AOS Pending But Want Divorce What To Do About i864

[visajourney2012 0]

I am married and have just filed for AOS.

My partner came to US on a K1 and we adjusted status.

There were some problems in the marriage but we decided to keep trying. In retrospect the marriage was probably doomed from the start and we both realize we made a mistake. We have now realized there is no hope for the marriage. I think my partners has essentially stopped trying and I think is only staying in the marriage for the immigration benefit. As I said we have filed the AOS but it has not been approved yet. I am at a bit of a crossroad. I know my partner married me for love but probably didn't understand or want to understand all that is involved in marriage. I dont think my partner is a bad person. My dilemna now is do I let the AOS proceed or do I pull my I864. I have seen many posts on here where people say it isnt fair to objectify the person from the foreign country by yanking them around and wanting them to go back to their home country. I am not trying to do that but I don't want to put myself in a bad position because of this marriage.

My biggest concern right now is the I864. Were this not in the equation I would have no problem going forward with this. I dont even have a problem helping my partner set up and establish a life. I dont have have a problem giving my partner a generous divorce settlement to return home...this is my preference.

I am not concerned about my partner obtaining government benefits. I am more concerned about my partner potentially trying to enforce the I864 for support. I wont get into details but some things have surfaced recently that make me think that my partner believes I owe them a certain lifestyle and that I owe them something in general. I think LPR status is gift enough since my partner has made the choice to stay in the US when I would rather they return home.

For all the people out there that think the US Citizen is so inhumane in these cases...know that it isnt an easy decision and comes down to self preservation

My questions are:

Should I allow the AOS to proceed, what has been the success in people using I864 for support and for how long

Are the cases that proceed rare or is this happening alot?

Is there any way I can protect myself from this aspect or that would make me more sympathethic in front of a judge should it get to this?

ANYBODY BEEN IN A SIMILAR POSITION AND HAD SUCCESS OR HORROR STORY

I am desperate for advice/help.

Thanks

[amykathleen2005 441]

Well firstly always try to protect yourself from any accusation of abuse. You don't want your spouse to be able to claim abuse and get VAWA for AOS. Secondly, how long have you been married? It is a major upheaval, you sure you don't want to work things out, if you only just applied for AOS you can't have been married all that long. If you decide to end things, please submit a letter to USCIS stating you are pulling your support of the AOS application.

Good luck.

[bigdog 376]

If needed see a divorce attorney and immigration attorney or withdraw your support and do it on your own. Like stated be careful of accusations cannot defend. Sorry if did not work out.

[NigeriaorBust 4,087]

It is unfortunate that the relationship isn't working. Real life 24/7 is very different than the fantasy of long distance. Your partner has left their home as their part of this invertment. You have probably been the one to pay for most of the costs so far. So you both have a lot invested. Niether of you should be expecting the other to tie themselves up further for a failed investment. You should pull the I 864 and take steps to close out the relationship. This will mean that your ex to be has no status to stay in the US unless they file VAWA which would require that you get charged with assult normally. Be careful.

[visajourney2012 0]

It is unfortunate that the relationship isn't working. Real life 24/7 is very different than the fantasy of long distance. Your partner has left their home as their part of this invertment. You have probably been the one to pay for most of the costs so far. So you both have a lot invested. Niether of you should be expecting the other to tie themselves up further for a failed investment. You should pull the I 864 and take steps to close out the relationship. This will mean that your ex to be has no status to stay in the US unless they file VAWA which would require that you get charged with assult normally. Be careful.

Thanks for the response

Edited June 30, 2012 by visajourney2012

[Anh map 2,098]

There have been rare civil cases where the I-864 obligation has been enforced to provide basic support.

The beneficiary would have to bring suit. And the award would be the difference between the beneficiary's income and the poverty income for a single person (currently approx $11,170).

[del-2-5-2014 1,339]

I haven't been in a similar situation but have been through a divorce.

It is my opinion that during divorce, the couples position themselves for their own personal best interest. Unfortunately, you have a Lion in the room in terms of the I-864, there is no reason to have that document over your shoulder when you said this "I think my partners has essentially stopped trying and I think is only staying in the marriage for the immigration benefit."

I also read you as someone that wants to do some stuff out of compassion. So if I were you, I would divorce quickly (if no kids then I recommend a divorce) and concurrently work on writing/removing the I-864, you need to move with deliberate haste on this.

Give her that generous severance package to cleanse your character which should include flight back to home country. I have no qualms about someone going back to their home country, the immigrant should know of this possibility during courtship.

IMPORTANT: Even though you haven't written anything to suggest this but I would try to not be alone with your Wife due to VAWA. Yes she might be the best angel in heaven but there are coaches that coach Women on using VAWA, online and in these so called "shelters".

Good luck Sir, it is a trying situation.

[Darnell 8,478]

well, is always an option to WITHDRAW the I-864 prior to green card issuance. Do that? is NO Adjustment of Status - the process stops.

[JimVaPhuong 4,863]

It's difficult to gather definitive statistical data on enforcement of the affidavit of support.

