Anyone facing a divorce has difficult decisions to make regarding child custody, child support calculations, and the equitable division of marital property. If one spouse also has issues regarding their immigration status in the United States, they may feel overwhelmed at where to start, and if they will have the legal right to stay in America. The intersection between divorce and immigration can prove legally complex and challenging.
Attorney Dario Romero practices both immigration and family law and has the experience to assist those going through a divorce that may have immigration challenges. If you have any questions regarding your divorce, consider contacting an experienced attorney at My Modern Law.
Fiance Visa and Immigration Rules
Some couples that are engaged, and perhaps even have children together, include one party that has the legal right to be in the United States under a fiance visa. A fiance visa allows a couple to have 90 days together in the United States before the marriage must occur. If the couple does not get married in that specific period of time, it can impact the ability of the spouse to obtain legal immigration status. There are exceptions to this rule, as Dario Romero indicates, such as if there are instances of abuse. Visiting with an experienced attorney can help you understand your immigration rights.
Adjustment of Status and Divorce
If a person enters the United States on a fiance visa and gets married, they then must file to adjust their legal status. If they fail to do so, they will not technically have legal status and can actually be deported from the United States. If they receive an adjustment of status, then they will have a different type of legal status (either an adjustment of status or a green card status.) If the couple makes the decision to divorce after this adjustment of status then they will need to answer additional questions. If the divorce occurs less than two years after the marriage then the spouse that entered the United States will receive a conditional green card. A conditional green card indicates that the person must return to obtain the removal of the conditions on that green card within two years and receive full green card status. Additionally, couples will have to illustrate that they entered the marriage in good faith, and it was not simply an attempt to get a more beneficial immigration status for one of the spouses. If the couple gets divorced more than two years after their marriage, then they should have the ability to obtain the ten-year green card (whether they are divorced or not.)
Divorce vs. Legal Separation for Immigration Purposes
For immigration purposes, either a couple is married or not. While certain states have the ability to receive a legal separation, for immigration purposes it only matters if a person gets actually divorced under the law. This is due to the fact that immigration law is a federal law, and therefore individual state laws regarding legal separation would not impact federal law.
Contacting Homeland Security Regarding Immigration Status
There are circumstances where one person wants to contact the Department of Homeland Security in an attempt to deport their significant other. If the person does not have any legal status or pending legal status to be in the United States, has overstayed their visa, or entered the country illegally, there is a potential that the United States Immigration and Customs Enforcement (ICE) may come out to deport the individual. However, because ICE has a lot of cases, they typically only focus on those cases that involve criminal activity.
In most family court cases, the judge will not take into consideration whether one party is in the United States illegally, as long as it does not impact the “best interest of the child” standard. If there are circumstances under which one party would likely receive deportation, that may impact the court’s decision regarding child custody matters.
Abuse and Immigration Status
Any person that suffers any kind of psychological, emotional, or physical abuse that is in the United States illegally can apply to become a legal resident through the Violence Against Women Act. If the person suffering the abuse attempts to take the children out of the country there are several different laws that will intersect including both state law and immigration law (as well as potentially the law of the country they are traveling to.) If a person takes the children out of the country, it may prove legally challenging to get them back because at that point they are under the jurisdiction of another country’s laws.
If the person takes their children to another country against the wishes of the other parent, one important question is if the other country is a signatory to the Hague Convention. If they are a signatory to the Hague Convention then the country will likely send those children back to the United States. However, as Dario Romero points out, these cases are incredibly complex and often take years to resolve. If the country is not a signatory to the Hague Convention then it becomes nearly impossible to ensure that the children are returned to the United States.
What To Do if You Are Married Without Legal Immigration Status
If you are married to a United States citizen or a resident of the United States, you may have the legal right to receive a green card. In some cases, a person may have to leave the country and then return, and in other cases, they may simply have the ability to file for an adjustment of status. Again, if there are other facts and circumstances (such as abuse) there are other channels in which a person can attempt to receive legal status. Additionally, it is important to note that the laws regarding immigration are quite complex, and often change depending on which country the person comes from.
How an Experienced Divorce and Immigration Attorney Can Help You Obtain Legal Status
Consider visiting with an experienced family law attorney that understands the intersection between divorce and immigration law. We understand that divorce alone can prove to be emotionally and financially challenging, however, adding the issue of immigration can create additional legal complexity to your divorce. Contact an experienced family law attorney at My Modern Law today at (480) 462-7958 to receive answers to your questions regarding both your divorce and your immigration status today.
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