- Is your client an alien?
- Is your client’s immigration status based on the marriage? (Or, can legal status be obtained at some future date based on the marriage?)
- If so, will a dissolution of that marriage result in your client losing that status or future eligibility?
1. Is Your Client an Alien?
By definition, "an alien is anyone who is not a citizen or national of the United States" (Section 101(a)(3) of the Immigration and Nationality Act (INA), 8 USC §1101(a)(3)). Under the 14th Amendment of the U.S. Constitution a U.S. citizen is either a person born in the territory of the United States (e.g.: one of the 50 states, Washington, D.C., Puerto Rico, etc.) and subject to its jurisdiction, or those who have been naturalized. This includes the children of naturalized parents, when both parents, or in certain circumstances one parent, naturalized when the child was under 18 years of age. Nationals are people born in certain trust territories of the United States (e.g.: Guam, American Samoa, etc.). Everyone else is an alien.
Aliens, at least once they set foot in the United States, come in three categories: immigrants, non-immigrants, and undocumented. Immigrants are those who intend to remain permanently in the United States and non-immigrants are those who are here egally here temporarily. The "undocumented," a loose term which I prefer to "illegal aliens," can either be persons who came here without being inspected (e.g.: crossed the border surreptitiously), or those who came legally as non-immigrants but who have overstayed the time they were legally granted to remain here.
Immigrants who are legally in the country are called "lawful permanent residents" and are issued alien registration cards (official "Form I-551" or the older and now expired "Form I-151"), which are commonly called "greencards" - because in the early 1950's they were a sort of aqua-marine blue color. In fact, for many years they have been white in color with red, and blue highlights, on a security coded laminated card that contains a picture and fingerprint of the alien. Unfortunately, there are several other cards legally issued to aliens. They include the "Temporary Resident Alien" (Form I-688) or "Employment Authorization" (Form I-688A, or I-688B) which resembles the alien registration card but are only evidence of a temporary right to remain in the country.
An alien, as well as his spouse and minor children, can be granted permanent resident status under several different grounds. Primarily the goals of family reunification and the utilization of skilled and professional workers are the motivating forces behind current law. Also many refugees and asylees are granted "greencards". But there are as many obscure categories ranging from American Indians born in Canada to certain religious workers who also qualify (see Appendix II, Outline on Elligibility for Immigration Benefits).
As will be discussed in some detail below, certain aliens who gained their immigration status through marriage (or the marriage of one of their parents), or through investment, are only granted "conditional permanent resident" status and must file at some later date a petition to remove the "conditional status" or a waiver application in order to retain their legal right to remain here permanently. By the way, "permanent resident status" isn't really that permanent. It can be lost in numerous ways. For example, committing relatively minor crimes, becoming a public charge after immigrating, or even remaining out of the U.S. for over one year without obtaining a special re-entry permit.
Nonimmigrants come here for a limited purpose, such as tourism, business or education. There are currently over one hundred categories and subcategories, ranging from "A-1" diplomatic visa holders, to "R-1" religious workers, not to mention "Trade NAFTA", and "NATO" non-immigrant visa holders. Some, like the E-1 "Treaty Traders" or E-2 "Treaty Investors" can remain nearly a lifetime in the U.S.; others, like the most popular B-2 "visitor for pleasure" are only granted a maximum six month stay, though extensions can be granted.
In most categories, especially categories that allow people to work or study in the United States, (E-1, E-2, F-1 or M-1 "students", H-1 "professional workers", J-1 "exchange visitors", L-1 "intracompany transferees", "Trade NAFTA" status, etc.) spouses and minor children are also granted derivative visas to come here while the principal alien is pursuing their employment or studies.
In regard to the "undocumented" I'd like to make one important comment. Many non-immigration lawyers do not realize that legal immigration status is very transient and fluid. It can be easily lost, and often regained. Sometimes, nothing more that a short trip abroad, as in the case of an overstayed tourist, is enough to restore status, provided that upon the aliens return to the U.S. he or she in fact intends to do sight seeing or visiting friends for the period of time allowed. Even those who "entered without inspection" can become legal if in deportation proceedings they can convince the immigration judge that they are statutory eligible and deserving of some form of relief from deportation. Such relief can be an application for asylum, or an application for suspension of deportation for those continuously here for more than seven years for whom extreme hardship would result if they were deported.
Aliens with job skills or those who have close relatives who are U.S. citizens or permanent resident aliens, or aliens who plan on marrying U.S. citizens or permanent resident aliens, can also legalize their status here. Oftentimes there is a long wait created by quota backlogs. Thus, many people may be here "illegally" today, but may be eligible and entitled to a legal status a some indefinite time in the future.
