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Family law and immigration

The Intersection of Family Law and Immigration

by | Apr 29, 2021

Family law and immigration are two areas of the law that often times overlap with one another. Immigration issues may arise and have significant impacts in the context of divorce and child custody matters.

Family-based immigration is one of the top ways through which immigrant visas are obtained in the United States. Family members of U.S. citizens and Lawful Permanent Residents may be able to seek Lawful Permanent Resident Status and later naturalize and become U.S. Citizens. This includes spouses, children, parents, and siblings. The eligibility and processing times for the family-based applications will vary depending on whether the petitioner is a U.S. Citizen or a Lawful Permanent Resident and the relationship between the petitioner and the visa beneficiary. Additionally, depending on a variety of factors, the immigration proceedings may be completed through an adjustment of status application within the United States or abroad through consular processing at a U.S. consulate or embassy. 

Immigration matters can complicate a divorce in instances where one spouse’s immigration status is dependent on the other spouse. Such is the case where the spouse’s Lawful Permanent Resident status is based upon their marriage to a U.S Citizen or Lawful Permanent Resident spouse. If the immigrant spouse has already obtained Lawful Permanent Resident status, meaning they have their greencard, then a divorce will not divest them of such status. If instead the immigrant spouse only has Conditional Permanent Resident Status at the time of the divorce, meaning that the spouses were married for less than two years prior to applying for their greencard, then although a divorce will not automatically divest the spouse of their status, it can certainly cause speculation from USCIS as to the bona fides of the marriage. Ultimately as long as the Conditional Permanent Resident status spouse proves that despite the divorce, the marriage was entered into in good faith and not in an attempt to circumvent immigration law, the conditions on the greencard can be removed two years after the conditional greencard was originally granted. The only difference would be that the Lawful Permanent Resident ex-spouse would have to wait five years instead of three to obtain their U.S. Citizenship.

In cases where one spouse’s immigration status is dependent on the other spouse’s visa, then the spouse with the derivative visa will lose their status when the divorce is finalized. They would need to apply for another type of visa, or leave the United States to avoid accumulating any unlawful presence and triggering negative immigration consequences.

Another area of concern is child custody. Undocumented parents often worry about their rights and protections when it comes to a custody dispute over their child when the other parent has legal status. The main factor that courts consider when determining child custody is what is in the “best interest” of the child. There are many considerations involved in making this determination such as each parent’s ability to provide a stable home environment, their mental and physical health, and the wishes of the child once they are old enough to make a reasonable decision. Although a parent’s immigration status in itself would not affect child custody, deportation would be a consideration that a court would most likely factor into a child custody determination since it would have a direct effect on the child’s life.

It is important to hire an attorney that understands the complexities involved in a family law matter with immigration considerations. Our firm offers in-person and virtual consults, if you have any questions or concerns about the topic of this Article or any corporate, commercial, employment, family, or construction law issue, please feel free to call our office at 305-460-0145 or to schedule a consult here.

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