006 - Immigration Law with Attorney Brandon Gillin - Part 2

In today’s episode I continue my conversation with immigration lawyer, Brandon Gillin and the Affidavit of Support. We discuss how divorce does not terminate the US citizen’s Affidavit of Support obligation.

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Transcript

Lani Akiona:

Okay, so we are picking up the recording again. And I am just trying to enable the transcript. Okay, I'm going to hide subtitles. So we're going to go ahead and pick up the recording in five, four, three, two, one.

               Welcome back. I'm Lani Akiona of the diverse and family law firm of Akiona Law. I'm with immigration attorney, Brandon Gillin. We have a little bit of some troubleshooting issues with the internet and Brandon is back. And where we left off, I had asked Brandon a question about essentially if the family law court annuls a marriage based on a fraud I had discussed with Brandon about, then it then goes before the immigration judge and if the immigration judge determines the marriage is a fraud or sham, deportation proceedings begins against the foreign national. And then that will then terminate the US citizens duty of support. Is that right, Brandon?

Brandon Gillin:

Yeah. The family courts determination of annulment is not going to affect the Affidavit of Support.

Lani Akiona:

Yeah.

Brandon Gillin:

I don't think. But if US immigration, like Homeland Security, investigates and somehow determines that there was a fraud marriage or something, and this is unlikely unless the now green card holder spouse applies for citizenship and then they determined that she was inadmissible at the time that she got a green card because there was a fraud marriage. It's unlikely, I think. But if it were to happen. And then say that foreign national green card holder now could potentially be put into removal proceedings, maybe, maybe not. And if they are put into removal proceedings and an immigration judge then determined there was a sham marriage, well, more than likely that person would be deported.

               And then the former Affidavit of Support would be terminated. But I think the misconception, a lot of US citizens have is they think that they have some control over this, so they might call me and ask me, oh, I want you to help me get my former spouse deported. First of all, that's not what I do. Secondly, even if I wanted to do that, I couldn't, because I'm not law enforcement. That's like asking a prosecutor to prosecute somebody for anything. So basically I just tell them, well, I'm not law enforcement, but there's an ICE tip line. ICE is the Immigration Customs Enforcement, the enforcement arm of the Homeland Security. Just go online, fill out the tip line, and then that's really all you can do. It's not up to you. It's up to them to decide whether they want to pursue that person.

Lani Akiona:

Okay.

Brandon Gillin:

Yeah.

Lani Akiona:

So you can help and you... You're helping in the sense of bringing in... So again, if I'm a US citizen and married a foreign national, and I want to bring in that foreign national, I would reach out to you to help me with the petition for the green card application. What do you tell people about the Affidavit of Support, the I-864, when they're meeting with you about the petition for green card application?

Brandon Gillin:

Yeah. It's very important for me to explain the Affidavit of Support to both parties, because it goes along with the notion that I'm jointly representing them in this matter. So I represent the petitioner on the initial immigrant petition and the Affidavit of Support, those two aspects. And then on the flip side, I represent the intending immigrant on the green card application. So this is a joint representation sort of necessary in these cases because it requires all of it to get it through. And so when I meet with people, I carefully explain to them about the Affidavit of Support. It's in my welcome packet. There's a whole page devoted to it. And then, I just stress to them that, if there is a divorce, I have to withdraw because then I can't continue to represent both parties anymore. It would be untenable. My loyalties would be divided. It would be a conflict of interest inherently to do so.

               And so if there's bickering, if there's any wind of marital breakdown, breakup, anything of that nature, calling me with complaints about the spouse, the other spouse it puts me in an untenable position, and I have to withdraw because I can't be in that position. I also explain to them what I've already talked about here, which are the five ways that the contract can be terminated. And I tell them in very clear terms, that divorce is not one of those ways. So if there is a divorce, you're still obligated under that petition. And again, if there's a divorce, you can't call me and ask me how to protect yourself because I would have to withdraw. You'd have to go seek out your own independent counsel at that point.

Lani Akiona:

And I think that's an important... And I'm sure that comes up all the time that a divorce does not terminate the US citizen's Affidavit of Support obligation.

Brandon Gillin:

Yeah, it's happened a few times in my practice experience where my former clients will be married for several years. And then maybe three or four years later, I get a phone call from one of them saying that there's a divorce and that either the petitioner wants to get out of the contract or find ways to terminate it or the foreign national might ask, my us citizen petitioner, former husband or wife, was obligated to keep me above this threshold... Let's say if it was a family size of two, roughly 20, 22,000 a year threshold, and they have not kept me above that threshold. It's been two years since the divorce and say two years, times 20,000, they owe me $40,000. I want to sue them for that and say, again, I can't help you with that. You might consider calling somebody else about that. Had I not been your attorney at the beginning, I might be able to help you with that.

Lani Akiona:

Okay.

