Family-Sponsored Immigration

The inadequacy of the In-Country Refugee/Parole Program for Central American Minors (CAM)

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On December 1, 2014, a new program was announced by the U.S. Department of State (DOS) in response to the “surge” of immigrant minors at the border during the summer of 2014. The program implemented by U.S. Citizenship and Immigration Services (USCIS) is now called CAM which stands for the Central American Minors Refugee/Parole Program. It is specifically designed to help minors living in Honduras, El Salvador and Guatemala who have parents lawfully residing in the United States to escape the violence and turmoil in their native country.  It is dubbed “a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to the United States.” Information on who is eligible to apply for the program and a description of the process can be found at the following link: http://www.uscis.gov/humanitarian/refugees-asylum/refugees/country-refugeeparole-processing-minors-honduras-el-salvador-and-guatemala-central-american-minors-cam

As of April 23, 2015 the program has only received 461 applications, none of which have been adjudicated. The estimated processing time for an application is 9 months to a year. In the mean time there are no protections offered to the children awaiting adjudication. The “safe, legal, and orderly alternative” characterization of the program belies its true nature.  The reality is that these children do not have time to wait 9 to 12 months, and even to a casual observer this seems absurd. Essentially the U.S. government is saying, “You say you fear for your life because you have already been persecuted or you have a well-founded fear of future persecution? That’s nice. Please return to your scary life for 9 to 12 months while we look into that. And I’m sorry, even though speaking to U.S. government officials could expose you to even more danger, we have no protection to offer you. But thanks for applying!”

And let’s further discuss that 461 figure mentioned above. That number seems awfully low compared to the surge of thousands who came in the summer of 2014 and are still coming to our southern borders seeking refuge. It might be said that the program is inadequately publicized but the experience in our office has been that plenty of people in the Salvadoran, Honduran and Guatemalan community are aware of the program and its benefits.

The issue comes from the lack of funding provided to the local designated resettlement agencies here in the United States who are supposed to be helping the parents here in the United States to submit their applications.  During a recent teleconference hosted by USCIS on March 31, 2015, several callers were directors or employees of these resettlement agencies stating that they cannot meet the burden placed upon them to fill out the initial application because they have no budget to support this program. We have heard this complaint from some of our own clients who state that they called 3 or 4 resettlement agencies here in the Washington, D.C. area and none of them were able to assist in filling out this application. How is this program supposed to provide the necessary relief when clients can’t even get basic access to submit their applications?

Furthermore this program has been designed to cut attorneys out of the loop so that the parents who want legal representation during the process do not have that option. The application form can only be accessed and completed with the assistance of a designated resettlement agency, which has no funding to staff someone to assist you with filling out the application. As attorneys all we can do is advise our clients on the potential strength of their children’s claim but at this point there seems to be no other avenue for us to intervene or assist.

At best this program is a loose band-aid for the current crisis at the southern border. At its worst it puts the lives of the refugees at risk because it provides no protection for those who speak to U.S. government officials in connection with these applications. We hope that Congress will heed the appeals of the immigrant advocates who recently testified before them regarding this program and will take active steps to improve it. To view the hearing please click on the following link: http://www.judiciary.senate.gov/meetings/eroding-the-law-and-diverting-taxpayer-resources-an-examination-of-the-administrations-central-american-minors-refugee/parole-program

Edgardo and Maria’s intimate details: Couple’s immigration interview gone wrong

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Janet Leigh Screaming in Psycho Shower Scene

A client I will call Edgardo is a United States citizen with roots in Ecuador. On a trip home after his divorce, he met and fell in love with a wonderful woman, and decided to marry her and sponsor her for permanent residence, so that they would be able to share their life in the United States. “Maria” is in her late twenties and has a child from a previous relationship; Edgardo is in his mid forties. Edgardo filed an application for a “fiancee visa,” which took about six months for the first tier of approval. It was then sent to the United States consulate in Ecuador for further review. The consular officer who met with Edgardo’s fiancee, “Maria,” told her that Edgardo would need to appear in Ecuador for an interview.

Edgardo took time off from work, dropped what he was doing, and traveled to Ecuador. He brought with him photographs of the couple’s vacation in Panama, Western Union receipts showing that he had been sending money to help support his fiancee, and copies of dozens of emails the couple had exchanged. The consular officer declined to review the evidence, and instead separated the couple and asked them questions such as “When was the first time you made love with your fiancee?” “Why did you wait so long?” “How many times did you make love yesterday after you picked him up from the airport?” “Who took a shower first afterwards?”

