IMMIGRATION AND INTERNATIONAL IMPLICATIONS OF MARRIAGE AND DIVORCE TO A UNITED STATES CITIZEN
By Karen P. Mentor, Esq
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.
INTERNATIONAL CHILD CUSTODY AND THE HAGUE CONVENTION
By Karen P. Mentor, Esq
In the arena of dual-nationality marriages and divorce, the issue of international child custody occasionally arises. Some of these cases involve claims of child abduction by one parent or custodian. The Convention of the Civil Aspects of International Child Abduction (ICARA, or Hague Convention) dictates the procedural and jurisdictional protocol for remedies for nationals of Hague Convention countries.
The Hague Treaty allows parents or guardians of children abducted either from the United States or from a member country to the United States. The objects of the Hague Treaty are:
Article 1 (a): To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
Article 1 (b): To ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
While a decision under the Hague Convention is not a determination of the custody of the minor child pursuant to Article 19 of The Convention and/or 42 U.S.C. 11601(b)(4), a State or Federal court has jurisdiction to render decisions regarding the return or retention of minor children either brought to or removed from the United States.
In order to establish a prima facie case for wrongful removal or retention of a child where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Defenses to a Hague Convention Petition
Under Article 12 of the Convention, the court has discretion not to order the return of the child if the proceedings were commenced more than one year after the alleged wrongful removal or retention of the child and the child is now settled in his or her new environment.
Under Article 13 of the Convention, notwithstanding when the proceedings were commenced or whether the child is settled in the new environment, the court has discretion not to order the return of the child if the party opposing the return establishes that there is a grave risk that the child’s return “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Hague petitions for wrongful removal or retention of a minor child are highly charged and fraught with emotion. Stakes are high and consequences are monumental, and it is advisable to seek competent counsel for representation.
E-1 AND E-2 VISAS
By Karen P. Mentor, Esq
The E-1 (Treaty Trader) and E-2 (Treaty Investor) visas are convenient and flexible nonimmigrant visa classifications for those who qualify to enter the United States and work more or less indefinitely for as long as the basis for the E visa continues to exist. Both visas require the appropriate treaty between the United States and the applicant’s home country.
The E-1 is for individuals who will engage in substantial international trade of goods, services or technology principally between the U.S. and the treaty country. The E-2 is for individuals who will direct and develop an investment enterprise in the U.S. Both visas allow the recipient to live and work in the U.S. and travel freely in and out.
Spouses and dependent children acquire the same status, regardless of their nationality, and spouses are eligible to apply for work authorization in the U.S.
The E-2 visa application must be accompanied with proof that:
– The requisite treaty exists between the U.S. and the treaty country;
– The business is at least 51% owned and controlled by a national of the treaty country;
– The business is a real and operating commercial enterprise;
– The visa applicant has invested or is actively in the process of investing;
– The visa applicant’s investment is “substantial;”
– The investment is more than a marginal one expected to earn a living;
– The visa applicant is in a position to develop and direct the enterprise;
– The visa applicant intends to depart the United States upon termination of the E-2 status.
Note that there is no bright line for what constitutes a “substantial” investment. Some feel that the investment in the business should be at least $100,000 to qualify; however, there is no rule to this effect in policy, regulations or statute that requires this. The essential factors are whether (1) the business is expected to generate more than a marginal return (more than a “mere living”); and
(2) whether the investor’s contribution of capital is proportional to the entire required investment. Thus, a business of a lower overall value, such as a $100,000 restaurant, would require a higher proportion of the total value to be contributed by the investor, such as $80,000 (for example); whereas a business valued at $100,000,000 would require a proportionally lower initial cash contribution by the visa applicant (for example, $1,000,000) because of the sheer scale of the investment.
An E-2 visa applicant should be prepared to produce all organizational documents for the business; corporate filings, SS-4 form (with EIN number); bank records dating back at least three years; payroll records; documents proving that the business is active; proof that the visa applicant’s investment funds have been deployed into the business for purchase of inventory or other purposes (as opposed to having been simply deposited into a company account which the investor controls); proof that the investor’s funds are personal and were lawfully acquired; and proof of the actual path of the investment funds from the visa applicant to the business.
The visa application will also require a credible and carefully drafted business plan with five years of financial pro forma.
The E-2 visa application must be accompanied with proof that:
-For an investor who is purchasing a going concern, this requirement may be satisfied by showing the funds have been irrevocably committed to the account of the seller’s agent, with the only contingency being approval of the E-visa classification.
