Immigration status can make divorce even more difficult, and it can cause many questions to arise. For example, will you be able to get custody if you are not in the country legally? Are the other parents obligated to bring the children back? What is a fiancé visa? Countless questions arise when it comes to immigration and family law. Below, we will learn a bit more about some of the questions that tend to come up again and again.
What Happens with a Fiancé Visa?
If someone is brought into the United States on a fiancé visa, they are supposed to get married within the first 90 days of arriving in the country. If they are not married in that amount of time, it could affect their status. If they are engaged and have a child together, but they are breaking up before they are married, it can affect their case and what happens with the custody of the child. There are certain exceptions to this, such as if there has been abuse in the relationship.
After they are married, they have to apply for an adjustment of status, which will make them a legal resident. If they were to get divorced before they make that adjustment of status, it could affect their ability to stay in the country. This is because they wouldn’t have had the legal status of being a citizen, which means they could be deported.
If they are married and the spouse goes through the status change and Green Card process and then gets divorced, there could still be questions raised. For example, how long were they married? Did they only marry because one of the people wanted to come to the United States? If they have been married for less than two years, they will get a conditional Green Card and will have to come back in two years to apply for the removal of those conditions. They will have to show that they are still married. If they are divorced, they need to show that they entered the marriage in good faith.
Can People Get Deported Because of an Angry Partner?
In some rare cases, there may be a problem in the relationship and one party will want to know whether they can call Homeland Security to get them deported. If the person who came to the United States doesn’t have legal status or is pending legal status, and they overstayed their Visa or entered illegally, it could be possible to have them deported. This is because they would be considered to be violating federal law.
While this could happen, and these types of calls occur, it doesn’t necessarily mean that they will be deported or detained. Typically, Homeland Security and ICE are more focused on people who are in the country illegally who have engaged in criminal activity, or who have a criminal background.
You will also find that in family court, they tend not to care about such matters because it is not relevant to the case at hand or what is in the best interest of the children involved. The only exception would be if there is the potential for immediate deportation.
What does happen frequently is this tactic is used by people to intimidate their partner or ex. They might threaten to have the other person deported or to take away their children. In cases like this, the threats could be considered abuse. There might also be other instances of abuse in the relationship. if that’s the case, the person without legal status could apply for the Violence Against Women Act (VAWA). It’s possible to apply to become a resident under the act if the victim can show that they have been suffering abuse and threats.
What Happens with Children Taken Out of the Country?
If a person doesn’t have legal status and leaves the country with the children, several different jurisdictions will come into play. There is state law, federal law, and the law of the country where the person is from. What can a parent do about this? It will depend on a host of factors because it becomes an international law problem and there are so many factors at play. As you can imagine, these types of cases can be difficult. If the country is a signatory to the Hague Convention, there is recourse.
The Hague Convention deals with this particular type of problem. Countries that have signed this agreement have promised that they will send the children back to the original jurisdiction. Still, these cases can be hard, and they can take many years.
What Should Someone Do If They Don’t Have Legal Status?
If someone is in the country, but they don’t have legal status, it can often be difficult to know what to do or how to proceed. In cases where they are married to a US citizen or resident, they should get a legal consultation. In some cases, they may be able to get a Green Card. Other times, the law might require them to leave the country and then come back. There is also the option of VAWA in those cases where abuse has occurred.
It may also be possible for a family-based petition to be filed. A parent, for example, could file for someone. Of course, there is a waiting list, and it may take longer for people from certain countries to be allowed in with a family-based petition. In Mexico, for example, this option could take up to 20 years.
Immigration Law is Complicated
The laws surrounding immigration are complex, and they change with some regularity. Trying to navigate the legal waters of immigration is not something that anyone will want to attempt on their own. Instead, the best course of action is to take the time to speak with a reputable attorney that is well-versed in this type of law. Get a legal consultation and see what type of advice they can offer to help you with your quest for legal status.
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