How Family Law Affects Non Citizens

We have two kinds of people in the United States: US citizens and non citizens. Non citizens can be classified as persons who can stay here permanently, also called permanent residents or immigrants. We call those who have a non immigrant visa – these people may be able to work and some cannot; and those who have overstayed their visa or have entered without US Government visa, illegal aliens. This article discusses the effects of family law action on the immigration status of persons with lawful immigration presence.

Questions from family law practitioners are often about how an action in family court will affect their client’s immigration status. The first step is to recognize the documents and to ask for immigration documents from clients. In our office, we regularly ask for evidence of immigration status in the United States, regardless of accent, education, race or other appearance characteristics. We have clients from Canada who, for all intents and purposes, act like US citizens and those who are US citizens who have accents. So as a matter of procedure, immigration status is a routine question to ask.

Divorce and Annulment
Permanent residents, who are also called ‘green card’ holders in popular parlance, are generally not affected by family court actions like divorce, unless they are a conditional permanent resident. A conditional permanent resident has been married less than two years when they received their ‘green card’ with conditions, which have to be removed within 2 years. A conditional resident can apply for removal of conditions either jointly (which is an easier application) or after they obtain a divorce. Conditional permanent residents are not eligible for a permanent green card valid for 10 years, until they have removed conditions. Conditions can be removed either while being married or after divorce, but not during the pendency of a divorce action[1]. An annulment action negates the marriage, which is the basis of the application for the spousal ‘green card’. So such an action is not recommended for a spouse who is on conditional residency or whose application to USCIS has been based on marriage to a permanent resident or US citizen.

Affidavits of Support
In a divorce action, maintenance and spousal support may be an issue. In family spousal application, an affidavit of support is filed as part of the application package with USCIS[2]. The affidavit of support is filed for the foreign spouse on Form I-864. The sponsor promises to maintain the foreign spouse so that he or she does not become a public charge. There are certain conditions to be fulfilled before this obligation is discharged.  The case discusses the sponsor’s obligations and discharge of duty under the law. In Cheshire v. Cheshire[3], a case in Florida, it was held that pursuant to the INA[4] and the terms of Form I-864, a sponsor’s support obligations to the sponsored immigrant under an affidavit of support terminate only upon the occurrence of one of five circumstances: 1) the sponsor’s death, 2) the sponsored immigrant’s death, 3) the sponsored immigrant becoming a U.S. citizen, 4) the sponsored immigrant permanently departing the U.S., or 5) the sponsored immigrant being credited with a total of 40 qualifying quarters of work, 8 U.S.C. § 1183a(a)(2), (3); 8 C.F.R. § 213a.2(e). The majority of sponsored immigrants will have to work ten years to meet the 40 quarters requirement, as a maximum of four quarters can be earned in a year. However, sponsored immigrants can be credited with quarters earned by the immigrant’s spouse during the marriage, but only if the alien remains married to that spouse. The sponsor’s financial obligations under the affidavit of support terminate only upon the occurrence of one of the five circumstances above; hence divorce does not invalidate the contract created by the affidavit of support. As such, a spouse sponsoring an immigrant spouse can be liable under the affidavit of support even after divorce. The instructions accompanying the affidavit of support, Form I-864, provide that “divorce does not terminate the obligation” of a sponsor to support the sponsored immigrant. Federal courts have found that divorce between a sponsored immigrant and a sponsor does not necessarily negate a sponsor’s financial liability under an affidavit of support[5]. The parties in Cheshire were divorced but that does not alleviate the sponsor’s obligation to support the foreign spouse according to Section 1183(a) and the terms of Form I-864. Family law practitioners could enforce a valid affidavit of support following the guidelines of sponsor’s financial obligations.

Enforcing Child Support
Personal Responsibility and Work Opportunity Act, 1996, Section 652(k) sometimes requires a denial of passport renewal for failure to pay child support. Under this law, there is a possibility of a denial or revocation of passports for individuals who fail to pay child support. Through this law, Congress sought to eliminate entitlements, or cash welfare, to individuals who were dispersed as part of the Social Security Act. Using Temporary Assistance to Needy Families or TANF, Congress attempted improve child support collection rates with the hope that single parent families would move off welfare rolls and remain self-sufficient. The idea was that “States should diligently continue their efforts to enforce child support payments by the non-custodial parent to the custodial parent, regardless of the employment status or location of the non-custodial parent”[6]. To achieve these purposes, the law was designed to encourage states to have similar child support laws, to share information through the Federal government, and to handle interstate child support cases quickly. One of the enforcement measures included a denial by the US Department of State of Passports for nonpayment of child support[7]. Under Section 51.70 (a) (8) of Title 22 of the Code of Federal Regulations, if you are certified to Passport Services by the U.S. Department of Health and Human Services (HHS) to be in arrears of child support payments in excess of $2,500, you are ineligible to receive a U.S. passport. As a practice pointer, may I say that in my experience it is easier to obtain a settlement for your client if the child enforcement department of the state is owed money. In other words, the custodial parent receives public assistance from the state. The state has an interest in collecting and arriving at a settlement; there are no emotions that cloud the issue as in the case of a custodial parent.  Information on child support can be obtained from the appropriate State child support enforcement agency.

[1] USCIS Acting Associate DirectorYates Memo dated April 10, 2003,
[2] United States Citizenship and Immigration Service.
[3] Cheshire v. Cheshire, 895 So. 2d 408 – Fla: Dist. Court of Appeals, 1st Dist. 2005
[4] Immigration and Nationality Act, 1952
[5] Schwartz, 2005 WL 1242171, (finding that “a sponsor and a sponsored immigrant’s divorce does not automatically terminate the sponsor’s obligations under the affidavit of support,” in case where plaintiff, permanent resident alien of the U.S. and defendant’s ex-wife, brought suit against ex-husband sponsor seeking to enforce affidavit of support);Stump, 2005 WL 1290658, (holding former husband, sponsor, liable to former wife, sponsored immigrant, for financial support under terms of affidavit of support where parties’ divorce was pending);Ainsworth, 2004 U.S. Dist. LEXIS 2896, (noting that divorce did not end enforceability of affidavit of support contract).
[6] Reconciliation Committee. “H. Report 104-725”. Retrieved 2011-01-09.
[7] Section III (Child Support), Subtitle G (Enforcement of Child Support) contained 14 enforcement measures to improve the collection of child support, including Denial of Passports for Nonpayment of Child Support in Section 370. Under Section 370, 42 U.S.C. § 652(k)(2) was amended so that the “Secretary of State shall, upon certification by the Secretary transmitted under paragraph (1), refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual.”

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Copyright 2011. All rights reserved.

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