General Practice, Solo & Small Firm Division

A service of the ABA General Practice, Solo & Small Firm Division

Law Trends & News

Practice Area Newsletter

American Bar Association - Defending Liberty, Pursuing Justice

SPRING 2011

Vol. 7, No. 3

 

FAMILY LAW

 

Will Divorce Jeopardize the Green Card?

By David J. Hart and Jordana A. Hart

Immigration status-related issues may further complicate a case.

As a family law practitioner, you see firsthand the anguish of divorce in battles over money, children, and property, tinged by feelings of bitterness and failure. For a foreign national married to a United States citizen, the effects of divorce may grow exponentially from there.

The effects of divorce or domestic violence on the immigration status of a spouse who is not yet a U.S. Lawful Permanent Resident (LPR) or “green card” holder are difficult to fathom for attorneys not familiar with family-based immigration law. That some foreign nationals (FNs) may need an interpreter and have a culturally ingrained suspicion of authority figures—including lawyers— could heighten barriers to effective advocacy.

The Basics

Under the U.S. Immigration and Nationality Act (INA), a U.S. citizen (USC) who marries an FN can sponsor for permanent residence that foreign national and his or her children under age 21 (if the couple married before the children turned 18) by filing an alien relative petition (Form I-130), with the spouse and each child concurrently filing permanent residence applications (Form I-485) with the U.S. Citizenship and Immigration Services (USCIS), the former INS. The I-485 applicants also can get permission to work (Form I-765) and, in certain cases, permission to travel abroad (Form I-131) while their residence applications are pending.

In the case of a spousal petition, spouses must prove that they entered the marriage in good faith, and not solely for immigration benefits, by offering evidence of the bona fides of the marriage, including but not limited to children’s birth certificates, joint property holdings, joint lease, health and car insurance and bank accounts, and joint tax returns, etc. The couple is subject to an in-person interview by a USCIS officer to determine the bona fides of the marriage. The officer can approve the petition that very day or send a letter of concern based on the results of the interview. An interview that raises suspicions of a sham marriage will lead to a notice of intent to deny—or the couple may be called for a second or even third interview, during which they can be questioned separately, sometimes for several hours. This is also known as a “Stokes” interview. Stokes v. INS, 393 F. Supp. 24 (S.D.N.Y 1975).

The USCIS penalties for a fraudulent marriage are up to $250,000 in fines and/or up to five years in prison for the USC and deportation of the FN with a bar of 10 years to seeking re-entry into the United States. INA § 205 and § 237(a)(1)(G).

Public Charge Provisions

Under INA §§ 212 and 213A, the U.S. petitioner must file a binding Affidavit of Support (Form I- 864) that guarantees support of the FN spouse and children, if any, at no less than 125 percent of the federal poverty income level in force at the time of filing. (The 2009 minimum income level for a family of three is $22,887.) A joint sponsor (who must be a USC or LPR, age 18 or older, and domiciled in the United States) who is willing to accept liability for the FN can file a joint affidavit with the petitioner if the latter fails to show sufficient income. Even if a petitioning spouse has insufficient income, he or she must file an affidavit. Both the petitioner and sponsor, if any, must file a letter from their employer, pay stubs, a federal tax return for the most recent year, and other evidence of cash and assets to support the affidavits.

Liability ends when the FN becomes a USC or has worked 40 qualifying quarters. If the spouse has already worked, or can be credited with at least 40 qualifying quarters, an affidavit is not required. Note that the contract can be enforced even if the relationship ends in divorce or legal separation. Exceptions are allowed for widows and widowers of USC spouses, as well as battered spouses of USC and LPR spouses.

Conditional Lawful Permanent Residence

If at the time of the marriage interview the couple has been married for less than two years, the USCIS will approve the immigrant status for two years only, known as “conditional permanent residence.” Specifically, the FN will receive a “green card” (Form I-551) that expires on the second anniversary of the granting of permanent residence (not on the second anniversary of marriage). To convert to a permanent status, the petitioner and beneficiary spouse must file a Joint Petition to Remove Conditional Residency (Form I-751) up to 90 days prior to the second anniversary of the granting of residence status. The petition must be accompanied by evidence that shows that the legal relationship of marriage continues (since the initial approval of conditional status), such as tax returns, home lease or deed, children’s birth certificates, joint insurance, etc. Increasingly, an interview with the USCIS is required to remove conditional status.

Failed Marriages

Given the often-harsh consequences of immigration law on families generally, it is surprising that the INA provides relief for a FN spouse who entered a marriage in good faith with a USC only to see it end in divorce. For example, if a marriage was entered into with a genuine desire and intent for a marital relationship, the Board of Immigration Appeals (BIA) has held that subsequent failure is not necessarily a reason for USCIS to deny the I-130 petition or I-485 adjustment-of-status application. Matter of Adalatkhah, 17 I&N Dec. 404 (BIA 1980). Even if the parties are separated at the time of the initial I-485 marriage interview, the USCIS should not deny the application as long as the separation is informal, the marriage has not been legally terminated, and the marriage was entered in good faith.

However, the INA establishes a legal presumption that a marriage is fraudulent, i.e., it was entered into solely for immigration benefits, if USCIS approves permanent residence before the second anniversary of the marriage and the marriage ends within two years of the FN obtaining conditional LPR status through the union.

At the stage of removing conditional residence, if the marriage is legally terminated or the petitioning spouse refuses to sign the joint I-751 petition, the conditional resident may file the form on his or her own, based on any of following grounds that, if proved, serve to waive the joint filing requirement: (1) The petitioning spouse is dead; (2) the marriage was contracted in good faith, but terminated through divorce or annulment; (3) the conditional resident was subject to extreme cruelty or battery; or (4) the termination of conditional status and deportation would cause extreme hardship. INA § 216 (c)(4).