Brandon Gillin:

But, but certainly not the US citizen. I don't take those cases. It's not that I have anything against the US citizens, it's just that I would rather not do that. And the reason is because there really are no defenses to the enforceability of the contract when it's been executed. Because like I said, both for federal and state courts have been pretty decisively clear that that contract is iron clad. So for example, a lot of these defense attorneys might get tricky with claiming typical contract defenses for it, maybe no consideration or something like that or like, oh, the former foreign national spouse didn't mitigate damages. And so that was like a big breakthrough case. That actually went to... It might have been a federal court. And the question, whether the foreign national has a duty to mitigate damages.

Lani Akiona:

What does that mean to mitigate? Are you saying like the foreign national spouse has the duty if the spouse is unemployed to find work?

Brandon Gillin:

Yeah, exactly.

Lani Akiona:

Okay.

Brandon Gillin:

Yeah, exactly. And the court said, no. Yeah, yeah. I was a federal court. And I think that was in the seventh circuit that went to the Court of Appeals. And that was the famed Judge Posner who came down with that decision and no duty to mitigate damages. So the former foreign national spouse does not have to find work [crosstalk 00:08:52] even if they're like injured or just sitting on the couch, they don't need to find work. So that US citizen former spouse still has the obligation to the fullest at that federal poverty guideline amount at the time the contract was executed for the number of years gone by.

Lani Akiona:

That's a really big commitment then that the US spouse is undertaking, in terms of that Affidavit of Support then. When do you not have to submit an Affidavit of Support?

Brandon Gillin:

There are only limited circumstances where you don't have to submit an Affidavit of Support. I believe under the Violence Against Women Act, if you like are a self-petitioner in that regard, you do not have to submit an Affidavit of Support. Let me just find the language here. I was wrong before when we previous spoke, I had thought that maybe there was victims of crimes, but I was incorrect on that move, victims of crimes like for [inaudible 00:10:12], people still have to do that. They have to find a sponsor. [crosstalk 00:10:15] You don't...

Lani Akiona:

So violence against women, if they're being abused by their spouse then they're exempt?

Brandon Gillin:

Yeah. If they were abused by their spouse, and then they were able to prove it by... there's a form called an I-360, that they'd have to submit and show evidence, so that they can basically be grant that immigration benefit. They could get a green card through that I-360 approval and they would not have the obligation they're... So those people are not subject to the public charge ground of inadmissibility. It's waived for them. Yeah.

Lani Akiona:

You're talking about if they're abused by their US citizen spouse?

Brandon Gillin:

Yes.

Lani Akiona:

Okay. And was there another... If you come in on a work visa, then...

Brandon Gillin:

Yeah. Employment based applicants are also not subject to the Affidavit of Support. They... Hang on, I need to find that language. Anyway, the overarching point here is that most green card applicants are subject to the public charge grounded of inadmissibility, so therefore they would have to file that Affidavit of Support.

Lani Akiona:

Okay. Again, it sounds like very limited circumstances when you would not have to do that Affidavit of Support, which most likely doesn't apply to most of the US citizens bringing in their foreign national spouse.

Brandon Gillin:

Yeah. Here I go, I found the language here. And so I just wanted to find the language so I can tell you exactly who is subject and who's not subject. So who is subject to the.. so all immediate relatives of US citizens. So that spouses, unmarried children under 21, and parents of US citizens who are 21 years or older. And then ll family based preference immigrants. So, immigration makes a distinction between immediate relatives and preference category relatives. So preference category relatives are people like spouses of green card holders, parents of US... Sorry, children of green cardholders, married children of US citizens who are 21 or older and then siblings of US citizens. Those are types of people who are in preference categories. They have to usually wait in line to get available visas for them in order to apply for a green card, they're all subject. And then employ based...

Lani Akiona:

They're all subject to the Affidavit of Support?

Brandon Gillin:

Yes. Yes. And then a very small carve out for employment based immigrants where the US citizen has a significant ownership in the entity that filed the petition, which is pretty rare. So the people who are not subject are... Again, those people who can be credited with 40 qualifying quarters of work in the US. So there are some people who fall into this because, say they've had work authorization in the US for a long time...

Lani Akiona:

Okay.

Brandon Gillin:

I have a client right now who was granted temporary protectant status. This is from her home country, which is something that she can apply for based upon a Homeland Security designation that people from these countries deserve like work permits and the ability to live in the US. They don't have to go back to the country, which maybe has some instability. They can get work cards and that temporary protectant status designation can last decades. And so in this particular person, they've had work authorization for over 10 years. They've been working, paying taxes for over 10 years. Now, that person's in a position to file for a green card because of a family relationship, but she's not subject to the Affidavit of Support because she's already got the 40 qualifying credits.

Lani Akiona:

Oh, wow.

