The Effect of Divorce on Immigration Status in New Jersey

While most attorneys now recognize the impact of immigration status on criminal law issues, many are becoming increasingly aware of the interplay between immigration and family law. Matrimonial and domestic issues can exert a tremendous impact on a foreign national's ability to lawfully reside here.

Divorce proceedings illustrate the most common type of scenario in which these two fields of law can potentially intersect. For example, unless a couple has been married for more than two years at the time an individual's green card application (based on marriage) is approved, the non-citizen will receive a conditional green card. Two years later, that individual and the U.S. Citizen or Lawful Permanent Resident petitioner spouse must ordinarily file a joint petition to remove the conditions on green card. If the couple divorces before or even during the pendency of a joint petition, the immigrant is in serious jeopardy of losing his/her status unless a waiver is filed and approved. Certain waivers will, in fact, require a divorce, such as the I-751 Good-Faith Marriage exception, which requires the applicant to demonstrate that he/she entered in a bona-fide good faith marriage that has terminated in divorce.

Permanent Residents are not the only class affected by divorce. Even those here on a temporary basis-that is, non-immigrants-are also impacted. Spouses of foreign students as well as professional workers, such as H-1bs, are allowed to accompany their husbands or wives as dependents. If, however, a divorce occurs, the dependent spouse whose immigration status derives from the primary beneficiary's, stands to lose his/her status. Once an individual loses his/her status, he or she is ordinarily ineligible to switch, change, or adjust status within the US.

An allegation of domestic violence can be equally as devastating to a foreign national. If a non-citizen is charged with and convicted of a crime of domestic violence, he/she is potentially vulnerable to deportation. Additionally, a conviction for violating a restraining order can also expose the immigrant or visa holder to removal proceedings.

On the flip side, immigration status is sometimes relevant in family court. When a US Citizen or Lawful Permanent Resident sponsors his/her spouse, he or she will normally sign an Affidavit of Support as part of the process. That affidavit of support is an enforceable contract that obligates the US Citizen/LPR petitioner to maintain or support the foreign spouse at 125% of the federal poverty guideline level. Most spouses understand that in the event that the immigrant takes certain "means-tested" benefits, he or she may responsible to reimburse the government. However, many unfortunate spouses are surprised to learn that this obligation also survives divorce (unless or until the foreign spouse naturalizes), and it can potentially be enforced in family court by the foreign national.

Immigration can potentially be an issue as well in terms of child custody. As referenced earlier, a dependent of a non-immigrant can lose his/her status if divorced from the primary visa holder. What happens in terms of child custody? If the dependent spouse is no longer in lawful immigration status and hence, amenable to removal, could that influence how the court awards custody? These types of thorny issues highlight the importance of discussing immigration status with a family law attorney, and how sensitive both immigration and family law counsel must be to each other's sphere of influence.