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Immigration and Family Law

Posted on : September 13, 2012

Many clients ask me family law questions regarding immigration. First of all, immigration involves several agencies, including the U.S. Department of State (possibly), The U.S. Department of Labor (as to employment-based visa petitions and green card sponsor-ships; The Social Security Administration and the Department of Motor Vehicles regarding legal status in the United States and obtaining a Social Security Number and Driver’s License (Note: It’s a crime to drive without a driver’s license or without insurance).

The issue that comes up the most frequently is the Sponsorship and Affidavit of Support (I-864).  A spouse can be a sponsor to assist the other spouse in obtaining a Green Card (along with other family members).  Most importantly, the sponsoring family member, including a spouse, must prove the immigrant with whatever support is necessary to maintain the immigrant at an income that is at least 125% of the federal poverty guidelines.  This Affidavit of support is a contract in which the sponsor agrees to “support the intending immigrant and any spouse and/or children immigrating with him or her” until the contract terminates.  Divorce does NOT terminate that obligation.  Therefore, this can be used as a form of spousal support.

The Non-Immigrant Categories are broken down into several categories which each have their own status:

  • Temporary visitors (6 month max)
  • Crewmen (typically cruise members)
  • Investors
  • Students
  • Professionals
  • Foreign Exchange Visitors
  • Intra company transferees
  • Athletes and Entertainers
  • NAFTA workers (Canadian and Mexican workers), and
  • Victims of crimes

A fiancé visa (called a K-1)  must marry after 90 days and then will pursue a green card.  A K-1 can only pursue a green card sponsorship based on the fiancé relationship.  If the Relation falls apart, a K-1 (aka the fiancé) needs to depart the U.S. and reenter on another status.

The spouse of a U.S. citizen is known as a K-3.

If someone is the spouse of a H-1B visa (the dependent spouse would be an H-4 dependent) and the parties divorce, the divorce will terminate the dependent spouse’s sponsorship and she will have to leave the U.S.

Children remain eligible for dependent status until they reach the age of 21.  In the context of a divorce, the primary visa holder continues to pass dependent status eligibility to the children.

Permanent resident status (aka Green Card Holders) is obtained through one of the following ways:

  • Sponsorship by an employer
  • Sponsorship by a family member (spouse, parent, child, sibling)
  • Self-sponsored (battered spouses)
  • A grant of asylum, or
  • Investor cases ($1,000,000 or $5,000,000 investment)

If the party is a conditional resident, the divorce will have an impact on the other party’s ability to remain in the U.S.  A divorce can also have an impact on the ability of a party’s ability to naturalize.

You should seek legal advice from an attorney that is very familiar with both family law and immigration law before making any decisions regarding these complicated issues.

 

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