While routine separation and divorce cases are naturally
complicated, family law matters can become extremely difficult when immigration
law issues are involved. Family law attorneys should consult with immigration
practitioners when one of the parties is not a U.S. citizen, especially when
one of the issues below makes an appearance. Attorneys should always ask clients
about the parties’ citizenship status and request a copy of immigration-related
documents submitted to or received from the government.
Separation and Divorce:
Bar to Permanent Residence
When a foreign national seeks to immigrate to the United
States and obtain permanent residence (i.e., the “green card”),
a U.S. citizen or permanent resident spouse can sponsor the immigrant based
on their marriage. If the marriage is less than two years old, the foreign
national will only receive conditional residence status. The parties can seek
the removal of the conditional nature of permanent residence by jointly filing
a petition with immigration officials prior to the second anniversary of receiving
Problems arise for the foreign national seeking to remove
conditional residence when the marriage is in trouble. If the parties have
divorced or annulled their marriage, the foreign national will lose conditional
residence and not be able to obtain permanent residence through the established
joint petition process. Instead, the foreign national must file a waiver of
the joint petition and allege an appropriate basis for the waiver, such as
that the marriage was entered into in good faith and then terminated. Immigration
officials will closely scrutinize the waiver and interview the foreign national
to ascertain if the marriage was bona fide.
If the parties have separated but not obtained a divorce,
the foreign national cannot file a waiver until the divorce is finalized. During
the separation period, the foreign national might face deportation through
formal removal proceedings. An immigration court judge can grant a continuance
of the proceedings until the divorce is final, but the decision is discretionary.
Whether the parties have separated or remain together, if
the U.S. citizen or permanent resident spouse refuses to file the joint petition
or attend an interview with immigration officials, the foreign national will
lose conditional residence status. Family law practitioners should carefully
weigh advice offered to their clients when one of the parties has conditional
Spousal Support Issue:
Affidavit of Support
Immigration of a foreign national can also require that a
U.S. citizen or permanent resident make a formal pledge as financial sponsor
for the new immigrant. This pledge is known as the “Affidavit of Support.” When
immigration is based on a marriage to a U.S. citizen or permanent resident,
the Affidavit of Support is usually executed by the citizen or resident spouse.
The Affidavit of Support obligates the sponsor to provide
financial support for the immigrant. If the sponsor fails to provide support
and the immigrant applies for federal or state means-tested public benefits,
the sponsor is liable to reimburse the federal or state government or private
entity acting at government direction. Current means-tested benefits include
Supplemental Security Income, Medicaid and Temporary Assistance to Needy Families.
A sponsor is liable for reimbursement until the immigrant
has worked (or can be credited with) 40 quarters of work (10 years) that qualify
for Social Security coverage. The obligation can end sooner if the immigrant
dies or gives up permanent resident status. Divorce does not terminate the
Family law attorneys whose clients have sponsored their spouses
must consider the ongoing impact of this obligation when the parties separate.
The spouses cannot contractually agree to remove the obligation because the
affidavit is a contract with a third party (the government).
Adultery and Child Support Nonpayment:
Bars to Citizenship
Permanent residents are eligible to become U.S. citizens
through a process called naturalization. Most permanent residents must wait
for five years before being eligible to naturalize, but those married to U.S.
citizens are only required to wait three years.
In order to naturalize, applicants must demonstrate that
they possess good moral character. When adultery is the cause of the end of
the marriage, it can bar a finding of good moral character. Attorneys should
evaluate the immigration impact of pursuing divorce based on the ground of
Failure to make alimony and child support payments can also
preclude a finding of good moral character, so family law attorneys should
advise their permanent resident clients of the added dangers of falling behind
on payments. In addition, when practitioners settle or litigate cases that
result in retroactive support obligations, such arrearages may need to be explained
to immigration officials to avoid the impression that the applicant has failed
to make timely payment.
Jonathan S. Greene is a member of Howanski & Greene LLC in Towson. He
concentrates his practice in immigration and family law.