Immigration and international Implications for Marriage and Divorce to a United States Citizen
Many foreign nationals immigrate to the United States through marriage to a U.S. citizen. Although “legal” status is not automatic by virtue of marriage to a U.S. citizen, these foreign national spouses are accorded certain privileges in processing for their lawful permanent residence. For example, spouses of United States citizens are not subject to the bars to adjustment for working without authorization or overstaying their period of admission, as are other foreign nationals.
In addition, the spouse of a United States citizen is considered an “immediate relative” under the Immigration and Nationality Act, meaning that an immigrant visa is immediately available and there is no quota or other numerical limitation on receiving a green card. Thus, the determination of admissibility as a lawful permanent resident is the only limitation faced by the foreign spouse applying for immigration benefits. Admissibility consists of a finding that the foreign national has not committed certain crimes, has no serious communicable diseases, and has not and does not intend to engage in espionage, terrorism, or certain other prohibited activities.
The process for a United States citizen to petition for his or her foreign national spouse consists of filing a Petition for Alien Relative, together with an application by the foreign national to register permanent residence or adjust status (assuming the spouse is present in the United States). The alien relative petition must be accompanied by evidence of the bona fides of the marriage. The application to adjust status must be accompanied by an Affidavit of Support by the U.S. citizen spouse evidencing income or assets sufficient to support the beneficiary to a minimum of 125% of the federal poverty guidelines. Where the U.S. petitioner has insufficient income or assets, it may be necessary to include an additional Affidavit of Support by a joint sponsor.
The Affidavit of Support is a serious obligation that should be well understood by those signing it, because it creates an obligation to support the spouse for a minimum of the spouse paying into the social security system for forty (40) quarters (in other words, working for forty quarters) or the foreign national spouse becoming a United States citizen, whichever occurs first. The Affidavit of Support may be enforced by either the foreign spouse or any state or federal governmental agency that pays the foreign spouse any means-tested benefit, like welfare or food stamps. The support obligation survives a divorce action, even if the foreign spouse waives alimony or spousal support.
A spousal petition will result in a marriage interview at a local USCIS service center. Both spouses must attend this interview and bring a variety of documentation to prove that the marriage is real and that the petitioning spouse has the means or resources to support the foreign national. In addition, the USCIS adjudicator will question the foreign spouse about his or her criminal background and other potential grounds of inadmissibility.
Once the petition is approved, the foreign national spouse will receive “conditional” lawful permanent residence for a period of two years. Within ninety days of the two year anniversary of receiving conditional permanent residence, both spouses must file a joint petition to remove the conditions, together with proof that the marriage is intact and the parties are residing together as a married couple.
Unfortunately, sometimes marriages do not survive the test of time, and one or both parties decide to seek a divorce. If a divorce or separation occurs before the parties file the joint petition (or during its pendency), the immigrant spouse may file the petition to remove conditions and ask for a waiver of the joint filing requirement.
This entails proof that the marriage was entered into in good faith and not for the purposes of evading the immigration laws of the United States. A request for a waiver of the joint filing requirement is a serious endeavor that should be undertaken with great care in order to avoid any finding of marriage fraud by USCIS.
The process for a United States citizen to petition for his or her foreign national spouse consists of filing a Petition for Alien Relative, together with an application by the foreign national to register permanent residence or adjust status (assuming the spouse is present in the United States). The alien relative petition must be accompanied by evidence of the bona fides of the marriage. The application to adjust status must be accompanied by an Affidavit of Support by the U.S. citizen spouse evidencing income or assets sufficient to support the beneficiary to a minimum of 125% of the federal poverty guidelines. Where the U.S. petitioner has insufficient income or assets, it may be necessary to include an additional Affidavit of Support by a joint sponsor.