When Immigration Issues Complicate Your Divorce

By Published On: August 23, 2016

Many different trends have increased the number of international marriages.  For example, more students take a college semester abroad, and more multi-national business interests post their U.S. employees in other countries, causing Americans to spend extended periods of time abroad.  What if the result of such an extended stay is a cross-cultural marriage, and the American spouse then sponsors the spouse from the other country for U.S. immigration purposes?

A husband who is a U.S. citizen found himself in such a situation.  He fell in love with an Italian citizen, and he married her in Italy.  After the wedding the couple moved to the U.S. to start their life together, and the husband sponsored his new wife for U.S. legal permanent resident status (“green card”).  As part of the application, the husband signed an Affidavit of Support in which he swore, under oath, that he would be financially responsible for his wife and that she will not need public benefits to support herself once the wife obtains legal permanent resident status. The wife was granted a “conditional” resident status for two years.

As the couple settled in the U.S., the husband began to realize that he carried an unwelcome degree of responsibility for his new wife. In addition to her financial support, he was dealing with emotional, social and cultural issues as his wife adjusted to life in the United States.  She often complained of feeling isolated and lonely in her new setting, far away from home and family.  In addition, she was put off by what she viewed as the fast-paced, superficial lifestyle which was so different from the life she knew in her own country.  And she was having a great deal of difficulty in her job search, finding interviews with potential employers to be terrifying.

Worst of all, the husband began to suspect that his wife did not have true feelings for him and that her decision to marry him was driven by her desire to obtain a green card.  Feeling frustrated and betrayed, he sought legal advice to understand his options.

Some pitfalls:

  1. The husband was surprised to learn that he would continue to be bound by the Affidavit of Support that he had signed even if he and his wife separated and divorced.  He had viewed the Affidavit as mere paperwork, not as something by which he would be legally bound even if he and his wife were no longer together.
  1. The husband’s suspicions caused him to want to damage his wife’s immigration prospects although he wasn’t sure what the implications were of this course of action.
  1. Perhaps most importantly, the husband found that he had not thought through the complexity of his situation given the intersection between immigration law and divorce law in the United States.

What to do?

At his initial interview with a divorce attorney who had experience representing international clients, the husband gained an understanding of the relevant rules and statutes.  Specifically, he learned that his new wife’s “conditional” green card was largely dependent on their marriage continuing on a positive footing for two years.  After the two year conditional period, it was expected that he and his wife would jointly request the removal of the condition in order to make the wife’s residency status permanent. He learned that his wife’s permanent resident status could be in jeopardy if the marriage did not survive the two-year mark.

The husband also learned that by executing the Affidavit of Support, he had created a contractual relationship not between himself and his wife, but rather between himself and the government.  If he failed to provide a certain level of support to his wife while she has permanent resident status, any federal, state or local government entity could bring an enforcement action against him.

Finally, the attorney helped the husband talk through and understand the nature of his negative feelings towards his wife, and together they identified options of moving forward with separation and divorce without sabotaging the wife’s green card application.  Armed with relevant information and a number of options, the husband and his attorney were able to develop a strategy which enabled the husband to proceed in the best possible way.

 


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