor is, you can very well bet that the agency and USCIS do communicate. In fact, the final rule states that, if the sponsored immigrant applies for public benefits, USCIS may disclose the sponsor’s social security number and last-known address to a benefit-granting agency.
If the alien doesn't declare who the sponsor is, you can very well bet that the agency and USCIS do communicate. In fact, the final rule states that, if the sponsored immigrant applies for public benefits, USCIS may disclose the sponsor’s social security number and last-known address to a benefit-granting agency.
In theory. In reality, anyone can apply for benefits - there's no "registry of citizens" and no easy
way to determine that a person with SSN 123-45-6789 is an alien and not a U.S. citizen.
I wanted to say to you what Mermaid has here (which she does more eloquently than I ever could - but I digress), however I don't have particular agency experience or any links to back up the argument. So I didn't write down my thoughts. I will now though.
In some of my 'googling' about the affidavit, I've come across numerous 'hits' which were directives from Human Services Department manuals for several different states. Because the links weren't what I was particularly researching at the time, I didn't bookmark them. However, those links were specific instructions to caseworkers on how to process applications for an immigrant.
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