The USA takes pride in welcoming immigrants from all over the world to mingle with our citizens and call it home. However, differences in citizenship are liable to cause headaches in certain legal cases.
At our Wisconsin law firm, we often meet families dealing with both immigration and family law issues. A wife might worry about her green card during a divorce. A father might struggle to arrange child visitation while his visa expires. A mom might need help getting child support from her ex-spouse, who moved abroad.
These situations arise more often than you might think here in Wisconsin. That’s why it’s crucial to understand how family law and immigration intersect. Knowledge is power. When you know your rights and responsibilities, you can make better decisions for yourself and your family.
This article provides general information only and should not be considered legal advice. For guidance specific to your situation, please consult with both a family law attorney and an immigration attorney.
Marriage and Immigration Status
The green card has gotten quite a reputation in movies and TV shows. But at its core, it’s simply a document that allows someone to live and work permanently in the United States. Things get interesting when that green card comes through marriage. The process isn’t as simple as saying, “I do.” The government carefully reviews these marriages to prevent fraud while protecting genuine couples.
Marriage-Based Green Cards
When you marry someone from another country, several important steps follow. First, the U.S. citizen files Form I-130 to ensure the government your marriage is real. You’ll need to provide evidence like your wedding photos, marriage certificate, and proof you live together. Joint bank statements, shared leases, and pictures from family events all help show your relationship is genuine.
Then, the immigrant spouse files Form I-485 to ask for permanent residence. This form covers your background, job history, education, health, and any criminal record. The government wants to know your plans in America and make sure you qualify to stay.
If you’ve been married less than two years when the green card is approved, it comes with conditions. Think of it as a trial period. After two years, you must file Form I-751 to remove these conditions. This extra step helps prevent marriage fraud.
Good Faith Marriage Requirement
This is where most of those dramatic TV storylines come from! The government needs to know your marriage is genuine. Getting married just for a green card is considered fraud. Red flags for immigration officials include couples living apart right after marriage. Some never spend time together or even speak after the wedding!
Getting caught in a fake marriage leads to serious trouble. The immigrant spouse faces deportation. The U.S. citizen could go to prison for up to five years under 8 U.S.C. § 1325(c). Both might pay heavy fines.
Affidavit of Support (I-864)
Here’s something many people don’t realize: When you sponsor your spouse’s immigration, you sign a legally binding contract. The I-864 Affidavit of Support means you’ll provide financial support to keep them above 125% of the federal poverty level. And here’s the kicker – this obligation continues even after divorce! In Wis. Stat. § 767.55, courts recognize this as an enforceable contract.
For example, if your ex-spouse earns less than the poverty threshold, you might need to make up the difference. Even if they remarry, your obligation continues until they become a U.S. citizen or earn 40 quarters of work credits (roughly 10 years.)
Impact of Divorce on Green Card Status
Unfortunately, just like any other marriage, a marriage between immigrant and citizen/LPR spouses can also end in divorce. However, the immigration process adds an extra layer of complexity to a divorce proceeding.
For those with conditional residence, timing matters. If you divorce before removing conditions on your green card, you’ll need to file a waiver. You can prove the marriage was genuine even though it ended or document abuse if that was the case.
Good news for permanent residents: Once you have your unconditional green card, divorce typically won’t affect your status. However, it might impact how soon you can apply for citizenship.
Divorce and Immigration Consequences
After some trouble in paradise, couples sometimes decide to part ways. When immigration is involved, the process gets more complicated.
Impact on Pending Immigration Applications
A divorce stops most marriage-based immigration applications. The immigrant spouse might need to find another way to stay legally in the U.S., return to their home country, or apply for a different type of visa. Sometimes, they can prove extreme hardship to stay. Employment-based visas, student visas, or family sponsorship through other relatives might provide alternatives.
VAWA Self-Petitions
The Violence Against Women Act provides a safety net. Despite its name, it protects all genders. If your U.S. citizen or permanent resident spouse abused you, you can petition for a green card independently. You’ll need to show:
- The marriage was in good faith
- You suffered abuse (physical or extreme mental cruelty)
- You have good moral character
Abuse takes many forms. Physical violence, threats, emotional abuse, financial control, and isolation from friends and family all count. Some abusers use immigration status as a weapon, threatening deportation to maintain control. You can prove abuse through police reports, medical records, shelter records, counseling notes, and statements from witnesses.
U Visas
Victims of domestic violence, assault, or other serious crimes might qualify for a U visa if they help law enforcement. This offers another path to legal status independent of the abusive spouse.
Child Custody and International Issues
Perhaps the most beautiful thing to come out of a marriage is the creation of a new life. However, when a couple with children decides to get divorced, it can be extremely complicated, especially if one or both parents are immigrants or have an international background.
International Child Abduction
One of the scariest situations any parent can face is international child abduction. When one parent takes a child to another country without permission, it creates a devastating crisis for the family. The Hague Convention on Civil Aspects of International Child Abduction helps solve these cases. This international treaty helps return children who are wrongfully taken from their home country.
The Hague Convention works when a child is taken to or kept in a different country from where they usually live. For example, if a parent takes a child from Wisconsin to France without permission, the Hague Convention can help bring them back. The treaty requires courts to return children to their home country quickly so the regular courts there can decide custody matters.
To get a child back under the Hague Convention, the left-behind parent must act fast. They need to file special paperwork, work with government offices in both countries and prove that the child’s regular home was in the U.S.
Custody Orders and Travel Restrictions
Wisconsin courts take international travel seriously in custody cases. Most custody orders include specific rules about taking children abroad. Parents usually need written permission from the other parent or the court before traveling internationally with their children. This becomes even more important when there’s worry about possible abduction.
Impact of a Parent’s Immigration Status on Custody
A parent’s immigration status alone shouldn’t decide who gets custody. Wisconsin courts care most about what’s best for the child. But they do consider how deportation might affect the child. If a parent might be forced to leave the country, courts think about how this could impact the child’s stability, education, and emotional well-being.
Jurisdiction under the UCCJEA
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets rules for which court can decide custody when multiple states or countries are involved. Wisconsin follows these rules under Wis. Stat. § 822.01. The law helps prevent parents from moving children to different places just to get a better custody ruling.
Child Support and Spousal Maintenance
Caring for the child doesn’t end after establishing where they will be residing. They need financial stability as they grow and develop to be well-adjusted adults.
Enforcement Across International Borders
Getting child support becomes trickier when one parent lives in another country. While many countries have agreements with the U.S. about child support, collecting payments can take longer and cost more. Courts might require special payment arrangements when a parent lives abroad.
Impact of Immigration Status on Ability to Pay
A parent’s immigration status affects their ability to work legally in the U.S. Without proper work authorization, they might struggle to earn enough to pay support. Courts consider this when setting support amounts, but they still expect parents to meet their obligations if possible.
Affidavit of Support Obligations
Remember that I-864 Affidavit of Support we discussed earlier? It matters here, too. Even after divorce, the sponsor must keep supporting their ex-spouse. The immigrant spouse can take their sponsor to court if they don’t receive this support. This obligation exists separately from regular child support or alimony.
Seeking Legal Help
These situations are stressful enough without the added complexities of navigating Wisconsin law. You need someone in your corner who understands both family law and immigration. While one attorney might excel in divorce proceedings, another might better handle immigration paperwork. Together, they ensure nothing falls through the cracks.
Conclusion
Family law and immigration create a complex web of responsibilities and rights. But you don’t have to figure it out alone. If you’re facing these challenges in Wisconsin, reach out to qualified attorneys who can protect your interests and guide you through the process.
