Marriage and divorce is understood differently across various cultures. That leads to different laws regarding marriage and divorce. We last touched on this subject back in 2010 in our Blawg post "A Marriage Is A Marriage, But Is A Divorce A Divorce?" Since then, the interplay of foreign marital law and US immigration law has continued to complicate matters for people who simplistically thought they could just file a petition and bring their new spouse over.

One issue that came up recently is the US law treatment at of "revocable divorces" under shari'ah, or Islamic law. Shari'ah provides a type of divorce called a "revocable divorce" (talaq raj'ee) where a husband may divorce his wife, but if they resume marital relations within a three-month period (known as the iddah) thereafter, the pronouncement of divorce is revoked and the husband and wife remain married. This can only be done twice in the life of a marriage; if it happens a third time, the divorce is final and irrevocable.

The divorce may also become irrevocable (and thereby 'finalized') if the husband and wifes do not resume marital relations during the iddah. Under US law, parties must be legally free to marry each other order to apply for immigration benefits such as a fiancé visa (K-1) or spousal visa. A revocable divorce, because it is not final and may yet permit the marriage to continue, will not be recognized by US law as permitting the parties to remarry. 

The law on irrevocable termination of a marriage (talaq baa'in) is more complex. It is different when the wife initiates her rigth to divorce (khula') and different when the husband pronounces a clear intent to divorce and thereafter does not resume marital relations during the 'iddah. However, for US immigration law purposes, the revocable divorce that becomes final when the parties do not resume marital relations during the iddah will be sufficient to be recognized as a divorce that permits remarriage. 

Practically, then, if the only proof of divorce a person has is a decree of revocable divorce, there must be some additional evidence that the parties did not resume marital relations during the iddah, or else any subsequent immigration petition filed by that person will be denied. Not because the parties are still legally married - but because of a failure of proof that the prior marriage was in fact dissolved.

Ignore this at your own peril. Don't find out the hard way, or you'll have a lot of explaining to do to your new spouse.
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Family unification has long been the foundation of the U.S. legal immigration system. This reflects our American values of keeping families united and strong. The HMA Law Firm therefore applauds the Senate's efforts to decrease the backlogs in the family-based immigration system. Current backlogs keep U.S. citizen parents apart from their adult children for, on average, about seven years, and brothers and sisters of U.S. citizens apart for about 12 years. The bill proposes to eliminate, over 10 years, a backlog of 4.7 million immigrants who have been been waiting for their green cards based on their relationship to U.S. citizen relatives.

However, here at The HMA Law Firm, we are concerned with the bill's proposal to eliminate the family-based visa category for siblings of U.S. citizens. The purpose of eliminating this category is to free up additional green card for other categories, including employment based green cards. The Senators proposing this legislation evidently think that the U.S. cannot increase employment-based immigration without decreasing family-based immigration. However, this is a wrong-headed notion, based on the faulty assumption that the U.S. can only absorb a fixed number of immigrants at a given time, even though, as history suggests, our nation's demand for immigrants is constantly in flux. Further the bill's writers seemed to have forgotten that family-based immigration supports the goals of employment-based immigration. Research shows that “close family relationships facilitate entrepreneurship because family members can support in caring for children and working in family-based businesses.” Getting rid of the sibling visa category will reduce the amount of family support that U.S. citizen entrepreneurs need to successfully run their businesses.

The Senators working on the Senate immigration bill, called the “gang-of-eight,” do not need to make this false choice between increasing employment-based immigration or supporting continued family-based immigration. Instead, they can increase skilled, employment-based immigration, while at the same time maintaining the same family-based sibling category that has been proven to spur on entrepreneurship in immigrant communities. We hope that as the Senate Judiciary Committee continues to make changes to its immigration bill, it will restore the sibling family based immigration category. It must do so to uphold our American values of fairness and inclusion. 

Carly Stadum-Liang, Esq.

The I-751 joint petition is a form used by conditional permanent residents to "convert" their two-year green cards into 10 year green cards.  If the US citizen spouse and the alien are living together in marital harmony, and file in a timely fashion - the form is easy.  That's how it's supposed to work.

Complications arise when things aren't going well in the marriage, or the couple gets late in filing the petition, or both.  Over the years USCIS has come out with several policy memorandums instructing officers on what to do with cases that aren't so clean.

Happily, I-751 procedure keeps being improved and makes more and more sense and it easier to deal with.  It's always been the law that if an I-751 is filed late, it must be filed with an explanation.  If that explanation was missing, under older law the I-751 would be denied.  Or perhaps rejected.  Under a new I-751 memorandum that was just issued in January 2013, the officer can simply request the explanation separately by issuing a Request for Evidence (RFE).  A much more preferable option than losing the filing fees are perhaps finding yourself in removal proceedings.  Or having your case rejected and having to refile it after your green card has already expired.

