Bar News - July 16, 2014
Federal Practice & Bankruptcy: Identifying the Immigration Consequences of Divorce
By: Miguel Nieves
Divorce always brings up a multitude of financial, emotional and personal issues, but several unique issues arise when only one of the spouses in a divorce is a US citizen. Divorce and immigration practitioners alike must be aware of the impact that divorce will have on each spouse and must advise their clients accordingly.
The US Citizen Spouse
Perhaps the biggest surprise to a divorcing US-citizen spouse is the fact that his or her obligation to financially support the immigrant spouse does not end with a divorce. The US citizen will remain financially liable for support because of the affidavit of support (Form I-864) that he or she signed when petitioning for the immigrant spouse.
When you sponsor an immigrant spouse, you promise the US government that you will financially support your spouse and that your spouse will not become a public charge, meaning your spouse will not receive public assistance from the government.
If you fail to financially support the immigrant spouse after divorce, the immigrant spouse may sue for breach of contract, based on the affidavit of support. It is important to understand that the affidavit of support is indeed a contract, which is legally enforceable. The financial support standard remains 125 percent of the federal poverty guidelines for household size, as required under the affidavit of support.
The US-citizen spouse will not need to worry about the potential of litigating the standards used in family court in determining an alimony award. If successful, along with being awarded financial support of 125 percent of the federal poverty guidelines, the immigrant spouse may also be awarded attorneys fees and interest.
Another concern is that the US-citizen spouse also faces the potential of being sued by the US government. In many instances, the immigrant spouse in need of financial assistance chooses to receive assistance from public agencies rather than request it from the US-citizen spouse. In this scenario, the government is able to sue the sponsor and collect enough money to reimburse the agency that provided the benefits.
The financial obligation, of course, does not last forever. There are several triggers which will terminate the obligation. They are: 1) the immigrant spouse becomes a US citizen; 2) the immigrant spouse has worked, or can be credited with, 40 quarters of coverage under the Social Security Act (about 10 years); 3) the immigrant spouse no longer has lawful permanent resident status and has departed the US; 4) the immigrant spouse becomes subject to removal, but applies for and obtains a new grant for adjustment of status, based on a new affidavit of support, if one is required; or 5) the immigrant spouse dies.
The Immigrant Spouse before Adjudication of the I-485
(Adjustment of Status)
The immigrant spouse may ordinarily obtain permanent resident status through the sponsorship of his or her US-citizen spouse as a result of the marriage. However, if the marriage is terminated through divorce or annulment, and the adjustment of status application has not yet been granted, the immigrant spouse is no longer eligible to adjust status based on that marriage.
In essence, a divorce terminating the legal marriage also terminates the immigrant spouse’s eligibility for US permanent resident status on the basis of that marriage. In this instance, the I-485 (adjustment of status application) will be denied. As such, the accompanying documents and obligations are also terminated (specifically, any obligation that would have arisen if the application to adjust status was allowed, i.e. the affidavit of support obligation).
The Immigrant Spouse with Conditional Resident Status
If an immigrant spouse and US-citizen spouse obtain an approved adjustment of status, but have been married for less than two years, the immigrant spouse will be granted conditional residency. This conditional residence status is granted for two years.
To remove the conditions and be granted permanent resident status, the immigrant spouse and US-citizen spouse must jointly file a petition to remove the conditions (Form I-751). At that time, if the spouses are still married and can prove the marriage is in good faith, then the immigrant spouse will receive permanent resident status. However, if the marriage was terminated prior to removing the conditions, then the immigrant spouse’s conditional resident status may be revoked.
The divorced immigrant spouse who has conditional residency must now file the petition to remove conditions on his or her own and request a waiver of the joint filing requirement. The conditional resident may file the application based on any of following: 1) the marriage was entered in good faith, but the petitioning spouse is dead; 2) the marriage was entered in good faith, but terminated through divorce or annulment; 3) the marriage was entered in good faith, but the conditional resident was subject to extreme cruelty or battery; or 4) the termination of conditional status and deportation would cause extreme hardship.
If the immigrant spouse is able to prove any of the above, he or she will be granted permanent resident status. Regardless of the waiver option chosen, the immigrant spouse must be prepared to give detailed and extensive evidence supporting the request for waiver.
It is also important to note that the application to remove conditions must be filed during the 90-day period immediately before the conditional residency expires. However, if filing with waiver, the petition may be filed at any time between being granted conditional status and being removed from the United States.
The Immigrant Spouse with Permanent Resident Status
In the situation where the immigrant spouse has already obtained permanent resident status, he or she should not be concerned that the divorce will affect their immigration status. At this point in the immigration process, it does not matter if the immigrant spouse is divorced or remains married. Whether divorced or married, a lawful permanent resident can lose his or her status for numerous reasons, but not specifically due to divorce.
One area, however, in which the divorce will affect the immigrant spouse is for naturalization purposes. Whereas the immigrant spouse who obtained residency through marriage is eligible for naturalization after three years if still married to the US-citizen spouse, if a divorce is granted before becoming naturalized, he or she will instead have to wait five years to apply for citizenship.
Miguel Nieves is an attorney with Patricia S. Fernandez & Associates. Nieves is licensed in New Hampshire, Massachusetts and Maine and practices in domestic relations and immigration.