The couple was mortified, which caused them to give slightly different answers. Maria’s application was denied because the couple “was unable to demonstrate the bona fide nature of their relationship.”

I advised the couple to skip the appeal, but instead to simply get married and try again. They arranged for a quick marriage, attended only by a few friends and family members. We fully disclosed that the reason for the quick, sparsely attended wedding was the couple’s desire to submit a new application so that they could live together in the United States.

We again provided extensive documentation of the couple’s relationship; photographs of their wedding and honeymoon (another trip to Panama), additional Western Union receipts showing that Edgardo has sent thousands of dollars to help support Maria and her child, and additional emails between the couple.

When Maria appeared for her interview, the consular officer again declined to review the evidence, but instead opined that Edgardo was too old for Maria. The application was denied.

This time we appealed and finally won the case.

Somewhere along the way, I had written to fourteen State Department officials, indicating my feeling that it was inappropriate, and demonstrated inadequate training, for consular officers to ask visa applicants about the intimate details of their relationships. The only response I got was from the chief consul in Ecuador, advising me that these questions were “the only way” to find out if a relationship is bona fide. For the record, as a veteran of hundreds of interviews for marriage-based cases, I have observed hundreds of ways that properly trained officers approach this issue.  Never once have I heard an officer ask questions like this.

It took Edgardo almost five years to be able to bring his wife to the United States. We don’t know how many years it will take for the couple to live down the trauma of being questioned by a stranger about the intimate details of their relationship.

Divorce does not eliminate your obligations under Affidavit of Support (Form I-864) even if you have a prenup waiving alimony

By | Family-Sponsored Immigration | 15 Comments
Photograph: Mike Kemp/Getty Images

Photograph: Mike Kemp/Getty Images

Back in July 2012, the 7th Circuit held that even if an immigrant spouse is sitting at home without seeking work, a sponsoring spouse who signed the Affidavit of Support (Form I-864) still has a duty to support the immigrant spouse at 125% of the Federal poverty level. In other words, there is no duty of mitigation with respect to obligations under the affidavit. The court reasoned that the required level of support is meager, so the sponsored immigrant has a strong incentive to seek employment, apart from any legal duty. The court also clarified that Form I-864 presently makes explicit that “divorce does not terminate your obligations under this Form I-864,” a fact which was merely implicit back in 1999. See Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).

Most recently, the U.S. District Court of Maryland held that Form I-864 is enforceable even if a couple had previously signed a prenup waiving their right to alimony. Specifically, the Court found that Form I-864, imposed by federal law, is separate from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement. The Court quoted a few decisions holding that “the parties by their conduct may waive the requirements of a written contract’,” and explained that, “[b]ecause Defendant signed the ante-nuptial agreement before he signed the Form I-864, the sequence of Defendant’s actions leads to the conclusion that the Form I-864 waived that portion of the ante-nuptial agreement concerning spousal support.” See Toure-Davis v. Davis, Dist. Court, D. Maryland 2014. 

So to summarize the lessons learned from the above decisions:

  1. divorce does not end a sponsoring spouse’s obligations under Form I-864
  2. the sponsoring spouse is still obligated to support the immigrant spouse, even if the  immigrant spouse is not seeking work
  3. the sponsoring spouse is still obligated to support the immigrant spouse, despite a prenup waiving alimony rights

The bottom line is that, although Form I-864 is a necessary document in the adjustment of status process, it can have very real legal consequences and should not be signed without a full understanding of the obligations it creates in the sponsor, whether it be the immigrant’s spouse or someone else. The federal regulations provide that “[e]xecution of an affidavit of support . . . creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, State, or local government agency or private entity that administers any means-tested public benefits program.” 8 C.F.R. § 213a.2(d) (2013). This means that federal, state, local, and even private agencies can go after the sponsor for reimbursement in the event that they provide means-tested public benefits to the immigrant spouse.

There are only 5 circumstances under the law whereby the sponsor’s financial obligation terminates:

  1.  the sponsored immigrant becomes a citizen of the United States;
  2. the sponsored immigrant has obtained 40 quarters of coverage under Title II of the Social Security Act;
  3. the sponsored immigrant ceases to hold LPR status and departs the United States;
  4. the sponsored immigrant becomes subject to removal but applies for and obtains a new grant of adjustment of status; OR
  5. the sponsored immigrant dies. 8 C.F.R. § 213a.2(e)(2)(i)(A)-(E).