The intersection of immigration and family law - Daily Record
The term “immigration consequences” tends to be thrown around in a criminal law context. The 2010 Supreme Court case Padilla v. Kentucky held that criminal practitioners must advise all immigrant, non-citizen clients about any risk of deportation resulting from accepting a guilty plea. But family lawyers should also be aware of the immigration consequences of domestic issues for immigrant clients.
The intersection of immigration and family law was the subject of a recent Maryland Volunteer Lawyers Service training presented by Laurie Hansen and John Gallagher. Family law practitioners should be aware of these three common ways immigration intersects with everyday family law practice.
How many times have you met a client eager to obtain a divorce as soon as possible? Where a 12-month period of separation is required, clients are often tempted to report an earlier separation date, accurate or not.
Clients that have obtained a green card (“lawful permanent residence”) through their marriage to a U.S. citizen will likely file for citizenship (“naturalization”) one day. At that time, he or she must provide documentation of all marriages and divorces. It would be very suspicious if your client alleged in a divorce proceeding a separation date earlier than the date he or she received their permanent “green card” based on the marriage. In such a scenario, USCIS (United States Citizenship & Immigration Services) may make a determination that your client fraudulently obtained permanent residence, precluding any possibility of naturalization in the future.
Ensure clients are candid with you regarding important dates. Make sure that you have an accurate timeline including immigration events. Counsel clients on the future implications of their testimony to the court.
Alimony vs. enforcement of Affidavit of Support
In nearly every family-based immigration case, the U.S. citizen or lawful permanent resident sponsor must submit an I-864 Affidavit of Support swearing to financially support the immigrant at 125 percent of the federal poverty guidelines (amounting to a little less than $20,000 annually for a household of two people).
But a divorce does not terminate a sponsor’s obligation to provide for an immigrant spouse. In fact, a sponsor must support the immigrant, even after divorce, until the immigrant either dies; becomes a citizen; has worked (or can be credited with) 40 qualifying quarters of Social Security earnings; ceases to hold permanent resident status and leaves the U.S.; or obtains new permanent resident status through deportation proceedings.
Where an immigrant client is not likely to be awarded alimony under Maryland law, family law practitioners can consider enforcing a sponsor’s I-864 obligations to support the immigrant ex-spouse. The amount of support may be negligible considering the federal poverty guidelines are very low, but it is a possible alternative when alimony is not an option.
Immigration relief for battered spouses
When a U.S. citizen or green card holder petitions for an immigrant spouse or fiancé/fiancée, the immigrant is usually granted only a conditional green card valid for two years. Near the end of the second year, the immigrant must petition to remove the conditions. Generally, this petition is filed jointly by the immigrant and their spouse. However, the joint filing requirement may be waived if the spouse dies, if the parties divorce after a good faith marriage, or if the conditional resident immigrant or their conditional resident child was subjected to abuse from the spouse.
If the immigrant never obtained a green card because their spouse never petitioned for them, the immigrant may be able to self-petition for a green card through the Violence Against Women Act (“VAWA”).
Abusive partners often threaten to report a battered spouse to immigration authorities, leaving the immigrant spouse fearful of pursuing a permanent green card. However, both of these options allow the battered immigrant spouse to seek permanent immigration relief without the involvement of the abusive spouse.
I practice both family and immigration law, but many lawyers practice one or the other exclusively. If you believe your client’s immigration case may be affected by a domestic issue or your client may be entitled to the immigration relief discussed above, consult with experienced immigration counsel or advise your client to get an immigration consultation.
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