The Intersection of Immigration Law and Family Law

By Nicole Lawrence Ezer

Lawyers should consult an immigration lawyer as soon as an immigration issue arises in a family law case. A noncitizen client’s ability to remain in the United States may be compromised by a separate family law matter. In some cases, timing is critical.

The status of nonimmigrant clients is nearly always predicated on a third-party sponsoring entity.

The marriage relationship. Two questions must be addressed in determining whether a marriage will be recognized for immigration purposes. The first question is whether the marriage is valid under state law. The second is whether the state-approved marriage qualifies under the Immigration and Nationality Act (INA). Both steps are required.

One of the most important requirements for filing a marriage case is that the marriage is valid for immigration purposes. Polygamous marriages, same-sex marriages, unconsummated proxy marriages, and some common law unions are not valid. Marriages (or divorces) entered into for the sole purpose of circumventing immigration law are not valid for immigration purposes. Fraudulent marriages are taken extremely seriously by the U.S. Citizenship and Immigration Services (CIS). The INA states clearly that any benefit applied for through a marriage adjudicated fraudulent will be denied, and this determination will impact any later marriage-based filings at the CIS.

The CIS will consider the following factors as triggering further inquiry or investigation as to whether the marriage was entered into solely for immigration purposes: large disparity of age; inability of petitioner and beneficiary to speak each other’s languages; family/friends unaware of marriage; beneficiary is a friend of the family; marriage is arranged by a third party; no cohabitation since marriage.

The primary issue with recent marriage fraud cases appears to be whether the federal courts have jurisdiction to review marriage fraud determinations. As courts are split on this issue, you should review the cases to see if you need to appeal an immigration judge’s denial predicated on marriage fraud. If a client seeks to apply for a benefit through a second or third marriage, inquire whether there was a previous marriage-based filing with the CIS and request information regarding that filing.

Divorce. Divorce or legal separation can cut off the alien’s eligibility for the spousal immigration benefit. The Yates Memo of March 2003 states that the adjudicator “may deny the visa petition in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the visa petition. However, if the parties have not obtained a legal separation, but simply reside separately, the petition may not be denied merely because of such separate cohabitation.”

Ostensibly, the CIS inquiry pertains to the origins of the union and intent at the commencement of the marriage, and separation should not automatically result in a denial of the case. Be warned; despite this language, counsel should bear in mind that in practice the CIS does not always generously interpret this provision, and the couple, and counsel, should expect to provide evidence that the marriage was entered into in good faith.

The client matters. In all marriage cases, the parties should be prepared to include evidence of a bona-fide marriage: financial documentation that demonstrates jointly held assets and funds; photos together; evidence of shared address; evidence of courtship and marriage; birth certificates of children from the union; proof that the parties intend to commence and continue marital union. The U.S. citizen client seeking a divorce from his foreign national spouse can generally terminate most immigration obligations with a letter of withdrawal, addressed to the CIS. However, the Affidavit of Support is not terminated.

The status of the legal permanent resident client and the ability to remain in the United States may be compromised by certain events such as a domestic violence or other criminal conviction; actual or apparent sham marriages; failure to abide by immigration laws and requirements regarding green-card status, such as failure to remove the conditions from a restricted green card; failure to notify the CIS of an address change; or abandonment of green-card status itself, whether intentional or not.

When counseling nonimmigrant clients, bear in mind that their very statuses are nearly always predicated on a third-party sponsoring entity, unless they are tourists or former immigrants who have fallen out of status. Nonimmigrants are foreign nationals who have temporarily entered the United States for a specific purpose, for a specific, finite period of time. Typically they are students, specialty occupation workers, intra-company transferees, religious workers, and performers. They often enter the country with dependents. The status of the dependent is inextricably linked to that of the principal alien.

All clients with no currently valid status in the United States share common traits: They are vulnerable to deportation; they will experience increasing difficulty acquiring and renewing identity documents and employment; departure from the United States may subject them to a bar to reentry for as long as ten years in duration; they may have U.S. citizen children that guarantee them no ability to remain in the United States; they qualify for an ever-dwindling list of benefits other than emergency relief, and they have unmet tax obligations that may affect them as they try to become “legal.” Mere marriage to a U.S. citizen on its own does not alter the status of an alien illegally present in the country. And, in some cases, it cannot cure it at all, absent additional forms of relief for which the alien qualifies. Practitioners who file immigration documents for the undocumented must ensure that the strategy to acquire the benefit sought is well thought out, and the risk to the client has been fully comprehended by both attorney and client.

The child and the family. One of the most common mistakes made with respect to noncitizen adopted children is failure to ensure that the parties have secured a “final adoption” and that the noncitizen child has resided in the physical and legal custody of the adoptive parent for at least two years. Nothing should be filed with the CIS prior to the absolute certain acquisition of both.

Family lawyers dealing with one or more noncitizen parents should have a hand in the following: location of the child’s domicile; international travel; the best interests of the child within an immigration status context; the noncitizen’s ability to care for or provide a future for the child within or without the United States; and any studies that suggest that in “non-intact families” where the socio-economic variable of immigration status is present, the affected child may have increased risk of academic, emotional, and behavioral problems.

The United States is a signatory to the international child abduction treaty of the Hague Convention on the Civil Aspects of International Child Abduction. Adults traveling with children seeking admission to the United States should expect to produce proper documentation regarding the absent parent’s knowledge of and consent to international travel. This is true for nonimmigrants entering the United States for a temporary assignment, as well as children immigrating to join a divorced parent in the United States.

For more Information About the Section of Family Law

This article is an abridged and edited version of one that originally appeared on page 339 of Family Law Quarterly, Fall 2006 (40:3). For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Periodicals: Family Advocate, 64-page quarterly magazine with three issues that include how-to articles and current trends in family law for lawyers, and a fourth “Client Manual” issue for lawyers and their clients covering aspects of the divorce process; Family Law Quarterly, a scholarly journal that offers an analytical view of family law issues, including “Family Law in the Fifty States.”

Books and Other Recent Publications: The Family Lawyer’s Guide to Stock Options; The Military Divorce Handbook; Assisted Reproductive Technology; How to Build and Manage a Family Law Practice; Creating Effective Parenting Plans.

CLE and Other Educational Programs: The annual Trial Advocacy Institute offers an intense learning experience; for more experienced lawyers, there is an Advanced Institute. Other CLE programming includes teleconferences, spring and fall conferences, and our popular Hot Tips program at the ABA Annual Meeting. Past program materials are available for purchase on our website.

Member Benefits: Discount on Family Law Section publications and CLE materials; Committees on topics such as adoption, custody, law practice management; Case Update, a monthly digest of family law case decisions around the nation; monthly eNewsletter.

is counsel at Sutherland Asbill & Brennan, LLP, in Houston, Texas, and certified in immigration and nationality law.

Copyright 2007

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