Attorney Scott T. Decker from Greenberg Traurig spoke at the March 1 breakfast meeting of the Family Law Section. He spoke about immigration laws, rules, and regulations that can affect divorcing families.
He began with an explanation of visas. Non-immigrant visas are the most common, and include tourism, medical treatment, business, temporary work, or study. These types of visas are fairly strict, so if you have a student visa, you can study but not work. In other words, you’ve got to stick to what the visa is for, and if you want to do a new activity, you need a new visa. Dependents can get visas to “tag along” with the primary visa applicant. For instance, a student can obtain an F1 visa, and his or her dependents can get F2 visas. However, if the primary visa holder wants a divorce or dies, then the dependents must either depart the U.S. or get their own visas. Mr. Decker sympathized with the terrible situation when a spouse dies and the dependents are left to depart the country. On a positive note, there has been a recent rise in recognizing same-sex relationships and assisted reproduction technologies where visas are concerned.
The immigrant visa (permanent visa or green card) is the second most common. Like the non-immigration visas, dependents of the primary visa applicant can “tag along.” Contrary to what the names suggest, a permanent visa is only valid for ten years, and green cards are often not green at all, but sometimes blue or pink. Mr. Decker cautions that the primary applicant and children may get a green card, but a spouse who has a criminal background may not be eligible for a dependent visa. Even if the criminal history is based on an error due to a different last name, the dependent visa may still be denied.
Unlike the non-immigration visa, generally if you get divorced after getting a green card, you can stay in the U.S. The big exception to this is that there are safeguards to prevent potential applicants marrying a U.S. citizen solely to obtain a green card. The application process for a foreigner to obtain a green card based on marriage to a U.S. citizen is serious process that takes an average of nine to eighteen months – it’s a two and a half year wait in New York City, and only a six month wait in Tulsa, Oklahoma. Immigration officers can and do ask extremely personal questions, and the authenticity of the marriage continues examination for a probationary period of two years, meaning that even though a year may have passed since obtaining a green card, there’s a possibility that the immigrant spouse might have to depart the U.S. if the marriage fails and ends in divorce. It’s especially tough if the U.S. citizen makes allegations that the marriage was for the sole purpose of obtaining a green card. Of course, if children are born during the two-year probationary period, that’s good evidence that it’s not a fake marriage.
Interestingly, U.S. immigration law relies on individual states’ laws about parent-child relationships. Common law marriages are tricky; the immigration office tends to be unreceptive to anything that doesn’t have paperwork. Thanks to the Violence Against Women Act, there are special safety measures for dependents who are victims of domestic violence so that an abused spouse may not be forced to leave the country even if their visa is dependent on the primary visa holder or the U.S. citizen.
Mr. Decker cautioned that it is very hard to prove domestic violence without physical proof. Bare threats are hard to prove and are often perceived as he-said-she-said scenarios. The existence of TPO helps because it’s a paper trail. VAWA cases go to a separate division that is physically secure and not subject to FOYA/ORA so abusers can’t request documents.
The Sponsor Spotlight featured Lisa Lubar from the Nexus Wealth Management Group at Morgan Stanley. She chooses to specialize in divorce wealth management because she believes she can make a positive difference in the lives of divorcees who are overwhelmed and often scared of financial details such as deferred compensation, stock options, and distribution from annuities. She enjoys working for the large firm of Morgan Stanley because it provides rich resources that allow her to help level the playing field between an unemployed spouse and an employed spouse. Lisa is always happy to answer any questions and hopes that you take advantage of her expertise.
Dawn de Klerk made some board announcements that included a possible summer outing to go zip lining and/or white water rafting. Stay tuned for updates about these fun activities.
The Family Law Section invites you to our next breakfast on Thursday, April 5 at 7:30 am in the Historic DeKalb Courthouse. Lila Bradley present an analysis of the recent Georgia Supreme Court case of Patton v. Vanterpool, S17A0767 (October 16, 2017), which distinguished IVF and IUI. We’ll explore the various assisted reproduction technologies of egg donation, sperm donation, embryo donation, and surrogacy. RSVP here.