I can say with some confidence that the federal and state governments very rarely take enforcement action on an affidavit of support because of an immigrant who collects means tested public benefits. Several years ago the state of New Jersey tried to crackdown on sponsors of immigrants in an effort to recover some money and bolster their state treasury. After about 300 cases were filed a federal judge ordered them to stop. That was the most sweeping crackdown I've ever heard of. I don't believe I've ever read a case here on VJ where a sponsor was sued by the government because the sponsored immigrant collected means tested benefits, and there is very little on the internet about cases like that. From that I conclude that it almost never happens. Even so, the I-864 has been tested and upheld in court, so it IS enforceable. I'd hate to be one of those rare exceptions where it was actually enforced.

There is some small amount of cases on the internet regarding the immigrant taking enforcement action on an affidavit of support. Again, I don't have any statistical data. The anecdotal evidence seems to indicate that family courts in many states don't like to consider the affidavit of support. They have guidelines in the state's family code regarding how to determine spousal support which they are obligated to follow. Those guidelines often allow for consideration of a prenuptial agreement, but the affidavit of support doesn't constitute a valid prenup because it wasn't signed by the immigrant spouse. I've read a few cases where the affidavit was used successfully in family court to establish the basic spousal support amount, but I've read many more cases where the immigrant spouse sued in a separate civil court proceeding. The results of these suits are mixed, and seem to depend heavily on each state's laws. I've read cases where family court judges refused to consider the affidavit. I've read other cases where family court judges ordered spousal support equal to 125% of the poverty guidelines for one person. I've read cases where a civil court judge told the immigrant that they weren't a party to the contract, and they should get the federal government to sue the sponsor on their behalf. I've read other cases where the civil court judge ordered payments equal to the poverty guidelines. I've also read both family and civil court cases where the judge basically agreed that the affidavit was enforceable, but called it a wash because the immigrant's income was already over the poverty guidelines, and that's the only thing the sponsor promised to ensure.

If I were in your boots, I'd pull the affidavit of support. You didn't promise a green card when you said "I do", and you have no obligation to follow through and help your "partner" get one now. The only motive the law permits is that you have a legitimate spousal relationship, and you want your spouse to remain with you in the United States. The relationship doesn't exist anymore. Without it, there is no basis for getting a green card. If you continue to cooperate with getting your spouse a green card then you are, essentially, participating in fraud.

[del-2-5-2014 1,339]

It's difficult to gather definitive statistical data on enforcement of the affidavit of support.

I can say with some confidence that the federal and state governments very rarely take enforcement action on an affidavit of support because of an immigrant who collects means tested public benefits. Several years ago the state of New Jersey tried to crackdown on sponsors of immigrants in an effort to recover some money and bolster their state treasury. After about 300 cases were filed a federal judge ordered them to stop. That was the most sweeping crackdown I've ever heard of. I don't believe I've ever read a case here on VJ where a sponsor was sued by the government because the sponsored immigrant collected means tested benefits, and there is very little on the internet about cases like that. From that I conclude that it almost never happens. Even so, the I-864 has been tested and upheld in court, so it IS enforceable. I'd hate to be one of those rare exceptions where it was actually enforced.

There is some small amount of cases on the internet regarding the immigrant taking enforcement action on an affidavit of support. Again, I don't have any statistical data. The anecdotal evidence seems to indicate that family courts in many states don't like to consider the affidavit of support. They have guidelines in the state's family code regarding how to determine spousal support which they are obligated to follow. Those guidelines often allow for consideration of a prenuptial agreement, but the affidavit of support doesn't constitute a valid prenup because it wasn't signed by the immigrant spouse. I've read a few cases where the affidavit was used successfully in family court to establish the basic spousal support amount, but I've read many more cases where the immigrant spouse sued in a separate civil court proceeding. The results of these suits are mixed, and seem to depend heavily on each state's laws. I've read cases where family court judges refused to consider the affidavit. I've read other cases where family court judges ordered spousal support equal to 125% of the poverty guidelines for one person. I've read cases where a civil court judge told the immigrant that they weren't a party to the contract, and they should get the federal government to sue the sponsor on their behalf. I've read other cases where the civil court judge ordered payments equal to the poverty guidelines. I've also read both family and civil court cases where the judge basically agreed that the affidavit was enforceable, but called it a wash because the immigrant's income was already over the poverty guidelines, and that's the only thing the sponsor promised to ensure.

If I were in your boots, I'd pull the affidavit of support. You didn't promise a green card when you said "I do", and you have no obligation to follow through and help your "partner" get one now. The only motive the law permits is that you have a legitimate spousal relationship, and you want your spouse to remain with you in the United States. The relationship doesn't exist anymore. Without it, there is no basis for getting a green card. If you continue to cooperate with getting your spouse a green card then you are, essentially, participating in fraud.

This is perhaps the most astute post I have ever read on VJ. It should be stickied somewhere.

[Julie y Pat 67]

This is perhaps the most astute post I have ever read on VJ. It should be stickied somewhere.

I have never read a post by Jim that was not as equally astute and well written. It is members like him who make this site such a valuable resource. Thank you, JimVaPhuong.

