Attorney Ame Coats and our guest, Family Law Attorney Ketan Soni, hash out common but messy family law issues that come up in Ame’s immigration practice and similar immigration issues that come up in Ketan’s family law practice such as:
· Validity of foreign marriages and divorces · The effect of marital status upon eligibility for immigration benefits · Financial Obligations (Form I-864, Affidavit of Support) · Relevance of parent’s immigration status in a child custody hearing · Domestic Violence
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 CONNECT WITH US: FACEBOOK: www.facebook.com/bashyamspiro www.facebook.com/ncmediation TWITTER: www.twitter.com/bashyamspiro @SoniFamilyLaw
OutlineToday’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
1. Divorce JudgmentsThe 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.
Requirements to Prove Foreign Divorce:Full Faith & Credit Clause/Comity apply. So, if divorce wasgranted 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 adivorce elsewhere, most likely not recognized.
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 translationIf there is any question as to validity, you can obtain a Declaratory Judgment in your state court.
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.
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).
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
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.
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
Termination of Affidavit of SupportObligations • 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
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
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