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When Worlds Collide: Immigration Law Issues Within a Family Law Practice

Lindsey Obenhaus, Aimee Pingenot Key | July 11, 2024

The role of immigration in family law cases is often overlooked, but a party’s legal immigration status may have a tremendous impact a divorce or child custody proceeding. As mixed-status families are becoming more common, we’ve put together an overview of immigration divorce law and other immigration issues encountered in family law practices.

Understanding Immigration Statuses

If your client or their spouse is not a U.S. citizen, it is imperative to first understand what their immigration status is. A general understanding is helpful, and if necessary, the attorney should consider bringing on an experienced immigration attorney for consultation or to potentially provide expert testimony to the court about your client’s specific status, its limitations, and requirements.

Different Immigrant Statuses

A nonimmigrant visa (NIV) is granted to an individual who has permanent residence outside of the United States but intends to stay in the U.S. temporarily. This type of visa is for those visiting for purposes such as tourism, medical treatment, business, temporary work, or study. There are nonimigrant visas based on employment in the United States, family relationships, and humanitarian concerns as well. On the other hand, an immigrant visa (IV) is provided to someone who wishes to reside permanently in the United States.

Generally, there are dependent nonimmigrant visa statuses for the spouse and unmarried children under age 21 of the principal nonimmigrant. Many, but not all, nonimmigrants transition to immigrant visas or U.S. residency status.

What Happens When You Divorce a Non-U.S. Citizen: Special Issues in Divorce and Child Custody Proceedings

Choosing when and how to divorce a spouse who is also an immigrant can be complicated. There are several scenarios in immigration divorce law where divorcing an immigrant spouse may impact a noncitizen’s ability to apply for or retain their U.S. immigration status and remain legally in the United States.

If an individual is in the process of applying for an immigrant visa at the time a divorce is filed for, then there is a possibility that their application will not be approved. Divorcing an immigrant spouse generally ends the “dependent” and “derivative” relationships created through the immigration sponsorship process. If a client’s pending application is tied to the divorcing spouse (such as by sponsoring the nonresident spouse in some way), then the application may fail on its face. This may happen if the sponsor’s intent is revoked during the divorce. Alternatively, once the divorce of a non-U.S. citizen has been finalized, the noncitizen’s status will fall out of eligibility for U.S. residency regardless. When it comes to balancing divorce and immigration, the parties may want to agree to postpone the filing of their divorce until the U.S. residency cases are approved. Generally, the timing of the divorce should concur with a change of status to another immigration status that is not tied to the divorcing spouse. This may necessitate careful planning by the noncitizen spouse. This ensures that both parties can remain in the United States, especially for the benefit of any children of the marriage. Fortunately, divorce does not affect the parties’ children, as children remain as such under immigration law before and after the divorce.

Child custody proceedings when you divorce a non-U.S. citizen with a child can be complicated when the permanent status of one or both parents in the United States is not guaranteed due to their immigration status. In a child custody proceeding, the court will prioritize the best interest of the child when deciding issues, such as which parent to appoint as the primary conservator, whether to establish a geographic restriction on the child’s primary residence, and whether to impose any passport or travel restrictions on the children. A noncitizen spouse can be appointed as the primary conservator of the child; however, in many cases, the court will impose a geographic restriction that requires the parents to live within a limited geographic area, so that both parents can have continuing and frequent contact with their children.

As mentioned above, there are humanitarian-based categories for lawful permanency residence in the United States, including the Violence Against Women Act (VAWA). Divorce greatly affects a person’s eligibility to apply under VAWA. A person may apply if they prove to the government that their marriage to the abusive spouse was terminated within two years prior to filing the VAWA petition and there is a connection between the termination of the marriage and the battery or extreme cruelty. In these divorce cases, the noncitizen spouse will often strategically plan for a VAWA petition by alleging violence and cruelty in the divorce. Practitioners need to be mindful of this potential motivation so they may strategize appropriately for their clients.

While this does not cover all aspects of immigration law that might be useful for a family lawyer to know, it hopefully brings to light scenarios that are often overlooked. A better understanding of immigration and divorce law will help family lawyers provide thoughtful and strategic counsel in these increasingly common cases.

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Lindsey Obenhaus is an accomplished family lawyer renowned for her skill in managing complex financial matters during divorces. Her skills extend to business and real estate valuations, intricate property division, and asset tracing. Lindsey was honored as D Magazine’s Best Lawyer in both 2021 and 2022 and earned a spot on D Magazine’s Top Lawyers Under 40 for two consecutive years.

Aimee Pingenot Key is at the forefront of evolving family law, actively participating in the State Bar of Texas Family Law Council legislative committee that influences child support and family law policies. Her accolades include being named to “Best Lawyers in Dallas: Family Law” by D Magazine in 2017, 2019, and 2020, as well as being listed among the Texas Super Lawyers Top 100: Texas Super Lawyers, Top 100: Dallas/Fort Worth Super Lawyers, and Top 50: Women Texas Super Lawyers by Thomson Reuters from 2017 to 2021.

Aimee Pingenot Key and Lindsey Obenhaus are board-certified family law lawyers at Goranson Bain Ausley. For insights on divorcing a non-U.S. citizen, contact the experienced team at Goranson Bain Ausley.

*Originally published in the Family Law section of Dallas Bar Association Headnotes

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