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I-864 Advanced Issues Enforcement, 40 Quarters Rule and Joint Sponsor Ethics

I-864 Advanced Issues Enforcement, 40 Quarters Rule and Joint Sponsor Ethics. AILA-Washington Monthly Chapter Meeting December 10, 2013. Robert Gibbs Gibbs Houston Pauw. Greg McLawsen Puget Sound Legal, P.C . Advanced issues with enforcement.

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I-864 Advanced Issues Enforcement, 40 Quarters Rule and Joint Sponsor Ethics

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  1. I-864 Advanced IssuesEnforcement, 40 Quarters Rule and Joint Sponsor Ethics AILA-Washington Monthly Chapter Meeting December 10, 2013 Robert GibbsGibbs Houston Pauw Greg McLawsenPuget Sound Legal, P.C.

  2. Advanced issues with enforcement Greg McLawsenPuget Sound Legal, P.C.greg@pugetsoundlegal.net(425) 998-7046 i-864.net

  3. Enforcement 101, briefly • Affiant has two duties: • 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. • 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.

  4. What can be recovered? • Measure. • Difference between actual income and 125% FPG • FPG changes annually; use Guidelines per year • FPG based on state of beneficiary’s residence • “Income”? • Courts unclear about what rule govern • C.F.R. looks to federal income rules • Duty to mitigate? • Sixth Circuit: no, b/c no federal common law D • Mainly looked to policy • Different result in states (?) • Majority rule: is duty to mitigate, generally

  5. Forum for enforcement State court - usually comes up in dissolution proceedings • Two options • Contract cause of action • This is (just) a contact action • Incorporation into spousal maintenance/alimony order • 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.

  6. 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

  7. Defenses unlikely • Lack of consideration. • Prior iteration: “overcome inadmissibility” • A thing of value… at least after gloss • Current iteration: “becoming permanent resident” • Is performance optional? • Unconscionability • So far a loser • K of adhesion? • Fraud • Possible; serious immigration implications

  8. Prenuptial agreements, waiver • Possibilities: • Spouses in marriage-based cases • Convincing joint sponsors to play ball • Blain v. Herrel(D. Hawaii) • No problem concluding rights were waived • Immigration service • Beneficiary’s rights may be settled • But… an end-run around congress? • Erler v. Erler(N.D. Cal. Nov. 21, 2013).

  9. Suit by state/local agency? • May recover cost of “means tested public benefits” • What are MTPBs? • Medicaid, CHIP, TANF, SNAP and SSI • Generally beneficiary will not qualify for MTPB: • PWORA 5-year rule • “Sponsor deeming” • …but fraud may be common • No known cases in Washington, but yes elsewhere

  10. UNDERSTANDING THE 40 QUARTERS RULE AND THE I-864 Robert Gibbs Gibbs Houston Pauw 1000 Second Ave. #1600 Seattle, WA 98104 rgibbs@ghp-law.net

  11. Where is the 40 Quartersrule applied? • No I-864 is required where the beneficiary can be credited with 40 qualifying quarters (“QQ’s”) of U.S. employment. • 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.

  12. What is a QQ? • 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.

  13. What Income is Relevant for QQ’s? • 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.

  14. Credits for Spouse’s QQ’s • 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. • 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.

  15. Credits for Parents’ QQ’s • Parent’s QQ’s can be credited to child, son, daughter beneficiary, • 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.

  16. Adopted Children, et al. • CCA provides for automatic citizenship for IR-2 and IR-3 children, upon admission, so no I-864 required: • 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.

  17. QQ’s are determined based on annual income • 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.

  18. Examples when I-864 not needed • 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.

  19. Risks of failure to properly applythe 40 QQ requirements • I-864 creates enforceable contract, on which the beneficiaryor 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

  20. Risks of failure to properly applythe 40 QQ requirements • I-864 creates enforceable contract, on which the beneficiaryor 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

  21. Using 40 QQ rules to manage enforcement risks • Evaluate the 40QQ rules to determine if and/or when the 40QQ will be met. • 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).

  22. Resources • 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.

  23. The Ethics of Assisting Joint Sponsors Greg McLawsenPuget Sound Legal, P.C.greg@pugetsoundlegal.net(425) 998-7046 i-864.net

  24. 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.

  25. If no client relationship: • 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. • Express disclaimer; • Advise to seek independent legal counsel, and provide referral; • No direct advice on completing form.

  26. If yes client relationship: • Must assess possibility of “concurrent” conflicts. • Must either secure written waiver of conflicts or withdraw.

  27. 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 adverseto another client… • At minimum attorney will need to consult with joint sponsor and principal clients to assess existence of present conflict

  28. Is there a significant risk of futureconflict 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 limitedby the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. • 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

  29. Is there a significant risk of futureconflict 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). • So: • Must identify the conflict • Secure written consent

  30. Questions? Greg McLawsenPuget Sound Legal, P.C.greg@pugetsoundlegal.net(425) 998-7046 pugetsoundlegal.neti-864.net Robert Gibbs Gibbs Houston Pauw 1000 Second Ave. #1600 Seattle, WA 98104 rgibbs@ghp-law.net

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