2. Is Your Client’s Immigration Status Based on the Marriage? (Or, Can Legal Status be Obtained at Some Future Date Based on the Marriage?)
As mentioned previously, aliens in the U.S. on a temporary stay may bring their spouse and unmarried children under 21 years of age with them on dependent status. Thus, if your client is such a dependent, she or he may lose that status upon the dissolution of the marriage. Unless they qualify for some independent status based on their own qualifications or family relationships, they may fall out of status and become deportable (which is not the same thing as actually being deported!).
It may be of interest to family law practitioners that the California Supreme Court has determined that California trial courts do not lack jurisdiction to render a judgment of dissolution, despite the husband's status as a nonimmigrant alien, since that status does not preclude a finding of residence for purposes of Civil Code section 4530(a), In Re Marriage of Dick, 15 Cal App. 4th 144; 18 Cal Rptr. 2d 743 (April l993).
The Court found that the federal requirement of maintaining a residence in a foreign country is not necessarily inconsistent with establishing domicile under state law. A nonimmigrant alien in the U.S. on a renewable visa may have the dual intent of remaining in this country indefinitely and of returning to his or her home country if so compelled. At most, alien status can operate as an evidentiary fact against the alleged intent to remain in the state permanently. Further, it is unnecessary for California courts to carry out immigration policy by denying nonimmigrant aliens a judicial forum when they otherwise meet domiciliary requirements and when they are subject to the state courts for other purposes.
- Lawful Permanent Residents
This is the most critical area involving the inter-relationship between immigration law and family law. As is more fully discussed in Appendix 1 - " A Short Overview of Immigration Law”, in 1986 Congress passed the Immigration Marriage Fraud Act (IMFA) which has been significantly amended several times. The crux of the legislative scheme is that aliens (and their unmarried children under 21 years of age) who have not been married at least two years at the time the alien's application for permanent residence is adjudicated (i.e.: at the adjustment of status or immigrant visa interview) are only granted "conditional permanent resident status".
This conditional status, although in every other way the legal equivalent to full permanent resident status, expires after two years. During the last three months (e.g.: 21st - 23rd month after status was granted) a "joint petition" must be filed and signed by the spouses which must document that the marriage was not entered into for immigration purposes. Usually, supporting documentation includes joint tax returns, bank statements, utility bills, insurance policies, and other evidence of financial commingling.
In really "good" cases evidence may include a deed to real property (the family home) or a baby's birth certificate, all of course in the names of both spouses. It is not necessary for the parties to have a conventional marriage, be living together or even have a viable marriage although the absence of such will lead to closer Immigration and Naturalization Service (INS) scrutiny and a more lengthy investigation. All that the law requires under section 216(d) of the Immigration and Nationality Act (8 U.S.C. §1186a) is the following:
- "the qualifying marriage - (I) was entered into in accordance with the laws of the place where the marriage took place, (II) has not been judicially annulled or terminated, other than through the death of a spouse, and (III) was not entered into for the purpose of procuring an alien's entry as an immigrant; and
- no fee or other consideration was given (other than a fee or consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 204(a) or 214(d) with respect to the alien spouse or alien son or daughter."
In cases where the marriage has been terminated it is still possible to obtain a waiver of the requirement to file a joint petition. Under section 216(c)(4) ( 8 US.C. §1186(c)(4)) there are three separate and independent grounds for a waiver:
- Extreme hardship would result if the alien were deported, such extreme hardship resulting from circumstances occurring during the period of conditional permanent resident status. - Note: It is not necessary for the marriage to be bonafide in order to qualify for this waiver.
- The qualifying marriage was entered into in good faith by the alien spouse, but the marriage has been terminated (other than through death of the spouse). Note: The prior requirement that the divorce be for "good cause" and the requirement that the alien must be the petitioner for the divorce were eliminated by the amendments in the Immigration Act of 1990.
- The qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse. This waiver does not require that the parties have had their marriage dissolved. The INS has defined this exception as including, but not limited to, "being the victim of any act or threatened act of violence, including any forceful detention which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation shall be considered acts of violence." 8 CFR §216.5(e)(3)(i). A waiver based upon extreme mental cruelty must be supported by the evaluation of a professional recognized by the INS. Licensed clinical social workers, psychologists and psychiatrists are professionals so recognized. The information is to remain confidential.
Although the joint petition must usually be filed during the three month window, the waiver application can be filed at any time. Even if the joint petition or waiver is denied by the INS it can be renewed in deportation proceedings and through the appeal procedure eventually be reviewed by the courts.
