1.
When Immigration Law and Family Law Collide—
What Attorneys Need to Know
April 25, 2012
Hosted by:
Ame Coats, Bashyam Spiro LLP
Ketan Soni, Soni Family Law
www.bashyamspiro.com
www.sonifamilylaw.com
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@SoniFamilyLaw

2.
Outline
Today’s Dialogue Map…
3. Validity of foreign marriages and
divorces.
4. Effect of martial status upon
eligibility for immigration benefits.
5. The I-864 Affidavit of Support,
Settlement Negotiations, and
Applications by the Court.
6. Relevance of parent’s immigration
status in child custody hearing

3.
1. Divorce Judgments
The Problem:
Foreign National (“FN”) intends to marry US
citizen and file for green card. However, FN first
must get divorce from foreign spouse.
• Confirm that FN was legally married to foreign spouse
and is required to obtain a divorce. Primary Source—
Foreign Affairs Manual. http://travel.state.gov/visa/fees/fees_3272.html
• Common Issue—FN doesn’t know how to go about
getting a divorce. FN has no idea where foreign spouse
is.
• Common Issue—FN and foreign spouse both live in the
US. However, divorce judgment is from the country
where they were married.

4.
Requirements to Prove Foreign Divorce:
Full Faith & Credit Clause/Comity apply. So, if divorce was
granted where:
- One party was domiciled in foreign country;
- Both parties participated in foreign divorce;
- Divorce was completed with adequate notice and
service of process;
Then, your divorce will likely be recognized.
If:
- Both are domiciled in the U.S. and try to get a
divorce elsewhere, most likely not recognized.

5.
Foreign Divorce is Valid: What proof is
necessary?
- Certified copy of foreign divorce decree;
- Request certified copy in language of foreign country.
- Obtain a certified English translation
If there is any question as to validity, you can obtain a
Declaratory Judgment in your state court.

6.
Separation Date
The Problem:
Separation date in divorce judgment is
incorrect. Date in divorce judgment is
significantly earlier than actual separation
date.
Common Issue—
Permanent Resident obtained green card through marriage to US
Citizen. Now divorced. Wants to apply for US Citizenship.
Separation date in divorce judgment makes it appear as though
Permanent Resident and ex-spouse were separated when green card
issued or shortly thereafter. Immigration Officer may think that
Permanent Resident committed fraud during green card process.

7.
Family Law Clients &
Immigration Problems
Scenario 1:
FN has pending green card application
based on marriage to spouse.
• Separation (but not yet divorced) could result in denial of
the case.
• Divorce terminates the case.
• Under The Violence Against Women Act (VAWA), FN
subjected to extreme physical or mental cruelty by USC
or LPR spouse or parent can apply for permanent
residency on their own. Must be filed within 2 years of
divorce. Advise client to gather all records of violence and
life together with spouse or parent (keep safely).

8.
Family Law Clients &
Immigration Problems
Scenario 2:
FN is already a Permanent Resident.
• If 10 year green card, client is ok. (Except potential
marriage fraud issues.)
• If 2 year green card, client is at risk of losing residency.
2-Year Card = Conditional Residency
• Must File To Remove Conditions on Residence
• Must File Jointly With Spouse Unless Waiver Exists
• Possible Waivers – Divorce, Extreme Hardship, Battered
Spouse

9.
Family Law Clients &
Immigration Problems
Scenario 3:
FN is the dependent spouse of a FN principal with
nonimmigrant status.
• Typical nonimmigrant statuses held by principal FN – H1B & TN (Professional Workers),
F1 (Student), J1 (Exchange Student), L1 (Intracompany Transfer), etc.
• Spouses of principal FNs are allowed US immigration status as dependents.
• Separation does not affect FN’s immigration status. However, separated FN dependent
spouse should get advice regarding other visa options since divorce may be imminent.
• Divorce terminates dependent status.
• Dependent status is terminated if principal FN violates or terminates his or her own
status.
• Principal FN does not have the power to randomly terminate dependent FN’s status.
• U Visa—Nonimmigrant status for victims of certain violent crimes who have been
helpful in police investigation or prosecution. May work for victim of domestic
violence. Can lead to Permanent Resident status.

10.
Affidavit of Support
• USC/LPR files Affidavit of Support (Form I-864) when sponsoring FN
spouse.
• Requires USC/LPR to support FN spouse at 125% of federal poverty
guidelines.
• Who Can Enforce Affidavit of Support?
– Government Can Enforce By Seeking Reimbursement From Sponsor for Certain
Government Benefits
– Foreign National Can Enforce Through Litigation, can be used to establish duty of
support in State Courts.
• Relevant in Court proceedings to establish alimony or maintenance
in some states:
- Baines v. Baines: 2009 Tennessee
http://www.tba2.org/tba_files/TCA/2009/bainest_111309.pdf
- Cheshire v. Cheshire 2006 Florida– No. 3:05-cv-00453
- Love v. Love, Pa. Super. Ct. Pennsylvania 2010
- Naik v. Naik, 399 N.J. Super. 390 2008 New Jersey
- Many others
• Relevant in settlement negotiations

11.
Termination of Affidavit of Support
Obligations
• Termination of Obligation NOT Under Control of Sponsor.
• Divorce DOES NOT terminate Affidavit of Support
liability.
• Affidavit of Support terminates by:
Death of Sponsor/FN; FN Becoming USC; FN Completing 40
Qualifying Quarters Of Work (Apprx 10 Yrs); FN Abandoning
Permanent Resident Status

12.
Child Custody
Effect of parent’s immigration status upon child
custody:
- Typical standard is “best interest of the minor children”
and that’s all. Should be no consideration of immigration
status.
- Practically, District Court will consider immigration if
one party will be deported.
- Also consider immigration status of minor child if they
will be potentially deported.
- Unofficial, but courts tend to want to keep children
here versus sending overseas where control is lost and
where there is potential for one parent to never see
child, i.e. country that has not ascribed to Hague
Abduction Convention

13.
Questions for us?

14.
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