Removing condition/overstay and I-864

[WombatWombat 9]

I posted previously "Irrational husband" and got some great advise. But I just wanted to clarify a couple more questions I had, strictly in regards to the immigration, and less in regards to our marriage problems.

a) If we do not remove conditons, what happens if he overstays?

- Will the I864 be invalidated by him overstaying, if he doesn't remove conditions by himself after divorce, or leave the country?

- Would we be able to file removal for condition together at a later time, should we choose to reconcile instead of divorcing. (with the apology letter for late filing)?

b) If we do not remove conditions together, and he leaves the country, but we stay married, do we have to start fresh with CR1 visa if we reconcile at a later date?

c) Hearing more and more stories of the I864 being used in court to obtain spousal support/alimoney by the immigrant spouse, would I be able to protect myself by doing a post-nup agreement where he waves his right to sue for support based on the I-864? I don't have a problem with it being a contract between the government and myself regarding means-tested benefits, but being taken to the cleaners by a non-working spouse for alimony - that's a whole different story. Is there any existing wording how to phrase this in a post-nup?

Thanks for clarification. It is hard enough to deal with a rocky marriage, but immigration of course complicates things.

I don't have a problem with him staying in the country, or removing conditions by himself, I just don't want to be paying for him forever and going broke after seperation/divorce. He doesn't have a good track record in regards to working, and he might chose not to work regularly. I am already in debt due to the immigration and his "lifestyle" in the past 2 years...

[InHisTime 110]

Hello Wowbat !

Reading your current and previous posts I just feel that you really have to be strong in order to overcome the challenges that you are facing now.

I can't respond to your immigration queries but I'm sure a little bit later our VJ expert-members will come out and help you.

I do hope that you will move on from this nightmare. Don't ever settle for less. Be strong and do what is right for you. Pain is temporary. Keep the faith.

Life is too short to dwell on a man who doesn't appreciate and love you back. Keep moving forward and no turning back. Hugs to you !

[blahblahblog 36]

a) I know that if he leaves the country and abandons the green card, the I-864 is dropped. If he doesn't remove conditions, he abandons the green card. But I'm not sure what happens with the I-864 if he abandons the green card and overstays.

b) I believe that's correct.

c) I would talk with a family lawyer that is smart and pay for his time investigating this. The cases are based on argumentation, not clear letter of the law. How much a pre-nup can mitigate an I-864 is a very hard question.

[WombatWombat 9]

I think there is a good chance he would overstay, and not leave the country even if I buy him a plane ticket home. Just my gut feeling....

[Villanelle 4,121]

I posted previously "Irrational husband" and got some great advise. But I just wanted to clarify a couple more questions I had, strictly in regards to the immigration, and less in regards to our marriage problems.

a) If we do not remove conditons, what happens if he overstays?

- Will the I864 be invalidated by him overstaying, if he doesn't remove conditions by himself after divorce, or leave the country?

- Would we be able to file removal for condition together at a later time, should we choose to reconcile instead of divorcing. (with the apology letter for late filing)?

b) If we do not remove conditions together, and he leaves the country, but we stay married, do we have to start fresh with CR1 visa if we reconcile at a later date?

c) Hearing more and more stories of the I864 being used in court to obtain spousal support/alimoney by the immigrant spouse, would I be able to protect myself by doing a post-nup agreement where he waves his right to sue for support based on the I-864? I don't have a problem with it being a contract between the government and myself regarding means-tested benefits, but being taken to the cleaners by a non-working spouse for alimony - that's a whole different story. Is there any existing wording how to phrase this in a post-nup?

Thanks for clarification. It is hard enough to deal with a rocky marriage, but immigration of course complicates things.

I don't have a problem with him staying in the country, or removing conditions by himself, I just don't want to be paying for him forever and going broke after seperation/divorce. He doesn't have a good track record in regards to working, and he might chose not to work regularly. I am already in debt due to the immigration and his "lifestyle" in the past 2 years...

Honestly Im not sure which thread was yours on here and its probably better that way since you are looking for clean to the point immigration only advice-

So- (disclaimer, Im going to talk in plain English here. Obviously whats being discussed is way more complicated and the explanations given are given in basic overiviews. Like when you applied, its way more complex then simply being told to " file the 864 or obtain a visa", there were substeps like verifying income and getting a medical that werent detailed out in that one line explanation. So keep that in mind and if you want a more drawn out explanation of anything- ask.

A) If an alien fails to ROC, their GC will eventually become for lack of a better word- voided out on them. Administratively closed? surrendered on their behalf? whatever wording you want to use- its like a drivers license. If you dont successfully renew it- its gone.

As for a late filing- eh. This is an awkward area. Late filings ARE accepted, but how late are we talking AND what is the reason why? They have complete discretion in whether or not to accept late filings or tell you no you are too late. Some people that have been a month or two late with a decent reason are accepted. Many months late or a year because of relationship trouble. I cant see it happening. But thats my personal opinion.Again its hard to say because late filings are discretionary isssues so there is no clear yes or no youd be okay with a late filing.

Going backwards a bit, it does take time, mostly because of the sheer numbers of the workload at USCIS for things to be processed for them to realize your ROC application is not there and for them to administratively close out your GC for failure to file. So those that do file late do have a window to sneak in a late application because its not like on the day your GC expires someone is sitting at the keyboard fingers ready to cancel you. However when your late filing comes in, if your case hasnt crossed over for administrative closure yet for failing to file they will use their discretion on whether to close it or to allow it to pass with the ROC and explanation letter.

