005 - Immigration Law with Attorney Brandon Gillin - Part 1

In today’s episode I talked to immigration lawyer, Brandon Gillin.  We discuss the Affidavit of Support, form I-864 which in most cases is required when seeking lawful permanent residency, a green card.

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Transcript

Lani Akiona:

Hit record and then, okay. So this is Akiona Law podcast. Today's date is October 11th, 2012. I'm with immigration attorney Brandon Gillin. We're just getting ready to start the podcast here on the intersection, family law, and immigration. Okay. So I'm just going to do a countdown, countdown 5, 4, 3, 2, and one.

               Hi, I'm Lani Akiona of the family law and divorce firm, restart. Restart 5, 4, 3, 2 1.

               Hi, I'm Lani Akiona, owner of the divorce and family law firm Akiona Law based in Everett, Washington. On today's podcast, we're going to talk about the intersection of family law and immigration. And I have with me immigration attorney, Brandon Gillin. Hi, Brandon. Welcome to the podcast.

Brandon Gillin:

Hi Lani. Thank you.

Lani Akiona:

Hey, and can you tell us and today's podcast, we're going to talk about with Brandon, the affidavit of support, which is I864, but before we jump into that, Brandon, why don't you tell us a little bit about your practice, your immigration practice? What is it exactly that you do?

Brandon Gillin:

Yeah, so I practice immigration law exclusively. And what that means is we help people here who are seeking immigration status, such as lawful permanent residency or temporary visas, whether it's temporary work visas, student visas, visitor visas, changes of temporary visa status while in the United States. We also do other types of immigration relief, such as asylum. There's a whole bunch of other types of relief one can request while in removal or deportation proceedings. Such as withholding of removal, cancellation of removal, protection under the convention against torture. You can even seek a green card and citizenship while in removal proceedings.

               We also help companies sponsor foreign workers for not only temporary work visas but permanent residency. So that can involve doing what they call a perm application, which is getting the employer to recruit for the desired employees position, which then they'd have to show that there're no qualified US workers for the job, and go through a whole recruiting process and then file for a labor certificate. Anyway, we do all of that, including US citizenship, of course.

Lani Akiona:

And you're based in Linwood, Washington?

Brandon Gillin:

Yeah. Yeah. I started my practice in Everett actually. I've been doing this for over 10 years. And so yeah, I just opened my own firm in Linwood last year, right at the beginning of COVID.

Lani Akiona:

Well, congratulations on opening your own firm.

Brandon Gillin:

Thank you.

Lani Akiona:

And immigration, right. I know you're based in Linwood, but immigration is federal court?

Brandon Gillin:

Immigration is federal in nature. Yeah. So typically we deal with federal agencies like the US Department of Homeland Security, US State Department, when somebody's seeking benefits from broad they just go to a US embassy, that's the state department. And then for employment matters, it's the Labor Department. There's also immigration court, a wing of the Department of Justice, which is then controlled by the executive office for immigration review, EOIR. And so all of those federal agencies. Sometimes we can get it to federal district court so I have to be licensed to practice in the local district court if I want to do any federal litigation, such as a habeas corpus or writ of mandamus or something of that nature.

Lani Akiona:

Okay. So let's get right into it. What is the affidavit of support? I864.

Brandon Gillin:

So the affidavit of support is a form that is required in most instances where somebody is seeking a lawful permanent residency, a green card. The affidavit of support is the way that the government will handle the intending immigrant, not becoming what they call a public charge. So basically speaking an intending immigrant, can't be a drain on society, financially speaking. So they can't be on welfare, for example. That's just like a very simplistic way to put that. So one example would be that when say there's a married couple and say the US citizen is petitioning for his foreign national spouse from another country, say, for example, Germany. And so that, or Canada, we get a lot of Canadians, a lot of close by.

               So anyway, the US citizen petitioner has to sign this form. I864, which is a contract that they sign and the contract is between the US citizen petitioner and the US government. It basically is a contract to keep the foreign national beneficiary off welfare so they don't become a public charge. And that requires the US citizen to show that they have wherewithal financially to do so. And typically that's done through income. It can also be done through assets, or it can be done through a combination of income and assets.