Brandon Gillin:

And then there are some children who are not subject to it, if they qualify for citizenship by virtue of their parents' naturalization. And then, like I said, those self-petitioning abuse spouses, those types of people. Yeah, that's about it for the people who are not subject, so it's a pretty narrow carve out. Most everyone is subject.

Lani Akiona:

Okay. Got it. Wow. And what's the takeaway here that you would tell the US citizen then who is petitioning for this? I guess what's the takeaway you would tell the US citizen about this Affidavit of Support that they signed?

Brandon Gillin:

Usually, I'm not in a position to make them worried. But I have to tell them that this is an obligation that could be potentially indefinite if one of those five things does not occur. I usually just give them the facts and say, divorce is not a way that's terminated. There's only five ways. And then, I make them sign a paper saying they understand fully what their obligations are. And I don't think I've had anyone in 10 years like, change their mind, say, oh, I don't want to marry this person anymore.

Lani Akiona:

Okay.

Brandon Gillin:

Because you know, they've already come to me because they want to do this. Most of them have a vague idea that they do have to financially sponsor their foreign national spouse.

Lani Akiona:

Okay. Well, the takeaway, I think would be just that, if you... The takeaway is divorce does not terminate your financial responsibility that you, the US citizen, agreed to sign by signing this Affidavit of Support.

Brandon Gillin:

Yeah.

Lani Akiona:

That is a [crosstalk 00:16:55].

Brandon Gillin:

Yeah. I have had situations where, say it's a young couple, and the petitioner doesn't make enough money to sponsor his or her spouse.

Lani Akiona:

Okay.

Brandon Gillin:

And so therefore, that petitioner needs a joint sponsor to execute their own Affidavit of Support, and say that person, one of their parents does it. I've had situations where the parents will be very concerned and say, well, I don't know about this. I don't know if I want to be obligated to support this person who maybe I've never met, or I don't like, or I don't think is a good fit for my child and then they'll start asking me what are my obligations under the Affidavit of Support? And that's a situation where I have to refer them out to another attorney because of the potential for a conflict of interest in the future.

               So as a matter of policy, immigration attorneys should never represent a primary sponsor, like the young spouse in this case, and a joint sponsor because of the potential for divorce there. There's a divorce, there becomes a conflict of interest that's inherent in that situation. And so immigration attorneys will frequently refer those people out. I've got a few people in my book who I just refer to regularly for joint sponsor inquiries. And we can't have anything to do with the joint sponsor. We can't talk to them. We can't advise them. We can't even look at the form they give to us. If it's wrong, it's wrong. If you have questions and you need help with it, you should probably talk to your own independent attorney.

Lani Akiona:

Okay. So I guess just to wrap things up though, if I'm the spouse, if I am the foreign national spouse and my US citizen is filing a divorce for me, do I then come and see you for help with enforcing the Affidavit of Support obligation?

Brandon Gillin:

Sorry. Can you say that one more time?

Lani Akiona:

Yeah. If I'm the immigrant spouse, the foreign national spouse, my US citizen husband is divorcing me, and I need someone to help me enforce this Affidavit of Support obligation, do I come and see you?

Brandon Gillin:

If I represented you in the green card application to that person in the green card application then no. Yeah. If I didn't, if I have no prior history with that person, then I could potentially talk to that person about their case. Yeah. That would be the type of person that I could talk to. I typically, I don't... Like I said, I don't talk to US citizen petitioners about this issue. And just because I think that there's very little that I could do aside from maybe helping them settle a case. But again, that's not the work that I prefer to do.

Lani Akiona:

Okay. So got it. So people can come to you if they're looking to establish, if they're looking for help with petition for green card application, and they can also come to you if they are the foreign national spouse and they're looking for help to enforce this, Affidavit of Support.

Brandon Gillin:

Mm-hmm (affirmative).

Lani Akiona:

So what's the best... How can they get a hold of you?

Brandon Gillin:

Oh. Well, my firm is called Gillin Law Group and we're located in Linwood, our physical offices. And we do Zoom meetings these days a lot with people or people come in person. Anyway, my phone number is 425-947-1130, and a general email is info at Gillin Law dot com. Gillin is spelled G I L L I N. And our website's just Gillin Law dot com.

Lani Akiona:

Well, thank you so much for your time, Brandon. This Affidavit of Support, I-864, I feel like we only touched the tip of the iceberg. It sounds something that's complicated that people need to speak with an experienced immigration attorney, like yourself, to handle this. So thank you so much for your time, Brandon, on joining us on the Akiona Law, Divorce and Family Law podcast and how it intersects with immigration law, specifically the Affidavit of Support, I-864.

Brandon Gillin:

Yeah. Happy to be here. Thanks, Lani.

Lani Akiona:

All right. Thank you, Brandon.

Brandon Gillin:

Okay.

Lani Akiona:

And that will end the recording.