I-864 Advanced Issues AILA-Washington Monthly Chapter Meeting Robert Gibbs Greg McLawsen

I-864 Advanced Issues
Enforcement, 40 Quarters Rule and Joint Sponsor Ethics
AILA-Washington Monthly Chapter Meeting
December 10, 2013
Greg McLawsen
Robert Gibbs
PUGET SOUND LEGAL, P.C.
GIBBS HOUSTON PAUW
Advanced issues with
enforcement
Greg McLawsen
PUGET SOUND LEGAL, P.C.
[email protected]
(425) 998-7046
i-864.net
Enforcement 101, briefly
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Affiant has two duties:
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Maintain immigrant at 125% FPG
Repay gov’t agency for means-tested public benefits
 Does not include subsidized care under ACA
I-864 is enforceable by Immigrant-Beneficiary.
Duty terminates upon first of 5 conditions described
in the Form… not dissolution/divorce.
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Beneficiary: (1) becomes a U.S. citizen; (2) can be credited with
40 quarters of work; (3) is no longer a permanent resident and
has departed the U.S.; (4) after being ordered removed seeks
permanent residency based on a different I-864; or (5) dies.
What can be recovered?
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Measure.
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Difference between actual income and 125% FPG
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FPG changes annually; use Guidelines per year
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FPG based on state of beneficiary’s residence
“Income”?
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Courts unclear about what rule govern
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C.F.R. looks to federal income rules
Duty to mitigate?
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Sixth Circuit: no, b/c no federal common law D
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Mainly looked to policy
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Different result in states (?)
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Majority rule: is duty to mitigate, generally
Forum for enforcement
State court - usually comes up in dissolution proceedings
 Two options
– Contract cause of action
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Incorporation into spousal maintenance/alimony order
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This is (just) a contact action
Jurisdiction split
Creature of statute, so needs a statutory hook
Stay tuned in Washington: In re Marriage of Khan, No. 44814-9-II (Div.
II)
Caution: plead it or lose it? Claim/issue preclusion.
Forum for enforcement
Federal court
 Personal jurisdiction
– Generally, Affiant has conceded personal jurisdiction
 Subject matter jurisdiction
– Generally, courts have entertained claims absent diversity
– Contra: M.D. Florida, on the view the action sounds in
contract law
 Not frivolous, as INA does not clearly create a statutory
cause of action
Defenses unlikely
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Lack of consideration.
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Prior iteration: “overcome inadmissibility”
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A thing of value… at least after gloss
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Current iteration: “becoming permanent resident”
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Is performance optional?
Unconscionability
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So far a loser
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K of adhesion?
Fraud
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Possible; serious immigration implications
Prenuptial agreements, waiver
Possibilities:
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Blain v. Herrel (D. Hawaii)
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Spouses in marriage-based cases
Convincing joint sponsors to play ball
No problem concluding rights were waived
Immigration service
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Beneficiary’s rights may be settled
But… an end-run around congress?
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Erler v. Erler (N.D. Cal. Nov. 21, 2013).
Suit by state/local agency?
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May recover cost of “means tested public benefits”
What are MTPBs?
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Medicaid, CHIP, TANF, SNAP and SSI
Generally beneficiary will not qualify for MTPB:
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PWORA 5-year rule
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“Sponsor deeming”
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…but fraud may be common
No known cases in Washington, but yes elsewhere
UNDERSTANDING THE 40
QUARTERS RULE AND THE I-864
Robert Gibbs
GIBBS HOUSTON PAUW
1000 Second Ave. #1600
Seattle, WA 98104
[email protected]
Where is the 40 Quarters
rule applied?

No I-864 is required where the beneficiary can be
credited with 40 qualifying quarters (“QQ’s”) of U.S.
employment.
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Instead, file the I-864W.
Avoids need for a joint sponsor, or difficulties showing
sufficient income of petitioner
Avoids requirement that 864 affiant be domiciled in U.S., or
be a USC or LPR.
Or that
The I-864 obligation ends once the 40QQ
requirement is met.
What is a QQ?
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The INA relies on Title II of the Social Security Act.
INA § 213A(a)(3).
SSA computes QQ’s based on annual income, not
actual periods of employment by quarter.