               So as an example, an easy one would be, if the US citizen petitioner earned say $50,000 a year in W2 wages. So that's an easy one to show because they would just be required to show their tax return for the most recent year and to show their W2 that went along with that as the proof of income for that, year. Actually doesn't have to be a US citizen, it could be a green card holder petitioner.

               So lawful permanent residents can be sponsors as well. So they'd have to show proof of either their US citizenship or proof that they're a lawful permanent resident to do this.

               So the income standard is based on the federal poverty guideline for the most recent year. And so the standard is that the petitioner has to show 125% of the federal poverty guideline in income or assets or combination of the two. So typically a family's size of two, say it's just a married couple. So the family size is going to be two, that's the US citizen petitioner and the foreign national spouse.

               It's roughly $22,000 a year that petitioner would have to show in income. And let's say the petitioner only earns say 15,000 a year.

Lonnie Akiona:

Right.

Brandon Gillin:

What do they do? So it's just a calculation. So what you do is say the income is only 15,000 and the required amount is 22,000.

Lonnie Akiona:

Okay.

Brandon Gillin:

So the deficiency is 7,000. And so they might think, "Oh, I can't sponsor this person because I'm deficient."

Lonnie Akiona:

Okay.

Brandon Gillin:

Well if they have a retirement account or money in the bank, they could show, if they have the deficient amount would be 7,000. They could show 7,000 times three in assets. That's for spouses. For other types of sponsors, like say parents or something they'd have to show five times the difference of the deficiency. But in the spouse case three times, 7,000 times three, if they have that amount of money in the retirement account for a period of 12 months, then they can show their bank statements, their brokerage account statements, or what have you. That would be the combination of income and assets.

               Sometimes petitioners don't earn anything because they are say students, they're young, newly wed, maybe they're 20 years old or something or 21. And so in those cases, it's rare that someone like that has that kind of money in a bank, 22 times three, that's a lot. So they would get a joint sponsor. They have the ability to get, say a parent or it can be a family member or a close friend or doesn't have to be, but somebody who's willing to jump in and be the joint sponsor. And then that person, the joint sponsor, would also have to execute their own affidavit of support and sign it and become jointly and separately liable with the petitioner on this contract.

Lonnie Akiona:

Wow.

Brandon Gillin:

And then if they cannot find a joint sponsor, they simply cannot sponsor the intending immigrant. So it's a hard and fast requirement.

Lonnie Akiona:

Okay.

Brandon Gillin:

There are, yeah, sorry about that.

Lonnie Akiona:

No, I was going to say, so just a quick question, just I guess, in terms of a recap. So if I'm a US citizen and I'm looking to bring over my fiancee in Canada, who I plan on marrying, I want to sponsor him. I have to sign this affidavit of support basically saying that I'm going to provide support for this individual. So instead of this person being on welfare, I'm going to be providing support for this non-US citizen to come in. And for me to do that, I have to at least make earnings of 20,000 per year. Is that correct?

Brandon Gillin:

Well yeah, it's a little bit different for fiancees than it is for spouses, but I mean, to that, fiancees, that whole process requires a different kind of affidavit of support.

Lonnie Akiona:

Okay.

Brandon Gillin:

That one is actually not on the form. I864, the one we're talking about. That one actually is on a form called I134. And it's like a temporary sort of affidavit of support that is basically only, it's only to show that the US citizen petitioner can keep the foreign national fiance off of welfare for the 90 day period that they're allowed to be in the US prior to the marriage, which has to occur within 90 days of their arrival in the US.

               Anyway, the I134 is not enforceable like the I864 is. However, the fiance petition requires first getting that fiance visa to come to the US. And then, of course, 90 days, they have to get married. Once they're married, then they have to apply for adjustment of status in the US. A green card, which does require the I864. So eventually once they're married, the US citizen petitioner must sign that I864.