In a recent clear-cut example of the second ground for a waiver, the USCIS approved the permanent LPR status of a conditional resident who, before the second anniversary, divorced her USC husband after he fathered a child with another woman. The conditional resident submitted an affidavit and one from her ex-husband, as well as the baby’s ultrasound picture she discovered in her husband’s car with the other woman’s name on it, and the child’s birth certificate. She submitted evidence that she and her husband had entered the marriage in earnest. At the time of her application, she had already remarried, but the experience that led to her divorce was so compelling that USCIS waived the joint filing requirement and approved her permanent residence without even an interview.

Domestic Violence

Under provisions of the Battered Immigrant Women Protection Act of 2000, the INA provides relief for the abused FN spouse (and children) of a USC or LPR, allowing petition for immediate relative classification without a spouse’s knowledge or consent. There is no INA definition of “battered” or “abused” spouse; it is proved on a case-by-case basis with documentary evidence. A spouse–parent also can petition on behalf of his or her children who have been abused by the USC or LPR spouse, regardless of whether he or she is the biological parent.

The battered FN spouse files Form I-360 with the USCIS to show:

  • The marriage was entered in good faith; and
  • During the marriage, the FN spouse or children were battered or subject to extreme cruelty by the USC or LPR spouse; and
  • The FN had resided in the past or present with the USC or LPR spouse; and
  • The FN’s current residence is in the United States or, if living abroad, the abusive spouse is a U.S. government employee or military servicemember, or subjected the FN to battery or extreme cruelty in the United States; and
  • FN is a person of good moral character; and
  • Abusive spouse was a USC or LPR at the time battered spouse filed the petition and at the time of its approval, or was a USC or LPR who lost status as a result of domestic violence.

The “U” Visa

Prior to 2000, a battered spouse had relief under the INA only if he or she was married to a USC. Today, a battered spouse whose lawful presence in the United States derives from the FN spouse who is, for example, on a student or work visa, can escape the abuser without having to leave the United States by seeking protection under the U “victim of crime” nonimmigrant visa provisions of the Violence Against Women Act (VAWA). The victim must document that the crime took place in the United States and caused substantial physical or emotional harm. A law enforcement officer involved in the case must complete and sign a form that confirms to USCIS that the crime occurred, as well as the fact that the FN “has been helpful, is being helpful, or is likely to be helpful” to a federal, state, or local law enforcement officer, prosecutor, judge, or other investigator. INA § 101 (U)(i)(III). Domestic violence is just one of several crimes for which the U visa is available to FN victims.

In the absence of domestic violence, divorce automatically terminates the FN derivative spouse’s (i.e., the spouse whose status derives solely from marriage to the foreign student or worker who is considered the principal visa holder) lawful presence in the United States. However, the derivative spouse is free to change a nonimmigrant visa classification while in the United States, but must file the application prior to losing spouse-derived status. For example, if the divorcing FN holds F-2 visa status as the spouse of an F-1 foreign medical student and wants to remain in the United States after the divorce is final, she would need to determine whether an employment-based visa or other type of visa classification is available to her. If so, she can change her status by filing an application (Form I-539) with USCIS. As long as she does so before the divorce is final (on which date she automatically loses her status), she remains in legal status in the U.S. pending a USCIS decision. Depending on the status to which she changes, she may be able to pursue permanent residence on her own.

Immigration law is a complicated puzzle of federal rules, statutes, and procedures that are subject to change at any time by Congress, USCIS, and various other federal agencies. If immigration issues surface in a divorce case, consulting with or partnering with family-based immigration cocounsel is a very good idea.

David J. Hart is founder of David. J. Hart, P.A., an immigration law firm in Miami, Florida. He is a member of the Florida and New York Bar associations and the American Immigration Lawyers Association. His expertise is in family immigration law, as well as business, professional, and investment cases for foreign national companies and individuals throughout the U.S. and abroad. He can be reached at dhart@immigrateusa.com or at www.immigrateusa.com. Jordana A. Hart is an associate with the firm. She is licensed in Massachusetts and is a member of the American Immigration Lawyers Association. She limits her practice to employment-, family- and investment-based immigration cases, as well as waivers of inadmissibility before consular sections worldwide. She can be reached at jhart@immigrate usa.com and at www.immigrateusa.com.

Published in Family Advocate, Vol. 32, No. 4, (Spring 2010) p. 20–23. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Sidebar: Family Matters

  • A child born in the United States to FN parents cannot petition for permanent residence for his parents until reaching age 21.
  • An LPR can file for U.S. citizenship five years after being granted permanent resident status, but waits only three years if status was acquired through marriage to a USC. The two-year period of conditional resident status counts toward the three-year wait to naturalize. To apply in three years, LPR must still be married to and residing with the USC spouse. If divorced, LPR must wait the full five years to apply.
  • Proxy marriages for immigration purposes are not recognized unless consummated; common law and incestuous marriages are recognized if they are legal in the country or U.S. state in which they occurred.
  • Same-sex and polygamous marriages are not recognized, even if valid in the foreign country or U.S. state in which they were celebrated.

Sidebar: Cohabiting Couples

To find out how immigration issues affect cohabitation and same-sex marriages, see “Why Can’t My Wife Get a Green Card?” by Virginia E. Carstens, Family Advocate, Winter 2010 (Vol. 32, No. 3) at 38.

© Copyright 2011, American Bar Association.