Confusion also arises when the marriage is not doing so well.  If a divorce is imminent - but has not been filed, or has been filed but the hearing is months away - it is best to run your situation by a knowledgable lawyer.  Chances are he's seen your situation before.  And the consequences for not filing on time are pretty severe.  Risking denial of an I-751 basically means you're betting on getting put into removal proceedings.  It's hard for a lot of conditional permanent residents (CPR's) to accept, because their cases are so "clean" (to them) they do not appreciate that USCIS must put them in removal proceedings if their I-751 is denied, even on a technicality.

As far as what a good reason is to not file an I-751: In practice, USCIS does not make the burden onerous. Frequently some relatively minor issue comes up, distracts the party, and before they know it, the green card has expired.  Our job as lawyers is to probe, probe, and probe to find the reason(s) the case was not filed on time.

But an ounce of prevention is worth a pound of cure.  Take your I-751 obligations seriously.  Be picky about the evidence you choose.  Choose good evidence: nothing too weird or off-base.  And use a lawyer. If you're filing an I-751 you already have a lengthy immigration history in the US.  File wisely.

The last few weeks this same issue has come up with such frequency we thought it appropriate to share some insight on it.

You're a US citizen.  Your aging parents are back home in, say, India.  You know a lot of people in your circle of family and friends who sponsored their parents for a green card, and their parents come visit every year to "keep it."   Others actually do immigrate here.  But, common wisdom goes, at least they don't have to deal with applying for a visitor visa.  After all, these parents have children over 21 who are US citizens.  Why shouldn't they get the benefit of permanent residence, if they can?

Yes, they can.  But that does NOT mean they should.  As many unhappy clients come to figure out, over time, that green card turns from a blessing into a curse.

It's really rather simple.  If you have a green card, you are a permanent resident.  That means you reside in the United States permanently.  If you are basically living back home and having to come to the United States every year just to "keep your green card" then you are headed for trouble.

Yes, we know the stories of Uncle and Auntie who have been living in Hyderabad for 25 years and never had any problem using their green card to enter the United States.  Just because it seems so easy  for Uncle and Auntie does not mean it will be that easy for your parents.  And you should tell Uncle and Auntie that it won't always be easy for them, either.

When a permanent resident returns to the United States, their name is run through several federal databases.  Just because Uncle's passport was not stamped when he went through customs in New Delhi does not mean that the United States government does not know he was out of the United States. 

This is because nearly all carriers - airlines, cruise ships, trains and other vehicles report certain information to the federal government.  We once had a client who left the US on a cruise ship that docked on a Caribbean island for just a few hours, and the client reboarded the ship, showing a passport only as identification to the ship's security officers.  Several months later, the client's green card was denied, because USCIS knew that the client had left the United States before receiving advance parole.

So why do some people seem to not have a problem?  Possibly it is because the databases have not flagged that person...yet.  Or the officer does not notice, or decides (through their own discretion) to give the person the benefit of the doubt.  Or the airport is so busy they simply don't have the time.  It could be a number of reasons.  But it's a waste of time to wonder why.

What you need to know is that to keep a green card, at least 6 out of every 12 calendar months should be spent within the United States.  If you spend more than 12 months outside the US, the green card is deemed abandoned (unless you get a reentry permit.)  If you spend between 6 and 12 months outside the US, there is only a presumption of abandonment.  For several years, it might not be an issue because officers would not have clear proof of abandonment.  However, if the person stays outside the US, say, 8 to 9 months or more out of the year, and does that repeatedly for 5 or more years, then officers are going to get suspicious and flag the person for secondary inspection and ask them to prove they haven't abandoned their intent.

So: Less than 6 months out of the US: green card safe.  More than 12 months outside of the US: green card lost.  In between 6 and 12 months outside the US : gray area; green card may be safe at first, but as time passes, your risk of losing the green card becomes higher and higher.

It's all the more troublesome because in the initial years, nothing happens and so the returning green card holder gets a false sense of security.  Then, out of nowhere, they get led down the hallway and questioned for 3 hours, right after (usually) a long, tiring international flight.  And be forewarned: there is no right to have a lawyer with you at the border.

The main lesson here is: apply for the immigration benefit that fits your situation.  Just because you qualify for other benefits doesn't mean it's a good idea to apply for it.  You might think it's easier (and it might be, at least initially) but as several of our clients can attest, that green card turns into a real burden.

If the person is not going to live in the US, and not going to work, and just wants to be able to come and go with ease, and has all their property, job, wealth, and ties back home - then the appropriate visa category is B-1/B-2.  If they start spending more time in the US, then they can always file for permanent residence based on their US citizen son or daughter over the age of 21.  A consultation with a lawyer beforehand can save a lot of headache down the road.

And if you're in that small but noxious minority that filed for their aging parents' permanent residence just so they can claim benefits in the United States - know that you are abusing the system, and that the databases that store information on arrivals and departures is connected to the database that stores information on disbursement of federal (and state) benefits.  At some point, a computer will be able to tell whether a person is abusing the system when their green card is swiped at the border.

We've given this piece of advice many times: Do things legally, and you'll have to do a little more work at the beginning, but very easy and relaxing later.  Do things illegally, and it'll be easy at first, but not much fun later.  