Some additional points in regard to the effect of a dissolution of marriage for an aliens who acquired that status through marriage. If the alien is already a "full" permanent resident than the fact the marriage has been terminated should not affect his or her status unless of course it was a sham marriage entered into solely for the purpose of acquiring immigration benefits. Lawful permanent resident status can be revoked if it was based on a fraudulent application although a statute of limitations or eligiblilty for a waiver may result in the alien being allowed to retain legal status. Also, if the alien acquired his or her status based on being a "dependent" of the principal alien eligible for permanent residency (ex.: principal alien qualified based on job skills or family relationship) then full permanent residence is automatically granted and a subsequent divorce, no matter how soon after permanent residency is granted, does not affect his or her immigration status.
Finally, a permanent resident married to a U.S. citizen is eligible to apply for naturalization (U.S. citizenship) after only three years if he or she has been a permanent resident for three years and married to the citizen for that period of time. If the alien is not living with the citizen at the time the application for naturalization is adjudicated then the person must be a permanent resident for usual residency period of five years. In other words, the divorce may cause the alien to wait an additional two years in order to become eligible to become a U.S. citizen.
Even those in the U.S. illegally may be affected by the dissolution of their marriages. First off, although In re Matter of Dick, 15 Cal App. 4th 144; 18 Cal Rptr. 2d 743 (April l993), involved legal nonimmigrants, I would assume the Courts reasoning would apply with even more force to those in the state illegally. Unlike legal nonimmigrant who when they applied for their visas were required to state that the purpose of their stay in this country is only temporarily, undocumented and overstayed nonimmigrants clearly have the intent to remain in this country permanently.
A dissolution of marriage can have consequences on the immigration status of someone not legally in this country in several ways. First, the alien may be entitled to some inchoate status based on the marriage. For instance, the alien may be married to a U.S. citizen who has not yet prepared and filed the necessary applications with the INS., or the application may still be pending. It currently takes nearly a year to schedule an interview at the Los Angeles District Office of INS on this type of case.
If the alien is married to a permanent resident (as opposed to a U.S. citizen), there may be a long quota backlog until a visa can be issued abroad or adjustment of status to permanent resident status be granted at the local INS office. Or, the alien’s spouse may be the principal applicant in an application based on his or her job skills or relationship to a U.S. citizen parent, sibling or adult son or daughter. A final judgment of dissolution of marriage would legally cut off their spouse from claiming dependent status no matter how long or bona fide the marriage was.
An alien in deportation proceedings may be eligible for certain waivers or other benefits based on the marriage. For instance, in order to be eligible for waivers of excludability for certain crimes or for having committed fraud in applying for immigration benefits, an alien must have a spouse, parent or child who is a U.S. citizen or permanent resident. Asylum applications include spouse and children. Suspension of deportation requires that an alien have resided more than seven years in the U.S. and prove extreme hardship to a spouse, parent or child who is a U.S. citizen or permanent resident. There are many other situations where eligibility for relief may be based on the marriage even though one or both parties are not currently legally in the country.
On the other hand, a final judgment of dissolution of marriage may be just what the immigration lawyer prescribes. Two situations come to mind. First, the very common situation where the alien is living with a U.S. citizen or permanent resident. The alien may want to marry the citizen or permanent resident but for the fact that they are still married to their spouse in the “old country”. There are still countries which do not allow divorces (ex.: The Philippines) Once the marriage is terminated the alien can marry his or her new love and be accorded the appropriate immigration benefits.
The second situation involves aliens who are the sons and daughters of usually recently naturalized U.S. citizens or permanent residents. As unmarried children they may obtain a better (e.g.: shorter backlogged) quota classification. In fact, only the unmarried children of permanent residents can be petitioned for parents. U.S. citizens can petition for both married and unmarried children but in most cases the quota is only current for the unmarried children. Note however, that INS has adopted the concept of a "sham" divorce, which involves divorces wherein the parties only obtained the divorce for immigration purposes. Usually this doctrine is applied to revoke permanent residency when the alien is granted permanent residency as an unmarried son or daughter of a U.S. citizen or permanent resident and then remarries his or her divorced spouse and files a petition to accord that spouse immigration benefits through the marriage.
3. If So, Will a Dissolution of That Marriage Result in Your Client Losing That Status or Future Eligibility?
- Consult With a Certified Immigration Specialist
Although the possibility of a waiver for aliens with conditional permanent resident status was briefly discussed above, quite frankly, the legal implications of the termination of the a marriage on the immigration status of the alien are not within the expertise of family law practitioners. The alien should be referred to a qualified immigration lawyer, preferably a specialist certified by the State Bar of California Board of Legal Specialization in the field of immigration and nationality law.
