Many people in New York are immigrants from other countries. Your spouse may be one of them. When divorce becomes inevitable, you will also have to consider how to handle immigration issues relevant to you or your spouse. Unless obvious immigration frauds are involved, New York courts are usually sympathetic towards immigrant spouses and their children, and strive to maintain the continuance and stability of the life of an immigrant spouse and his/her children. However, few divorce lawyers are familiar with immigration consequences following a divorce. You should bring their attention to your immigration concerns and insist on preserving your immigration interests in divorce proceedings. This article intends to help you present your immigration matters to your attorney or the court when you are considering a divorce.
I. Financial Obligations of a Spouse-Sponsor
If you sponsor your spouse's immigration applications, you should withdraw your sponsorship promptly because you have assumed the responsibilities to support your spouse and her/her dependents by sponsoring his/her immigration applications. When you sign the Affidavit of Support, you accept legal responsibility for financially supporting the sponsored immigrant(s) until they become U.S. citizens or can be credited with 40 quarters of work. Any joint sponsors or household members whose income is used to meet the minimum income requirements are also legally responsible for financially supporting the sponsored immigrant. If the immigrant receives any "means-tested public benefits," you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Federal means-tested public benefits include Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits.
Under New York law, a divorce automatically terminates your support obligation towards your spouse unless the court orders otherwise. However, the divorce does not automatically terminate your financial responsibilities towards your immigrant spouse before he/she becomes a U.S citizen unless she/he leaves the Unites States. To avoid support responsibilities imposed by immigration law, a spouse-sponsor should withdraw the Petition for Alien Relatives and the Affidavit of Support as soon as possible.
II. Immigration Proceedings after a Divorce
When an immigration application based on marriage is pending, the immigrant spouse will be considered out of status upon dissolution of the marriage. Removal proceedings sometimes become an eminent possibility after a divorce. As soon as the USCIS denies the application on the ground of divorce or on the ground of withdrawal of the application by the citizen spouse before the final divorce, the immigration authority will initiate a removal proceeding. However, the USCIS will grant voluntary departure in most cases.
A person who immigrates to the U.S. based on a marriage that is less than two years old at the time of his/her admission will receive conditional permanent residence. If the marriage is still intact at the second anniversary, the immigrant spouse will receive a full permanent residence. Conversely, if the marriage is dissolved, the immigrant spouse will lose his immigrant status and become deportable. Where the qualifying marriage has ended in divorce or annulment during the two-year conditional residency period, the conditional resident may apply for a waiver of the joint filing requirement based on the parties' good faith when they entered into the marriage. However, the waiver is not available to a conditional resident whose marriage has broken down but which has not and will not be legally terminated in the near future. In other words, the good faith waiver cannot be filed when a divorce has been filed but not yet complete. Therefore, in a case of conditional resident, the immigrant spouse may be more willing to finalize the divorce.
