Category Archives: Uncategorized

Affidavit of Support (Form I-864) Factors Into Divorce Proceedings

It says right on the instructions to USCIS Form I-864, the Affidavit of Support that petitioner/sponsors must sign in order to get a green card (lawful permanent residence) for their husband or wife, that “Divorce does not end the sponsorship obligation.”

That obligation is to support the immigration at 125% of the U.S. Poverty Guidelines level, in order that he or she does not have to rely on need-based public assistance. The agreement isn’t forever — it can be ended by the immigrant’s death, change of status to U.S. citizenship, or completion of 40 work quarters (as defined by Social Security; about ten years) in the United States.

But what does that obligation actually mean in practice, and how would it be enforced? A divorcing husband in Pennsylvania put the matter to the test. He managed to win a state divorce court judgment saying that the Affidavit of Support obligation was a civil one, and should not be considered in setting the husband’s spousal support obligation; and moreover, that his soon-to-be-ex-wife’s earning capacity — despite the fact that she had no current job — should be subtracted out of the husband’s support obligation.

But in late 2011, the superior court disagreed. It found that the husband had, by executing the I-864, signed onto a commitment that overrode any state guidelines as to spousal support amounts; and that moreover, only the wife’s actual employment should count toward reaching the 125% of the Poverty Guidelines minimum, not her supposed “earning capacity.”

The (ironically named) case is Love v. Love, Pa. Super. Ct., No 1975 EDA 2010 (J-A08031-11, 12/14/11).

Wonder Where Most New U.S. Permanent Residents Come From? See DHS’s Map

The Department of Homeland Security (DHS) has released a series of maps showing the countries of origin of U.S. lawful permanent residents, spanning the years from 1820 to 2010. Scanning the graphics is like a timeline of major or cataclysmic world events — there’s a spike in Irish immigration soon after the time of the potato famine (1845); a spike in Cuban immigration shortly after Castro came to power in the 1950s — and a current spike in immigration from India (Silicon Valley is calling, I believe).

But doesn’t anyone want to leave Iceland?

 

Immigration Lawyers Dealing With Bureaucratic Nonsense

Want to know what it’s really like practicing immigration law? An unbelievable amount of time is spent responding to or dealing with the consequences of administrative mess-ups. Lost applications, misplaced checks, bizarre requests for evidence, and more — all handled by remote offices with tangled intake processes (see chart at left).

I had a situation where USCIS insisted it hadn’t received the required checks from my client to accompany a visa petition, even after we sent it photocopies of the checks. We went back and forth, back and forth, until the clients finally cancelled the checks and submitted new ones — at which point USCIS magically found the old checks, attempted to cash them (no go, because of the cancellation), and then charged my clients for the bounced-check fee. Aargh.

These issues don’t get as much air time as they should — partly because there is no one to complain to (just try getting media attention on injustices to immigrants) and perhaps partly because lawyers don’t want to piss off the very agency they have to work with day after day.

So it’s refreshing to see attorney Greg Siskind blogging about dumb moves by USCIS. Here’s his first, called “Dumb RFE of the Day: USCIS Demands Proof a Physician Needs a College Degree.” Read it and realize that part of hiring an immigration lawyer means you can pass at least a portion of the frustration and ulcers on to them!

Immigration Court Hearing on Your Calendar? It May Go Away

New statements about “prosecutorial discretion” from Immigration and Customs Enforcement (ICE) may result in some people’s immigration court (EOIR) hearings being cancelled, and their cases being put on pending, inactive status.

What’s going on? Basically, the immigration enforcement authorities are always overworked, and have always had the ability to make choices as to which immigrants they would attempt to arrest and deport (for reasons ranging from the foreign nationals’ unlawful presence in the U.S. to their having committed crimes after obtaining a  U.S. green card).

But as of recently, ICE agents are expected to follow more specific guidelines in choosing who to prosecute — and not only that, to review cases that are already in the immigration court system, to see whether they’re actually worth pursuing. These reviews have already begun, and are expected to continue through mid-January of 2012.

In brief, the cases most likely to be kept in the immigration court system are those where the person is has a record of either immigration fraud or egregious violations of the immigration laws or of criminal, gang, or terrorist activity, is otherwise a threat to public safety, or has been removed (deported) from the U.S. before.

The cases most likely to be closed are those where the foreign national has served in the U.S. armed forces, are young people in school, have longstanding family (including same-sex) and other ties to the U.S., are the victims of crime or domestic violence), and so on.

You’ll have to wait and see whether ICE chooses to close your case. Although this won’t give you any concrete rights in the U.S. (i.e., it’s not a path to a green card), some people whose cases have been administratively closed will be able to receive U.S. work permits. The procedure for applying for a work permit has not yet been announced.

For details, talk to your attorney and read the David Morton memo found on the Secure Communities page of the ICE website.