As is simply illustrated by Appendix II "Outline on Elligibility for Immigration Benefits” the scope of immigration law is vast and complex. Although your client's immigration status may be affected by the dissolution of marriage proceedings, he or she may qualify for immigration benefits in their own right. The proceedings, with the negotiated cooperation of the parties, can also be timed so as to have a minimum effect. It is in the interest of both spouses to make sure that they each have the legal right to live and work in the U.S., or else the ability to pay support, exercise visitation rights, and comply with court orders may be jeopardized.
From the family law practitioners point of view, the problems associated with enforcing U.S. family law court orders and judgments abroad should be avoided if at all possible. Although attempting to have a former spouse “deported” may provide some sort of catharsis for the legal spouse, the departure may only be temporary and may result in the alien spouse avoiding his legal responsibilities.
There are two more topics that should briefly be mentioned although they do not necessarily involve dissolution of marriage proceedings. They involve battered immigrant woman and children and widows of U.S. citizens.
- Rights of Battered Immigrant Women and Children
In September of 1994 the Violent Crime Control and Law Enforcement Act of 1994 (the "Crime Bill") was signed into law. In it are provisions which amended existing law to provide self petitioning rights for battered women and their children who are married to U.S. citizens or permanent resident aliens.
Thus aliens who have been held captive so to speak, by their husbands or wives who refuse to petition for them in order to exert psychological leverage can now petition themselves. The law was amended to provide that the legal termination of a marriage may not be the sole basis for revocation of a petition filed by the U.S. citizen or permanent resident spouse. Finally, a new section was added which authorizes the suspension of deportation of battered aliens or their children who have resided continuously in the U.S. for three years and them grants permanent resident status. It additionally allows the Attorney General to determine what constitutes credible evidence of such abuse. The law does not require that the alien be married to the abusing partner. Only that the "battering or extreme cruelty" be done by a U.S. citizen or permanent resident alien.
- Rights of Widows and Widowers of U.S. Citizens
A widow or widower of a U.S. citizen, if married for at least two years, may petition for permanent resident status within two years of the spouse's death, if at the time of his or her death they were not legally separated or divorced and the alien has not remarried. The unmarried children under 21 years of age of the widow or widower can also be included.
Although love, marriage, greencards and divorce is an often repeated pattern, perils can arise for the family law practitioner not familiar with the basic tenants of immigration law. Most what you need to know about the immigration consequences of marriage terminations can be explained with the following colloquy:
Question (which should be asked of all new clients): Are you a U. S. citizen? If affirmative, proceed as usual. If not, ask the following two questions: Is your immigration status in the U.S. based on your marriage to a U. S. citizen or lawful permanent resident? If you are not a permanent resident (have your green card), is your immigration status based or your spouse’s nonimmigrant visa status? If so, what is your current immigration status? When did you acquire it? When does it expire?
If client is a conditional permanent resident (“CR-1” or “CR-6” on “green card”) then they should be advised the following: Between 21 and 24 months after he or she became conditional permanent resident (e.g., three months to one day before their status expires) he or she must file a joint petition with their spouse with documentation that the marriage was not entered into solely for immigration purposes. If the joint petition or a waiver is not timely filed then their conditional permanent resident status will automatically expire and they could be deported from the U.S.
If their spouse refuses to sign the joint petition or dissolution or marriage proceeding are pending then the alien spouse must file a waiver application. Waiver applications can be filed at any time and can be filed at any time and can be based on any of three grounds:
- An extreme hardship to alien based on circumstances arising after conditional resident status was granted.
- Good faith marriage - The marriage was entered into on good faith by the alien spouse and has been terminated by divorce or annulment.
- Battered spouse or child - The marriage was entered into in good faith and during the marriage, the alien spouse or child was battered or was the subject of extreme cruelty perpetrated by his or her U. S. citizen or permanent resident spouse or parent.
Denial of the joint petition or waiver application can be reviewed by the immigration judge or deportation proceedings and the government bears the burden of proof in showing the marriage was not bona fide. If alien is a “full” lawful permanent resident then they may lose eligibility to apply for naturalization (U. S. citizenship) after only 3 years and will have to wait the usual 5 years.
If alien is a nonimmigrant dependent (e.g., on a temporary visa such as a F-2 spouse of a student, H-4 spouse of a specialty occupation or worker, etc.), then “dependent” status may be lost and the “dependent” spouse will have to apply for a new non-immigrant status based on their own eligibility if pssible.
If alien never acquired status based on the marriage but could have (e.g., spouse was a U. S. citizen or lawful permanent resident who never filed a petition on behalf of the alien spouse) then alien spouse and children may qualify to self petition if they can show that they qualify as a “battered spouse” or a “battered child.”
Finally, if there is any question that an aliens immigration status might be affected by the commencement of dissolution of marriage proceedings, a qualified immigration lawyer should be consulted.