What does the Affidavit of Support require?

[rebeccajo 14]

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.

[pushbrk 12,105]

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.

Edited February 7, 2008 by pushbrk

[tito 1]

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!

[rebeccajo 14]

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!

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).

Edited February 7, 2008 by rebeccajo

[diadromous mermaid 36]

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.

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?

[tito 1]

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.

[diadromous mermaid 36]

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.

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

[mawilson 2,133]

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.

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.

[tito 1]

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...

[mox 298]

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.

[diadromous mermaid 36]

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...

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.

[rebeccajo 14]

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.

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.

[tito 1]

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.

[rebeccajo 14]

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.

Thus the plain language 'warnings' on the affidavit as to what the sponsor may be letting themselves in for.

Clever, those lawyers.

[rebeccajo 14]

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.

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.