Lonnie Akiona:

Well, that's a good distinction to make then. The support, the I864 has to do with this contract between the US citizen, who is seeking to bring in their foreign national spouse.

               So I guess the next question would be, what is the effect of divorce on this affidavit of support obligation that I864? I'm sure that's a question that you get a lot where some people would think that I'm going to divorce this person. Can I then terminate the affidavit of support obligation? What do you tell them?

Brandon Gillin:

Well, it depends on when the divorce is taking place. So, say there's a married couple, and they're about to file paperwork for a green card, whether it's adjustment of status, or maybe just an immigrant relative like a petition for alien relative to petition from someone who's abroad, rather than in the US. If the paperwork is pending and the divorce takes place, then there's no executed contract because the executed contract comes when the green card is issued based upon all the required steps, including the affidavit of support.

               So if they're divorced, or divorcing, it would behoove the US citizen to take affirmative steps to sort of withdraw their petition.

Lonnie Akiona:

Okay.

Brandon Gillin:

And really it would probably happen regardless of taking the affirmative steps, because eventually that foreign national beneficiary is going to have to appear before a US government officer. And if their US citizen petitioner is taking no part in it, whether in the US or from abroad for that matter, the US government officer typically not going to approve that green card.

               So, but I always advise my clients in that situation, if you want to avoid your obligation you'd probably just need to withdraw from that.

               So another example-

Lonnie Akiona:

Let me ask a question right here then because I think I forgot. So when is the affidavit to support submitted? Is that submitted with a petition for a green card?

Brandon Gillin:

Yeah.

Lonnie Akiona:

Okay.

Brandon Gillin:

It depends on if you're going to file for adjustment of status, which is filing for a green card while in the US, or if you're petitioning for someone who's living abroad, it's done differently. So in the US for adjustment of status, the couple is here together. And so you'd submit the I864, the affidavit of support with all the initial paperwork, the green card application.

Lonnie Akiona:

Okay.

Brandon Gillin:

But it doesn't become executed until the green card is approved, which is after the interview. If the US citizen doesn't show up to the interview, there's really no way that beneficiaries cannot be approved for a green card and thereby the affidavit of support will not be executed and that petition will not be subject to the contract.

Lonnie Akiona:

That makes sense.

Brandon Gillin:

But if so, I basically just said it, if the petitioner does show up to the interview with the foreign national beneficiary, the couple are interviewed together by the immigration service officer from Homeland Security, and the green card is approved then the US citizen petitioner is now a party to that contract that's been fully executed and now is an enforceable contract.

               So if the divorce takes place a day later, it's still subject to the contract and the divorce, maybe it was a one day of green card approval after say a longer marriage, it's enforceable nonetheless.

               So that brings me to the point of how can a US citizen get out of that contract? Well, there are only five ways for the contracts to be terminated. Divorce is not one of those ways.

               The ways are first if the foreign national becomes a US citizen.

Lonnie Akiona:

When you say, really quickly, I just want to do a really quick recap because this is [inaudible 00:18:00] and fascinating since I don't do immigration. And so if what I'm hearing correctly is that this affidavit of support, I864, right? Before the petition for a green card, before the application has been finalized, the contract can terminate if the US citizen and their foreign national spouse, that the I864 contract doesn't go into effect if that petition for a green card has not been finalized. The application has not been finalized, correct?

Brandon Gillin:

That's right.

Lonnie Akiona:

But once, and I find this really fascinating, once the petition for a green card application goes through, that affidavit of support kicks in. So even if, like you said, you've been married for one day, and then you found out, let's say the foreign national actually has another marriage back in their country or some other circumstance that you weren't aware of. And you're like, "Okay, this is it. I want to get divorced." That affidavit of support, that I864, they remain obligated to provide financial support for their foreign national spouse, right?

Brandon Gillin:

Yeah. That example could be a little tricky, but generally speaking, yes, that's right. Yeah.

Lonnie Akiona:

In the big picture, okay.

Brandon Gillin:

Yeah. Yeah.