For each calendar year, SSA specifies the amount
necessary to accrue a QQ, but not more than four in
a year. For 2013, it was $1160/quarter; in 1978 it
was $250.
QQ’s are assigned on the first day of the quarter in
which it is assigned.
What Income is Relevant
for QQ’s?
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Start with the SSA income reports for the beneficiary and
petitioner, obtainable online from www.SSA.gov. Use recent
W-2 info also.
Should include all wage or self-employed income using the
person’s SSN.
Can include income from unauthorized employment if FICA
taxes paid under the legal SSN. DOS Cable at #13, AILA
Infonet 02022233 (Feb. 2002).
Cannot use QQ’s if received means-tested public benefits
(MTPB) during the quarter. DOS Cable, supra.
ACA subsidies are not MTPB.
Credits for Spouse’s QQ’s
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The INA provides that the beneficiary can also be credited for QQ’s of
their spouse during the marriage, if still married to the spouse.
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Helpful where the marriage is several years old by the time of the I-864
filing, e.g. due to priority date waiting time.
The actual employment dates of the spouse do not have to be after the
marriage, e.g. if the spouse accrued 2 QQ’s earlier in the year of an
August marriage, they may be applied to the year regardless of the
dates of employment.
“Holding Out spouse” rule of SSA, even if no legal marriage, so long
as holding out to the world as “married.” POMS SI 00501.150
No requirement that spouse be the petitioner, e.g. could be derivative
on FB-4 petition.
SSA credits QQ’s from deceased spouse. POMS SI 00502.135 at #5.
Credits for Parents’ QQ’s
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Parent’s QQ’s can be credited to child, son, daughter beneficiary,
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including for employment prior to the child’s birth or adoption, but not after
the child is 18. Cronin Memo, Infonet 01060729; DOS Cable, Infonet
02022233.
Can include both parents’ employment.
Parents” QQ’s can be credited to several children.
Stepparents QQ’s can be credited from quarter of the marriage through the
quarter of attainment of age 18.
Adoptive parent QQ’s credited through quarter of attainment of age 18.
No requirement that parent QQ’s be based on legally authorized work,
just that FICA taxes paid on the parent’s SSN.
No requirement that the parent be the petitioner, e.g. could be an FB4
petition.
Adopted Children, et al.
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CCA provides for automatic citizenship for IR-2 and
IR-3 children, upon admission, so no I-864 required:
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Orphan, IR-3, admitted/adjusted under age 18 and to reside
in US with adoptive USC parents, unless adoption is after
admission.
Adopted child, IR-2, admitted/adjusted under 18 and to
reside in US with adoptive USC parents.
Child classified IR-2 born to a parent now a USC, admitted
/adjusted under 18 and to reside with USC parent.
QQ’s are determined based
on annual income
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If the sufficient income is gained in only one quarter of
employment, 4 QQ’s could still be established for that year.
For example, spouse worked only in January 2013 and earned
$4640. The spouse and beneficiary are credited with 4 QQ’s
for that calendar year even if no other employment.
For 2014, $1200 is the amount needed for one QQ. SSA
Historical Series of Earnings, attached.
Examples when I-864 not needed
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Beneficiary has worked in US and paid into SSA over ten
years, sufficient to accrue 40 QQ’s, regardless of work
authorization
Beneficiary has accrued 30 QQ’s, and since date of marriage,
spouse has accrued 10 QQ’s
Parents of adopted child or stepchild accrued 40 QQ’s before
child was 18.
Parents of adult son/daughter beneficiary accrued 40 QQ’s
before child was 18.
Risks of failure to properly apply
the 40 QQ requirements
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I-864 creates enforceable contract, on which the beneficiary or
welfare agency can sue, even after divorce, burdening I-864
affiant with litigation expense/risk.
Extra expense in developing an unneeded I-864.
Inability to find (unneeded) cosponsor, so LPR not
filed/approved.
I-864 Affiant is required to file address changes with CIS, up to
$5000 if beneficiary received public benefits. 8 CFR §213a.3
Risks of failure to properly apply
the 40 QQ requirements
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I-864 creates enforceable contract, on which the beneficiary or
welfare agency can sue, even after divorce, burdening I-864
affiant with litigation expense/risk.
