Family Law and Immigration: Understanding the Connection
It makes sense for someone to search for an immigration attorney when dealing with an immigration petition. However, it is also wise to consult with a family law attorney. Immigration and family law are complex areas of law that are intertwined, which can mean that your immigration status highly depends on a family law case.
If you came here as an unaccompanied minor and want to self-petition as a special immigrant juvenile (“SIJ”), you should consult with an attorney who is familiar with guardianships and custody cases. To be eligible for SIJ status, a petitioner must have a court order issued by a juvenile or a family court, determining that the petitioner has been abused, neglected, abandoned, or subject to similar maltreatment and because of that, it is not in his best interest to return to one or both parents. INA § 101(a)(27)(J); 8 CFR § 204.11.
The U.S. Citizenship and Immigration Services (“USCIS”) requires specific findings or determinations in the family court orders. Id. To ensure that the family judge reaches the necessary conclusions, an attorney must properly lay out the child’s circumstances. More importantly, the petition must include a legal analysis based solely on state family law – therefore these family law cases require specialized legal knowledge and skill. A skilled attorney could also help you decide whether to obtain a court order through a guardianship or child custody matter.
There are other immigration cases where family law is an important component. Marriage-based petitions are probably the most common family-based petitions filed in the U.S. An approved petition where the spouses have been married less than two years, the beneficiary obtains a conditional permanent residence card (“conditional green card”). 8 USC § 118a. The conditional green card is only valid for two years. The beneficiary and the U.S. citizen spouse must petition for the removal of the conditions 90 days prior to the expiration of the green card, otherwise, the couple has to begin the entire process from the beginning, or, in rear cases, the immigrant spouse may be placed in deportation proceedings.
Unfortunately, marriages can fail quickly, and immigrants end up in a tough position, such as not having their spouse jointly petition to remove their conditions. Also, U.S. citizens may want to get an annulment rather than a divorce. It is important to know that an annulment creates a problem in marriage-based petitions because it is as if the marriage never occurred. However, a divorce may still allow a conditional permanent resident to remove his conditions and obtain a permanent green card. If divorced prior to the two-year deadline, a petitioner may petition to remove conditions immediately and does not have to wait for the two years to pass.
The timing is crucial in these cases because failure to request to remove the conditions timely may result in removal proceedings. A skilled family law attorney can advise you how to obtain a divorce even if your U.S. citizen spouse requested an annulment, and whether it can be obtained sooner rather than later. Always tell your family law attorney if you have family-based immigration proceedings that can be affected by a divorce.
There is another family law case that can either help or hurt your immigration case, the temporary protective order (“TPO”). If you are requesting relief as a victim of domestic violence by your legal permanent resident or U.S. citizen spouse, a TPO can be your friend. Obtaining a TPO may serve as evidence to establish a prima facie case in VAWA (Violence Against Women Act) cases. However, if you are an immigrant and a TPO was obtained against you, it can become your enemy. The TPO itself will not likely affect your immigration case but violating a TPO is a criminal offense, and it can get you arrested and deported. 8 USC 1227(a)(2)(E)(ii). A family law attorney can help you oppose a TPO application and in some cases, help you negotiate obtaining a behavior order instead, which does not carry criminal or immigration consequences.
These are only a few examples of the connection between family and immigration law, but there are other cases where family law can become relevant, such as parent-child and brother-sister petitions, and/or fiancé visas.