The E visa (whether it be Treaty Trader or Treaty Investor) is a very flexible and versatile form of nonimmigrant visa that confers great liberty upon the applicant and his or her family to remain, work, and freely enter into and exit from the United States during the validity of the visa. In addition, while it does not have a stated validity period, it can be renewed indefinitely for as long as the applicant continues the permitted business activities.
EB-5 Investor Overview
By Karen P. Mentor, Esq
The following is an explanation of the EB-5 process and an approximate timeline for the various stages thereof.
THE EB-5 PROGRAM
EB-5 stands for “Employment-based Fifth Preference,” which is the fifth preference category for U.S. immigrant visas. The category allows for up to 10,000 immigrant visas for non-U.S. nationals who invest personal funds consisting of either $1,000,000 or $500,000 (for investments in a rural or high-unemployment region), into a for-profit business that creates ten (10) permanent, full-time (at least 35 hours per week) jobs for U.S. workers.
To meet the investment criteria for this immigrant visa category, an investor must acquire an equity stake in a “new” commercial enterprise, defined as one that has come into existence after November 29, 1990.The funds must be deployed and “at risk,” meaning that the investor risks losing the entire investment amount in the event of failure of the business. Redemption agreements, buyback agreements, loan instruments or guarantees are strictly prohibited.
An EB-5 investor must qualify both from the investment as well as the immigration standpoint. Applicants must be admissible as immigrants to the United States, meaning that they must not have committed serious violations U.S. immigration laws.
In addition, applicants who have made willful misrepresentations to any immigration official, or who have committed certain crimes, are inadmissible as immigrants (although in some limited cases there may be waivers available). Applicants must also pass a physical examination to rule out certain communicable diseases, addictions or mental health conditions.
In addition, each investor must be able to prove that the source of his or her investment funds was lawful. He or she must provide documentation of earnings, assets, loans, inheritance, or any other lawful source of the investment funds. In addition, it will be necessary to prove the path of the investment funds into the United States business enterprise.
EB-5 PROCESS AND TIMELINE
For a direct investment into a United States business, an investor must form or join a “new” business and place the necessary funds at risk. This means that the investment capital must not only be deposited into the operating account of the U.S. business, but they must be entirely committed to the business activities.
Expenses such as legal and other professional fees, payments to agents, and other costs not directly linked to the business activities must be paid for separately from the investor’s “administrative fees,” since these are not considered to be relevant to the job-creating business activities.
The I-526 application typically takes up to twelve (12) months for the United States Citizenship and Immigration Services to adjudicate. Occasionally the USCIS will issue a “Request for Evidence,” or RFE, asking for additional information or clarification.
Once an investor receives his or her conditional residence, he or she (and dependents) may reside anywhere in the United States, become employed, and travel in and out at will. Within ninety (90) days before the second anniversary of conditional residence, the immigrant must file an application to remove the conditions on his or her residence, by filing Form I-829, “Application to Remove Conditions.”
This and the required supporting evidence will establish that the investment funds remain at risk, that the business plan for the U.S. for-profit enterprise has been substantially adhered to, and that the projected jobs have been created. Documentation and proof normally consists of tax returns, business bank accounts, payroll records and other evidence of business activities. The I-829 application may take up to an additional twelve months to be approved.
Once the I-829 has been approved, the investor and his or her family receive their permanent residence, with no conditions. At this point, if desired, the investor may withdraw from the investment by selling his or her interest in the business enterprise. Or, the investor may maintain the investment and continue to hold a membership interest in the business.
Five years from the date of the initial approval of the I-526, the investor and his or her family will be eligible to apply for United States citizenship.
The EB-5 immigrant visa program is a viable and sensible way for the non-U.S. national with means to acquire United States status. In addition, the investor may acquire the sense of pride and accomplishment that accompany the establishment and operation of a business that creates permanent jobs for U.S. workers.
This is truly a win-win situation in which the U.S. welcomes the infusion of foreign capital into its economy, and the investor enjoys the knowledge that he or she has made a meaningful contribution to his or her new home country.
After an investor’s I-526 application has been approved, the investor and his or her spouse and children under the age of 21 are eligible to adjust status to lawful permanent resident or process for an immigrant visa at the U.S. consulate or embassy in his or her home country. Adjustment of status is the process for obtaining a green card in the United States, and it is only available to individuals who are in lawful status (usually as nonimmigrants).
The adjustment of status process involves submitting a form with supporting evidence of the intending immigrant’s admissibility as an immigrant. Consular processing involves an application for an immigrant visa at the consulate or embassy with jurisdiction over the intending immigrants’ home abroad.
Both adjustment of status and consular processing may take several months — and sometimes up to one year. The investor and his or her family will now have conditional residence.