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Bar News - November 18, 2015

Family Law: US Immigration Through Marriage and Divorce


Family law practitioners are all too familiar with the classic love story gone wrong. You know the tale – boy meets girl, they fall in love and get married, they develop some version of “irreconcilable differences,” and they get divorced. But what happens if one of the parties is not a US citizen? How about if the story starts with “girl meets girl” or “boy meets boy”?

To understand the impact of these plot twists, you must first understand the available options for a foreign national (FN) intending to marry a US citizen (USC). This limited overview should provide a basic understanding of the necessary immigration considerations for your client.

Generally, there are two ways for an FN to immigrate to the US through their USC spouse: adjustment of status (AOS) inside the US, and consular processing (CP) outside the US. AOS involves the filing of certain applications with the US Citizenship and Immigration Services (USCIS), while CP involves filings with USCIS and the Department of State (DOS). If the FN is in the US in a non-immigrant status, they can pursue AOS. If the FN is abroad, they must pursue CP.

AOS involves the USC filing an I-130, Petition for Alien Relative, with USCIS, in conjunction with the FN filing an I-485, Application to Adjust Status. Within several months of filing, the FN and USC will be interviewed together by USCIS to verify that the marriage is bona fide. If approved, the FN will become a lawful permanent resident (LPR).

During filing, the USC must also execute an Affidavit of Support, a form through which they demonstrate their ability to support their spouse financially, at a level above federal poverty guidelines. The affidavit remains in effect from the time the spouse becomes an LPR until they become a USC or have worked 40 quarters in the US.

Q: How do death and divorce impact the Affidavit of Support?

A: The Affidavit is destroyed by death, but not divorce. Therefore, an LPR can sue the USC for support as long as the affidavit remains in effect.

CP differs from AOS in that instead of filing an I-485, the FN files a DS-260, Immigrant Visa Application, electronically with the DOS. Additionally, the FN must appear for an interview at the US Consulate in their home country. If approved, the FN will receive an immigrant visa, which they can use to immigrate to the US. Upon arrival, the FN will receive their permanent resident card (i.e. green card). During CP, the USC must still file an I-130, as well as an Affidavit of Support.

Q: How does the process work for same-sex couples?

A: Beginning July 1, 2013, USCIS began accepting I-130 petitions on behalf of same-sex couples. Due to this change, the same immigration procedures now apply for all couples, regardless of gender.

In some instances, an FN can only become a conditional permanent resident (CPR) based on the marriage to a USC. If, at the time of AOS interview or immigrant visa entry, the couple has been married for less than two years, the FN’s permanent resident status will be approved conditionally (i.e. for two years). Within 90 days of the expiration, the FN and USC must together file an I-751, Petition to Remove Conditions on Residence, with USCIS, establishing that they entered into the marriage in good faith and presently remain married. If approved, the conditions will be removed from the FN’s permanent resident status and they will become an LPR.

Q: How does divorce impact the I-751?

A: If the FN and USC divorce prior to or during the I-751 process, the FN can self-petition and request a waiver of the joint filing requirement. The FN will still need to demonstrate that the marriage was entered into in good faith.

After becoming an LPR, the FN’s immigration process is complete, unless they wish to become a USC. To become a USC, the FN must file an N-400, Application for Naturalization, with USCIS. To be eligible for filing, the FN must have been a green card holder for at least five years. Within several months of N-400 filing, the FN will be interviewed by USCIS to verify that they can speak, read, and write English, and possess limited knowledge of US civics. If approved, the FN will need to attend a USCIS oath ceremony. Only after taking the US oath of allegiance will the FN become a USC.

Q: How does the process differ for a FN married to a USC?

A: If the LPR has been living with their USC spouse since obtaining their green card, they can file for naturalization after three years instead of five. For family law practitioners, it is critical to understand the impact of marriage and divorce on your client’s immigration status.

Autumn Misiolek Tertin

Attorney Autumn Misiolek Tertin joined GoffWilson in September 2014, and her practice focuses solely on immigration law, both in the employment-based and family-based sectors. Prior to joining the firm, she practiced in Massachusetts, where she primarily focused on PERM labor certifications, immigrant petitions, and adjustment of status applications.

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