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

Lindsey Obenhaus, Aimee Pingenot Key | August 31, 2022

The role of immigration status in family law cases is often overlooked. A party’s legal immigration status may impact a divorce or child custody proceeding tremendously. As mixed-status families are becoming more common, this blog provides an overview of some immigration issues encountered in family law practices.

Immigration Statuses

If your client or their spouse is not a US citizen, then 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.

A nonimmigrant visa is issued to a person with permanent residence outside the United States, but who wishes to be in the United States on a temporary basis. An immigrant visa (IV) is issued to a person wishing to live permanently in the United States and a nonimmigrant visa (NIV) is issued to a person with permanent residence outside the United States, but wishes to be in the United States on a temporary basis for tourism, medical treatment, business, temporary work or study, as examples.  There are nonimmigrant visas based on employment in the United States. There are nonimmigrant visas based on family relationships.  There are nonimmigrant visas based on humanitarian concerns.

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 visa or U.S. residency status.

Special Issues in Divorce and Child Custody Proceedings

There are several scenarios where divorce may impact a noncitizen’s ability to apply for or retain their US 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, then there is a possibility that their application will not be approved. Divorce 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 is final, then the noncitizen’s status will fall out of eligibility for U.S. residency regardless. 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 “children” under immigration law before and after the divorce.

Child custody proceedings can be complicated when one or both parent’s permanent status 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. It is possible for a noncitizen spouse to 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. It is important for practitioners to be mindful of this potential motivation so they may strategize appropriately for their client.

While this article 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 issues will help family lawyers provide thoughtful and strategic counsel to these increasingly common cases.

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Lindsey is an experienced family lawyer who excels in handling complicated financial issues in divorce, including business and real estate valuations, complex property division, and asset tracing. Lindsey was named D Magazine’s Best Lawyer in 2021 and 2022 and was also named D Magazine’s Top Lawyers Under 40 for two consecutive years.

Aimee is on the cutting edge of changes in family law, serving on the State Bar of Texas Family Law Council legislative committee that shapes child support and family law policy. She has been selected to “Best Lawyers in Dallas: Family Law by D Magazine”, 2017, 2019 and 2020, and named to the Texas Super Lawyers Top 100: Texas Super Lawyers, Top 100: Dallas/ Fort Worth Super Lawyers and Top 50: Women Texas Super Lawyers lists, Thomson Reuters, 2017-2021.

Aimee Pingenot Key and Lindsey Obenhaus are Board Certified lawyers in Family Law at Goranson Bain Ausley, a family law firm with offices in Dallas, Plano and Austin.

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

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