Your 864 will OFFICIALLY be cancelled when the GC is cancelled. thats cancelled, closed out, administratively closed,again whatever wording you want. Whether its because they closed it or the card was surrendered. If he chooses to leave the country- if the GC is surrendered, the 864 would be cancelled. If he leaves and doesnt surrender the card, youd have to wait for the gears to turn and the administrative process to work itself out for them to realize ROC was not filed and clean up the loose ends.

B) Yes. IMO if ROC is not filed when it should be or with in an immediate month or so delay with a logical explanation why, your late filing will be denied. Someone in the situation you are proposing- leaving the country for a separation and then wanting to come back would need a new Visa. Please keep in mind if you are married for more then 2 years when your spouse enters the US they would be getting the 10 yr card with NO conditions so there would not be a ROC in the future. Not sure when you married, or when you plan on re- applying. But it seems if you are eligble for ROC now, obviously you have been married 2 years , so your new visa would be the IR one.

Sometimes the interviews for them can be a bit harder because they know you are not getting a conditional card, so its kind of like the ROC and the initial interview in one, but since you have been married for so long and living together, you should have all the evidence of a bonafide relationship. Again, I didnt read or arent putting together the two threads- so sorry if thats an obscene comment-

C) This topic is WAAAY to long to discuss here. I would refer you to read this thread where the most current ACTUAL legal cases have went on and been resolved in courts of law recently. If you have specific concerns then please by all means address them here or in that thread.

http://www.visajourney.com/forums/topic/417935-getting-sued-using-i864/

Its just too much to re-hash all the relevant case discussion and what are your legitimate odds of getting sued (very little unless you meet certain criteria- do you?) with out turning this into a mega long posting. If you still have concerns or want to discuss something to put your mind at ease- please please post it. Like I said this is all very basic and there are many many members here who can and will expand on it.

[Boiler 43,428]

If he stays then you are still on the hook for the I 864.

There are certain situations where the I 864 becomes invalid and this is not one of them.

If he ROC's and subsequently becomes a USC you would then be OK.

[ydu1 6]

The I864 is a support mechanism contract between you and the US govt. It has nothing to do with the valid or in-validness of a greencard. when its processed, accepted and approved then as long as that person remains in the US you are on the hook. The only way out of it is when that person becomes a US citizen. which can be obtained by 3yrs of marriage or the 5yr rule. The good news is I have never heard of any case of such, so I wont worry about it.

A late filling of I751 in lot of cases is accepted by USCIS. A divorce wont help much.

My two cent will be; work on your marriage if not get a divorce and move on with your life. Marriage in general involves work its not all kumbaya and happy unicorn all the time.

[Villanelle 4,121]

Oh my gosh Im reading some of the stuff up there and Im like did I write this- this is confusing- lol.

So Im very glad Boiler and ydu posted on here for some clarity.

You had two different scenarios posted (overstaying and leaving) and I only addressed the one(leaving) and talked about it like it was the only one and I am sorry for that. I didnt say I was only talking about the one. I got so caught up in the one- I didnt remember the other one. I dont know why. Maybe cause somebody at some point in the past had a similar scenario so I just went into automatic this is familiar mode and it spewed out. So sorry.

Most if not all of what I was talking about was if he leaves the country and they cut off his GC. Then his 864 is done. So if you bear with me Im going to repost "A" with clarifications in it to reflect what the other posters had mentioned- the GC NOT being tied to the 864 if he chooses to overstay-

A) If an alien fails to ROC, their GC will eventually become for lack of a better word- voided out on them. Administratively closed? surrendered on their behalf? whatever wording you want to use- its like a drivers license. If you dont successfully renew it- its gone.

As for a late filing- eh. This is an awkward area. Late filings ARE accepted, but how late are we talking AND what is the reason why? They have complete discretion in whether or not to accept late filings or tell you no you are too late. Some people that have been a month or two late with a decent reason are accepted. Many months late or a year because of relationship trouble. I cant see it happening. But thats my personal opinion.Again its hard to say because late filings are discretionary isssues so there is no clear yes or no youd be okay with a late filing.

Going backwards a bit, it does take time, mostly because of the sheer numbers of the workload at USCIS for things to be processed for them to realize your ROC application is not there and for them to administratively close out your GC for failure to file. So those that do file late do have a window to sneak in a late application because its not like on the day your GC expires someone is sitting at the keyboard fingers ready to cancel you. However when your late filing comes in, if your case hasnt crossed over for administrative closure yet for failing to file they will use their discretion on whether to close it or to allow it to pass with the ROC and explanation letter.

Your 864 will OFFICIALLY be cancelled when the GC is cancelled. thats cancelled, closed out, administratively closed,again whatever wording you want. Whether its because they closed it or the card was surrendered THIS cancelling of the 864 ONLY will happen IF the GC is cancelled because YOU left the country so-. If he chooses to leave the country-OR if the GC is surrendered,at an embassy overseas the 864 would be cancelled. If he leaves and doesnt surrender the card, youd have to wait for the gears to turn and the administrative process to work itself out for them to realize ROC was not filed and clean up the loose ends. So no one can give you an exact date of- one surrendered the card this is when the 864 was exactly terminated, or one left the US and failed to ROC, this is the exact date your 864 was terminated for failure to file because the GC is no longer valid and they are no longer in the US.

However IF he chooses to overstay- well thats the kicker. You dont need legal status to have the 864 enforced. It is not dependent on having status. So overstaying is fine. The contract is still in effect if you look at the terms. Its also impossible to meet the terms being illegal because you can not log hours with SS as no one will be able to hire you. So its a big mess. Rarely though does one get benefits and if they do somehow does the gov come collecting. So thats somew hat of a relief to the sponsors.

(is that better guys?)

[Boiler 43,428]

If he leaves then you have no problem with the 864 no matter.

To the event there is a risk, I agree it is tiny, he has to be in the US.