Family Law Issues & Immigration

Marriage and Immigration

A foreign individual who marries a U.S. Citizen can immigrate to the United States and obtain Lawful Permanent Resident (LPR) status. An immigrant with LPR status is not a U.S. citizen, but has the right to reside in the country and is entitled to various legal protections. Because Lawful Permanent Residents may still be citizens of their home country, they do not have a U.S. passport. Instead, they have an LPR card—also known as a “green card.”

Immigration via marriage is one of the easiest ways for immigrants to obtain LPR status. As a result, some people enter into marriages for the purpose of taking advantage of the easier immigration process afforded to spouses. These arrangements are called “green card” marriages.

Despite the relative ease of immigration via marriage, spouses utilizing family immigration to gain entry into the U.S. are still required to jump through a lot of hoops. Federal immigration law prohibits green card marriages, so the U.S. Citizenship and Immigration Services (USCIS) demands proof a marriage was entered into primarily for the purpose of circumventing federal immigration law. As a result, immigrant spouses must keep comprehensive records of their marriage and submit to in-person interviews where USCIS officials can evaluate the validity of the marriage.

While USCIS can determine the validity of a marriage for immigration purposes, state law controls when determining the legal fact of marriage. If a prospective married couple does not satisfy the legal requirements to enter into a marital relationship, many states deem the marriage void and will grant an “annulment”—a court order declaring that the marriage never legally existed in the first place.

For example, in Virginia, a court can grant an annulment in cases involving the following:

• Bigamy
• Incest
• Minority age
• Insanity
• Fraud
• Duress and Coercion

Accordingly, the federal government’s determination that a marriage is invalid for immigration purposes does not necessarily serve as grounds for an annulment under state law. Therefore, USCIS can find a marriage to be invalid and deny an immigrant spouse entry to the U.S, but their citizen spouse is still expected to perform their marital duties—such as paying spousal support.

Importantly, a citizen spouse who applies for a family immigration visa for their wife must also sign an “affidavit of support” where they promise to help the immigrant spouse to maintain a household income at 125 percent of the Federal Poverty Guidelines. This creates an obligation between the sponsoring spouse and the federal government. As a result, an affidavit of support supersedes conflicting state court orders and contractual provisions that would contravene the terms of the citizen spouse’s affidavit of support.

Children and Immigration

Under the Fourteenth Amendment to the United States Constitution, any person born in the United States is automatically considered to be a U.S. citizen—also known as a “natural born citizen.” Consequently, some immigrants try to deliver their child while visiting the United States with the hope of getting a family immigration visa in the future based on their child’s citizenship status.

However, the citizen child of a foreign individual cannot sponsor their parent’s immigration until they are an adult. Thus, most families return to their home country with their newborn, and wait until they are the appropriate age to immigrate to the United States. Parents who illegally overstay in the U.S. will hurt their chances of obtaining a proper visa and risk deportation.

Although the law does not prohibit women from traveling to the U.S. for the purpose of delivering their child, the rules and policies for getting a visitor visa while pregnant can be complicated. Therefore, you should consult an experienced attorney before visiting the U.S. while pregnant.

U.S. citizens who wish to adopt a child from another country must do so according to The Hague Adoption Convention, depending on the country from which the adoption is sought. The Hague Adoption Convention is an international treaty that establishes uniform standards for international adoptions to prevent human trafficking for countries that are part of the treaty.

Generally, parents must go through official channels to effect an adoption from a Hague Convention country and apply for a family immigration visa to bring the child from their home country to the U.S. Also, the adopted child has a path to citizenship based on the citizenry of their adoptive parents.

Consult the Legal Team at DiPietro Law Group, PLLC.

Family law is a broad area of the law that intersects with other legal areas, such as immigration. Do you have questions about how immigration affects family law matters and vice versa? You should consult an experienced attorney from DiPietro Law Group, PLLC.