Lonnie Akiona:

A summary would be, if you're able to, the only way you can, I guess before the green card application is processed. If you decide not to go through with that then you're not committed to provide financial support under the affidavit of support I864. But once that green card application has been processed, it doesn't matter if you're married for one day or two days and you want to end the relationship via divorce. You're obligated to provide support under the form I864.

               So you're going to talk about, well, it's a contract that you signed with the federal government to support the foreign national spouse, but you were going to discuss what are the ways you can terminate the contract. And you said one of being that the, go ahead-

Brandon Gillin:

Yeah. Sorry. So the petitioner has no real control over terminating the contract. There are some ways that it can be terminated, however. So again, those ways, if the foreign national later becomes a US citizen through naturalization, then the contract is then terminated.

               If the foreign national can be credited with 40 quarters of work, according to the Department of Labor standards, then the contract is terminated. So typically that turns out to be roughly 10 years of full-time wages. That's taxable wages and whatnot.

               The third way is if the foreign national no longer is a permanent resident and has departed the US. So say they just decide to give up their green card and they're like, I just want to go back to my home country, and they've taken affirmative steps to give up their green card. There's a form you can abandon it by. And, you can also, I mean, I, I suppose the US citizen petitioner could show that by virtue of them being outside the US for over a year, they've abandoned their green card.

Lonnie Akiona:

Okay.

Brandon Gillin:

Even if no affirmative steps have been taken.

               The fourth way is if the foreign national is removed from the US, deported, and then later seeks permanent residency based upon a different affidavit of support. So they are sponsored by someone else.

               And then finally, if the foreign national dies. So those are the five ways that the contract is terminated. And it's notable that divorce is not one of those ways.

Lonnie Akiona:

Well, is this a way to void the I864 contract? If, I think going back to my earlier hypothetical where let's say that I married this foreign national and the marriage was under fraud because I believed we were in love and then I find out that my foreign national spouse is actually in love with someone else, or is actually married to someone else in their home country. So in my head you can invalidate the divorce based on grounds of fraud. And if that is granted, can you then use that to terminate that support I864? If you invalidate the marriage based on fraud or something?

Brandon Gillin:

Yeah. That's a good question and I don't know the answer. I don't know basically how to answer that question with the case law.

Lonnie Akiona:

Okay.

Brandon Gillin:

But I believe that there are is settled case law on those issues. And again, I don't have the citation for you, these cases have been litigated. These types of scenarios have been litigated in both federal and state courts and across the board in in both federal and state courts I believe almost 100% of them have said there are basically no defenses to the enforceability of the affidavit of support, which then would include fraud marriages. And I don't quite know, again, I don't have them in front of me, and that's an interesting topic. There is a local attorney, Greg McLawson, who litigates a lot of these cases. And I think he'd probably know off the top of his head that citation.

               Anyway, the fraud issue is-

Lonnie Akiona:

No, I definitely hear what you're saying. It's not an easy issue to resolve.

Brandon Gillin:

[inaudible 00:24:28] say that it was fraud, and don't think a family court-

Lonnie Akiona:

One second there, I lost you for a second because you froze.

Brandon Gillin:

Okay.

Lonnie Akiona:

You froze on the fraud issue.

Brandon Gillin:

Yeah, I think I just saying the fraud issue is a little bit, there's a couple things to talk about there. First, I don't believe a family court would... I mean, I think what you're saying is the family court maybe would find some determination about how the marriage was entered into fraudulently and maybe if the US citizen is seeking an annulment based upon that or something like that?

Lonnie Akiona:

Right.

Brandon Gillin:

I mean if immigration, if federal immigration authorities discovered that the marriage was entered into fraudulently, I mean, it becomes much more likely that then they would try to deport the foreign national because sham marriage is if an immigration judge makes a, a determination that there was a fraud marriage that is [inaudible 00:25:36].

Lonnie Akiona:

And I lost you again. I lost you in the part where you said, "If a immigration judge determines there's a sham marriage," then most likely that foreign national gets deported, right? And then therefore that terminates a support contract.

Brandon Gillin:

Yeah.

Lonnie Akiona:

Simply said.