Extra expense in developing an unneeded I-864.
Inability to find (unneeded) cosponsor, so LPR not
filed/approved.
I-864 Affiant is required to file address changes with CIS, up to
$5000 if beneficiary received public benefits. 8 CFR §213a.3
Using 40 QQ rules to manage
enforcement risks
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Evaluate the 40QQ rules to determine if and/or when the 40QQ
will be met.
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Some QQ’s may already have been accrued by time of the
approval of LPR so additional QQ’s are fewer.
The support requirement ends with the accrual of 40 quarters.
Timely obtain SSA documentation, or W-2’s. NRC will not
produce I-864 on FOIA by maker.
Delayed entry of final divorce decree may allow counting of
additional quarters to get to 40 QQ’s.
Support obligation ends if alien abandons US residence. 8 CFR
§ 213A.2(e)(2)(C).
Resources
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INA 213A
8 CFR 213A
Title II, Social Security Act, 42 USC §§ 401-433
SSA, Historical Series of Earnings needed to earn one quarter of coverage, 1978-2014,
published at http://www.ssa.gov/OACT/COLA/QC.html
SSA POMS Section: SI 00502.135 (01/07/2013), published at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0500502135!opendocument
Aytes, Consolidation of Policy Regarding USCIS Form I-864 (AFM Update AD06-20),
(06/27/2006) AILA Infonet No. 06063013.
DOS Cable (Feb 02): 40 Quarters SSA in Lieu of I-864, AILA Infonet No. 02022233
(posted 12/22/2002).
DOS Cable (06/16/2001), Elimination of the Affidavit of Support Requirement for Certain
Applicants Classified IR-2 or IR-3), AILA Infonet No. 01061691.
Cronin, Whether Affidavit of Support is Required if the alien has worked 40 quarters
(05/17/2001), AILA Infonet No. 01060729.
Cronin, Effect of Enactment of CCA on Affidavit of Support Requirement, (05/17/2001),
AILA Infonet No. 01060821.
The Ethics of Assisting
Joint Sponsors
Greg McLawsen
PUGET SOUND LEGAL, P.C.
[email protected]
(425) 998-7046
i-864.net
Is the joint sponsor a client?
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person's intent that the
lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so,
and the lawyer knows or reasonably should know that the
person reasonably relies on the lawyer to provide the
services; or
(2) a tribunal with power to do so appoints the lawyer to provide the
services.
RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS (2006), § 14.
If no client relationship:
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This is my (Greg’s) approach: avoid creation of a/c
relationship rather than waiving conflict
Must structure interactions with Joint Sponsor to
avoid accidental relationship formation.
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Express disclaimer;
Advise to seek independent legal counsel, and provide
referral;
No direct advice on completing form.
If yes client relationship:
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Must assess possibility of “concurrent” conflicts.
Must either secure written waiver of conflicts or
withdraw.
Is there a present
conflict of interest?
Washington RPC 1.7(a):
Except as provided in paragraph (b), a lawyer shall not represent a
client if the representation involves a concurrent conflict of interest.
A concurrent conflict of interest exists if: (1) the representation of
one client will be directly adverse to another client…
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At minimum attorney will need to consult with joint sponsor and
principal clients to assess existence of present conflict
Is there a significant risk of
future conflict of interest?
Washington RPC 1.7(a):
Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of
interest exists if: …(2) there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer's responsibilities to another
client, a former client or a third person or by a personal interest of the lawyer.
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Divorce rates are ~41% for first marriages, ~73% for third marriages (CDC)
If divorce occurs parties’ legal interests will be diametrically opposed,
regardless of whether everyone’s still friends
Is there a significant risk of
future conflict of interest?
Washington RPC 1.7(b):
Notwithstanding the existence of a concurrent conflict of interest… a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client; […] and
(4) each affected client gives informed consent, confirmed in writing (following
authorization from the other client to make any required disclosures).
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So:
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Must identify the conflict
Secure written consent
Questions?
Greg McLawsen
PUGET SOUND LEGAL, P.C.
[email protected]
(425) 998-7046
pugetsoundlegal.net
i-864.net
Robert Gibbs
GIBBS HOUSTON PAUW
1000 Second Ave. #1600
Seattle, WA 98104
[email protected]