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 conditional residence.

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 residence.

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 obligation.

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 adultery.

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.