4/1/15. Nuts and Bolts of Family Practice. Domestic Relations and Immigration. Federal Government and Immigration

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1 Nuts and Bolts of Family Practice Immigration Special Issues in Family Law By: Alvaro L. DeCola, Esq. DeCola & Lorenzon, LLC Attorneys at Law May 28, 2015 Akron Bar Association Domestic Relations and Immigration Domestic Relations is a matter of State Law Immigration regulated by Federal Law Depending on circumstances, whatever happens in one area may have an effect on the other. Federal Government and Immigration In general, Immigration issues falls under the purview of the Department of Homeland Security. Depending on the type of issue of processes, a case may be handled by: Citizenship and Immigration Services [USCIS] Custom and Border Protection [CBP] Immigration and Custom Enforcement [ICE] 1

2 Federal Government and Immigration When dealing with immigration issues abroad, in general the State Department via the United States Consulate in a given country handles those matters: Processes originated in the United States that require the U.S. Consulate to handle them are submitted to the National Visa Center [NVC] Immigration Overview Non Immigrant v. Immigrant visas Non-immigrant Visas Tourism, Study, Employment [Specific Purpose and Limited in time] Immigrant Visas Permanent Residence in the U.S [Employment or Family based Derivative immigration benefits for dependents] Immigration Overview Becoming a U.S. Citizen Naturalization Some of the requirements to become a citizen include: Residence requirements, Good Moral Character, Physical Presence, Making Uncle Sam happy every year, Selective Service Registration, etc. 2

3 Immigration Overview - Removal DEPORTATION Who can get deported: Permanent Residents [Green Card Holders] Aliens in Non-immigrant Status [Students, Workers in different categories, etc.] Undocumented Aliens [Foreigners who entered the country without inspection] Deportation comes as a result of violations of Criminal and/or Immigration Laws. Overlapping of Immigration and Domestic Relations Family Based Permanent Residency Domestic Violence Naturalization Deportation Legal Permanent Residence [LPR] through family Under immigration rules, there s a distinction with respect to family when it comes to granting immigration benefits: Immediate Relatives: Spouses of U.S. Citizens, Children under 21, and Parents of U.S. Citizens over 21. (Those in this category are eligible for green cards immediately). Other relatives fall within different Family Based Preference Categories: Children of U.S. Citizens that are over 21, Spouses and children under 21 of LPR, Siblings of U.S. Citizens. (There are 4 preference categories all with different wait times, anywhere from a couple of years to 15+). Note, under the preference categories, there is a distinction between children 21+ of U.S. Citizens and LPRs if they are married. 3

4 MARRIAGE Marriage to a non-us Citizen is generally the first step in family based immigration cases. Conditional Resident status is granted if marriage is under 2 years; This is a very important consideration for the Domestic Relations practitioner. Permanent Resident status is granted if marriage if over 2 years; Once LPR is granted, there is no expiration date. However, Green Card is renewable every 10 years. LPR terminates by Naturalization, Abandonment of status, or Deportation. MARRIAGE For immigration purposes, a marriage must be bona fide at the time parties enter into marriage; A marriage entered into for the purpose of obtaining an immigration benefit is considered fraudulent and makes the alien deportable; Conditional Residents must continue to be married to remove the conditional status; Domestic Relations practitioners should note that there may be avenues to overcome the two-year requirement but further analysis of the particular case is required. MARRIAGE If the marriage is terminated through divorce or annulment within two years after the alien gains Resident status, the marriage is presumed to be fraudulent and it may subject the alien to deportation. 8 USC 1227(a)(1)(G), INA 237(a)(1)(G). When assisting an immigrant client with a divorce, dissolution, or annulment, it is crucial to determine has a Conditional Residence; Proving that the marriage was entered in good faith through documentary evidence of commingling of assets, debts, joint tax returns and other documentation may assist the client overcome the presumption and help client gain LPR status despite the termination of the marriage. 4