[Andie 147]

I have never read a post by Jim that was not as equally astute and well written. It is members like him who make this site such a valuable resource. Thank you, JimVaPhuong.

[Moto77 0]

It's difficult to gather definitive statistical data on enforcement of the affidavit of support.

I can say with some confidence that the federal and state governments very rarely take enforcement action on an affidavit of support because of an immigrant who collects means tested public benefits. Several years ago the state of New Jersey tried to crackdown on sponsors of immigrants in an effort to recover some money and bolster their state treasury. After about 300 cases were filed a federal judge ordered them to stop. That was the most sweeping crackdown I've ever heard of. I don't believe I've ever read a case here on VJ where a sponsor was sued by the government because the sponsored immigrant collected means tested benefits, and there is very little on the internet about cases like that. From that I conclude that it almost never happens. Even so, the I-864 has been tested and upheld in court, so it IS enforceable. I'd hate to be one of those rare exceptions where it was actually enforced.

There is some small amount of cases on the internet regarding the immigrant taking enforcement action on an affidavit of support. Again, I don't have any statistical data. The anecdotal evidence seems to indicate that family courts in many states don't like to consider the affidavit of support. They have guidelines in the state's family code regarding how to determine spousal support which they are obligated to follow. Those guidelines often allow for consideration of a prenuptial agreement, but the affidavit of support doesn't constitute a valid prenup because it wasn't signed by the immigrant spouse. I've read a few cases where the affidavit was used successfully in family court to establish the basic spousal support amount, but I've read many more cases where the immigrant spouse sued in a separate civil court proceeding. The results of these suits are mixed, and seem to depend heavily on each state's laws. I've read cases where family court judges refused to consider the affidavit. I've read other cases where family court judges ordered spousal support equal to 125% of the poverty guidelines for one person. I've read cases where a civil court judge told the immigrant that they weren't a party to the contract, and they should get the federal government to sue the sponsor on their behalf. I've read other cases where the civil court judge ordered payments equal to the poverty guidelines. I've also read both family and civil court cases where the judge basically agreed that the affidavit was enforceable, but called it a wash because the immigrant's income was already over the poverty guidelines, and that's the only thing the sponsor promised to ensure.

If I were in your boots, I'd pull the affidavit of support. You didn't promise a green card when you said "I do", and you have no obligation to follow through and help your "partner" get one now. The only motive the law permits is that you have a legitimate spousal relationship, and you want your spouse to remain with you in the United States. The relationship doesn't exist anymore. Without it, there is no basis for getting a green card. If you continue to cooperate with getting your spouse a green card then you are, essentially, participating in fraud.

Is there any chance you could point me to some of these cases Jim?

[Villanelle 4,122]

I would have to agree. You got married applied for AOS and in your opinion the marriage is over. Staying together until the GC is issued solely for the purpose of the the GC is fraud. Since youre coming from a K1 you may or may not have an interview, so they may never know. But if you do have an interview, are you going to go to the interview and lie? Pretend that you are still happily married or tell the truth? That the marriage broke down a while ago and you will be filing for divorce soon after you walk out, but the only reason you havent yet is that you were waiting for the GC? Because youre a 'good guy', you may not see a problem "helping my partner set up and establish a life" but the USCIS does. Its called fraud.

Currently LPRS can not collect means tested benefits until 5 years. But thats currently. I believe that law started taking effect in 2009 (?) Perhaps in the future that will change. Maybe it will be 6 years maybe more, maybe less. Who knows. Thats the current law though. As Jim posted its hard to find statistics on how many people are actually forced to repay benefits because they signed an affidavit. I personally believe its because theres a huge breakdown in the system. Its not because the contract is not enforceable, but just because of a lack of communication between government agencies. How many people after divorcing an immigrant would still file an updated address form with USCIS so that the government would be able to find them? Not many. Once theyre divorced USCIS is the last thing on their mind. If the immigrant was to file for means tested benefits on their 6th year of LPR and get it, it would be the states responsibility to contact USCIS figure out who signed the affidavit and bill them. Like I said USCIS might not have updated info, and overall it might end up costing the state more in collection and researching efforts then they paid out in benefits.

So while its a huge scary thing for the USC because it is a contract you signed that can be enforceable and you dont know if it is and it very well could be- it doesnt seem to be enforced that often.

You also have the other part of it- your ex-spouse potentially being able to sue you in a civil court for financial support in whatever amount they are lacking to keep them above the 125% poverty level as long as the affidavit is valid. Again this is something that is very hard to find statistics for. It can theoretically happen. People can sue each other for anything they want. The only way to protect yourself from something like this is to have a clause in your divorce stating she is not allowed to do this. Because you are stating you are willing to offer her a generous divorce settlement it seems you have a lot to negotiate with.

So I would suggest if you do decide to go forward and obtain her GC (which is fraud but your choice) that you insist on having clauses in the divorce that state 1- that she will not apply for any means tested benefits in the future and if she does and you are forced to repay them that you have the right to sue her and recoup the money back and 2 that she waives her right to sue you in the future for any financial support in whatever amount she is lacking to keep her above the 125% poverty level as long as the affidavit is valid. (use an attorney to prepare appropriate wording)