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When Do You Need Your Family Law Attorney To Practice Immigration Law (Or Vice Versa?)

It may seem like immigration law and family law are worlds apart with no overlap. In fact, there are three very common situations in which you just may need the services of an attorney who can assist with both of these areas.

Scenario #1 – A foreign national is still married but wishes to divorce in order to marry a U.S. citizen and file for permanent residency. No matter where the current marriage occurred or where the opposing party lives, if one spouse is a resident on NC, he/she may file for divorce in NC. If the opposing party lives outside the U.S., very specific procedures must be followed to provide notice and service prior to obtaining a divorce. This often involves working through the Department of State.

Once you obtain a final divorce decree, you are free to re-marry and begin the immigration process to obtain permanent residency.

Scenario #2 – This scenario may seem far-fetched, but it is much more common than people would think. You were married previously. To the best of your knowledge, you were legally divorced and then remarried. Upon filing applications to become a permanent residence, you were informed that immigration still considers you legally married to your first spouse and, thus, will not recognize your current marriage.

Often people will believe they are divorced when all legal technicalities have not yet been complied with. Perhaps the other spouse was to file the final paperwork. Perhaps the divorce occurred in a foreign country and the “traditional” process for divorce was done, but legally, the marriage never terminated. Whatever the reason, if immigration (USCIS) cannot conclusively determine that you were legally divorced, your new marriage is not legal.

The solution is the go through the proper process to legally terminate the marriage to your first spouse. Then, you must re-marry your current “spouse” and re-file immigration paperwork with USCIS. Only then can any marriage-based petition be approved.

Scenario #3 – You married a U.S. citizen or permanent resident and obtained 2-year conditional permanent residency. Now it is time to remove the conditions and obtain a 10-year card, but you and your spouse are no longer together.

U.S. immigration law allows for this possibility by setting requirements for filing the I-751 Petition to Remove Conditions, separately rather than jointly with your spouse. One of the grounds for doing so is divorce. However, there are complicated timing considerations, such as when to file the I-751 and how to navigate the process if you are not yet divorced – a common scenario since states like NC require a couple to be separated for 1 year prior to filing for divorce.

When filing separately, you must still show that you married in good faith and intended to create a life together; things just didn’t work out. You must also show that you meet the requirements for filing separately.

Scenario #4

You married a U.S. citizen or permanent resident but your spouse never filed for you to obtain permanent residency. Unfortunately, after the marriage, you spouse became verbally and/or physically abusive; perhaps even threatening to have you deported.

In these situations, the Violence Against Women Act (VAWA), allows the foreign national spouse (who may be either male or female) to self-petition for permanent residency. This means that the abused spouse has the ability to file for a green card without the involvement of the abusive spouse. Simultaneously, you may wish to file for a protective order and/or begin the process of filing for alimony, equitable distribution, child custody/support and ultimately, divorce.

If you are dealing with any of these situations, it is advantageous to work with an attorney who understands and handles both aspects of your case: immigration law and family law. The Law Office of Kelli Y. Allen will work with you to navigate both processes. Call our office today at 704-727-4900 to schedule a confidential consultation.

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