5 AFFIDAVIT OF SUPPORT An Affidavit of Support is required in all Family Based cases to ensure alien will not become a public charge; The Affidavit of Support is a contract between the Sponsor(s) and the government; This contract is enforceable by the Sponsored Alien and any Federal or State government agency providing means-tested public benefits The Affidavit of Support ensures the Sponsor(s) meet the minimum income requirements based on household size. AFFIDAVIT OF SUPPORT The Affidavit of Support is binding until: Alien becomes a U.S. Citizen; Alien has earned 40 qualifying quarters under Title II SSA; Alien dies; Alien abandons LPR status. AFFIDAVIT OF SUPPORT Affidavit of Support survives Divorce, except if the marriage was fraudulent; For the domestic relations practitioner, the Affidavit of Support becomes a major issue when representing immigrants. 5

6 ADOPTION An adoption, although bona fide, does not by itself create immigration rights for the adopted child or his/her parents; In order to qualify for immigration benefits, the adoption must be completed prior to the child s 16 th birthday and that the child be in the legal custody of, and reside with, the adoptive parents for at least two years before an immigrant visa petition is filed; Also, statute is very clear that no natural parent of any such adopted child shall there-after, by virtue of such parentage, be accorded any right, privilege, or status. 8 USC 1101(b)(1) (E), INA 101(b)(1)(E). WEDLOCK The mother of a child born out of wedlock may petition for her child without any issues; The father of a child born out of wedlock must go through a more intensive inquiry. The statute requires that the father of a child out of wedlock either: Legitimate the child under the child s residence or domicile, or under the law of the father s residence or domicile, whether in or out of the United States, before the child reaches 18, and that the child be in the father s legal custody at the time of the legitimation; or Establish that a bona fide parent-child relationship existed before the child turned USC 1101(b)(1), INA 101(b)(1) DOMESTIC VIOLENCE An Alien victim of Domestic Violence may obtain Permanent Resident Status if: Alien is battered or subjected to extreme cruelty by a U.S. Citizen or LPR spouse/former spouse; VAWA U-Visa 6

7 DOMESTIC VIOLENCE Aliens who are perpetrators of Domestic Violence or who violate criminal or civil protection orders are subject to removal proceedings and deportation. Any alien who at any time after entry is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. 8 USC 1127(a)(2)(E)(i), INA 237(a)(2)(E)(i). Likewise, any alien who has an injunction issued to prevent violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or custody orders), whether obtained by filing an independent action or as a pendente lite order in another proceeding, is deportable. 8 USC 1127(a)(2)(E)(ii), INA 237(a) (2)(E)(ii). NATURALIZATION An LPR may apply for Naturalization 3 years after becoming an LPR if married to a U.S. Citizen. Otherwise, an LPR may apply after 5 years after LPR status was granted. An important issue to be aware of is the date of separation when applying for Naturalization. USCIS requires all divorce decrees to be filed and may request the divorce complaint to verify the date of separation. If complaint contradicts applications Naturalization may be denied based on fraud and Alien may be placed in removal proceedings. NATURALIZATION There is a Good Moral Character requirement when applying for Naturalization. From the Domestic Relations stand point, only a few issues may deal with the Good Moral Character requirement. Domestic Violence. The willful failure or refusal to support dependents. A finding against Good Moral Character may result in denial of Naturalization, and depending on the basis for it, an Alien may be placed in removal proceedings based on prior conduct. 7

8 Know Your Client Needs and Determine Immigration is an Issue Is your client an immigrant? Is the adverse party an immigrant? Do they hold non-immigrant visas? Do they hold immigrant visas? Are they undocumented? LEGAL DISCLAIMER The information provided in this presentation is not intended as legal advise. The information herein is general in nature and may not be applicable to all scenarios. Facts of individual cases differ. Consult with an immigration attorney with regard to specific cases. Q & A 8

9 Presenter Contact Information Alvaro L. DeCola, Esq. DeCola & Lorenzon, LLC Attorneys at Law Wolf Ledges Parkway, Suite 400, Akron, OH Tel.: (330)

10 Nuts and Bolts of Family Practice Immigration Special Issues in Family Law General Outline May 28, 2015 State Jurisdiction and Federal Jurisdiction Federal Government Agencies dealing with Immigration Immigrant v. Nonimmigrant visas Quick overview of becoming a U.S. Citizen Most common areas where Immigration overlaps with Domestic Relations Legal Immigration status through family Marriage/Divorce and Immigration status Other Domestic Relations issues affecting Immigration status By Alvaro L. DeCola, Esq. DeCola & Lorenzon, LLC Attorneys at Law (330) Wolf Ledges Prkwy, Suite 400 Akron, OH 44311