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AILA-Washington Monthly Chapter Meeting

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

2 Advanced issues with enforcement
Greg McLawsen Puget Sound Legal, P.C. (425) 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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 II (Div. II) Caution: plead it or lose it? Claim/issue preclusion. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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). When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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

11 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. 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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

13 What Income is Relevant for QQ’s?
Start with the SSA income reports for the beneficiary and petitioner, obtainable online from 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 (Feb. 2002). Cannot use QQ’s if received means-tested public benefits (MTPB) during the quarter. DOS Cable, supra. ACA subsidies are not MTPB. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 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 at #5. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 ; DOS Cable, Infonet 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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 $ 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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

19 Risks of failure to properly apply the 40 QQ requirements
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 When you hike you need a place to sleep, but you do not need a tent. Tents are the default

20 Risks of failure to properly apply the 40 QQ requirements
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 When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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). When you hike you need a place to sleep, but you do not need a tent. Tents are the default

22 Resources INA 213A 8 CFR 213A Title II, Social Security Act, 42 USC §§ SSA, Historical Series of Earnings needed to earn one quarter of coverage, , published at SSA POMS Section: SI (01/07/2013), published at https://secure.ssa.gov/apps10/poms.nsf/lnx/ !opendocument Aytes, Consolidation of Policy Regarding USCIS Form I-864 (AFM Update AD06-20), (06/27/2006) AILA Infonet No DOS Cable (Feb 02): 40 Quarters SSA in Lieu of I-864, AILA Infonet No (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 Cronin, Whether Affidavit of Support is Required if the alien has worked 40 quarters (05/17/2001), AILA Infonet No Cronin, Effect of Enactment of CCA on Affidavit of Support Requirement, (05/17/2001), AILA Infonet No When you hike you need a place to sleep, but you do not need a tent. Tents are the default

23 The Ethics of Assisting Joint Sponsors
Greg McLawsen Puget Sound Legal, P.C. (425) 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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

26 If yes client relationship:
Must assess possibility of “concurrent” conflicts. Must either secure written waiver of conflicts or withdraw. When you hike you need a place to sleep, but you do not need a tent. Tents are the default

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 adverse to another client… At minimum attorney will need to consult with joint sponsor and principal clients to assess existence of present conflict When you hike you need a place to sleep, but you do not need a tent. Tents are the default

28 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. 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 When you hike you need a place to sleep, but you do not need a tent. Tents are the default

29 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). So: Must identify the conflict Secure written consent When you hike you need a place to sleep, but you do not need a tent. Tents are the default

30 pugetsoundlegal.net i-864.net
Questions? Greg McLawsen Puget Sound Legal, P.C. (425) pugetsoundlegal.net i-864.net Robert Gibbs Gibbs Houston Pauw 1000 Second Ave. #1600 Seattle, WA 98104


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