Or at least, that's about as bumper-sticker short as I can make my point.

First,  a disclaimer: I am decidedly pro-immigration.  My background and profession play on each other, strengthening my resolve to fight for the rights of those who have come here from elsewhere.

As a lawyer who focuses much of my practice in matters of US immigration, I pay close attention to the words and labels used to frame arguments in the immigration debate.

Here is my list of labels that divide, obfuscate, and malign:

• Illegal immigrant/Illegals
• Criminal alien
• Anchor baby

Let's look at each one.

Illegal Immigrant.  There's currently a debate going on among journalists as to how to describe the population of people living in a country in violation of that country's immigration laws.  You've got folks on one end who call them "illegal immigrants" (or just plain "illegals.")  Others prefer "unauthorized immigrants" or "unauthorized workers." Still others prefer "undocumented workers." 

Technically (and legally) an "immigrant" is a person who is lawfully admitted for permanent residence.  That is, a lawful green card holder.  Since the vast majority of the population we're talking about do not have green cards, it's somewhat of a misnomer to even call them "immigrants." However, it's not realistic to expect people to understand the legal difference between immigrants and nonimmigrants as defined in the Immigration & Nationality Act.  Moreover, "immigrant" could also connote anyone who attempts to enter the United States with an intent to make the United States their permanent home (i.e., has "immigrant intent.")  Colloquially, though a bit inaccurate as a matter of law, the word "immigrant" denotes someone who comes into a country not his own.

The problem is with the word "illegal." As cliché as it sounds - a human being is never illegal (ningún ser humano es ilegal).  Actions can be legal or illegal.  We can speak of illegal immigration, but not illegal immigrants, any more than we can speak of driving illegally, but not illegal drivers.

But there is a deeper problem with labeling a person "illegal." It makes it sound unrectifiable.  We hear the refrain from the right many times: "What part of illegal don't you understand?" To which my response is, "You clearly do not understand what the word illegal means."  Calling a person illegal dehumanizes them.  That leads to arrogance, enmity, racism, exclusion, and if left unchecked, genocide.

Even worse is calling people simply "illegal" as if the simple act of walking across a border forever taints every action that person henceforth takes.  Very few of us would be "legal" if we adopt this understanding.  

Some argue that "undocumented" is a euphemism.  To a certain extent, this may be true, but only because its meaning has been subtly shifted by the pro-immigrant crowd.  Perhaps, then, the best term is "unauthorized" - a word that signifies that the law that was broken was a regulatory offense, and not something necessarily indicative of bad moral character.

Criminal Alien.  The problem with this term is that it is far too general.  Under our immigration law, a "criminal alien" is any alien who commits a crime.  However, that crime could be anything from a traffic offense to a trafficking offense.  It all depends on who is using the term.  Immigration & Customs Enforcement (ICE) invariably refuses to release any "criminal aliens" from custody, whether they are guilty of driving without a license or guilty of sexually abusing a minor.  Our criminal law differentiates between categories of crime, and recognizes that the word "crime" can cover mere regulatory offenses (such as speeding) all the way to the most heinous acts imaginable.

When we call an alien a "criminal alien" we use an overly general adjective to describe them.  And the word "criminal" is a very heavy word.  It makes the person marginalized, regardless the magnitude of his offense. Are we really certain we want to treat the father of four who drove to work without a license the same as the MS-13 gang member who raped a teenage girl?  Is it fair or accurate to call them both "criminal aliens?" 

If our criminal law distinguishes between violations, misdemeanors, and felonies, and our immigration law also distinguishes between different categories of crimes (albeit differently) then our discourse should, as well.  Criminal alien lumps people together who share few common characteristics, and thereby enables all of them to be seen as the same.  It's like assuming all Asians speak the same language.

Anchor Baby.  If people really knew how hard it would be for an unauthorized immigrant to secure legal status merely by having a child on US soil, they would abandon this silly term.  First of all, although a baby born on US soil is a US citizen, that US citizen cannot sponsor their parent until they turn 21 years of age.  Even then, the parent must obtain an immigrant visa from their home country, and cannot apply for it from within the US.  Once they leave, if they have spent more than 1 year in unlawful status in the US, they are further barred from re-entering the US for 10 additional years.  So it will take any parent at least 21 years, and possibly as much as 31 years, before they can obtain lawful status simply by having a child on US soil.  There's instant gratification, there's delayed gratification, and there's this.

To hear some people tell it, a toddler can fill out an I-130 petition for an alien relative and the parent can sit comfortably in the US and wait for their green card to come in the mail, all the while sucking up welfare, food stamps, and any other government money they can get their hands on.  Nothing could be further from the truth.  The law simply doesn't work this way.

Critics usually respond with a) some aliens can apply for cancellation of removal for non-permanent residents (COR) if they have US citizen children, b) pregnant mothers can get government benefits like WIC.

Neither of these responses justifies the use of the term "anchor baby." As far as  COR is concerned, see our Blawg post about how easy it is to obtain.  And as for short-term benefits - if a pregnant mother illegally crosses the border to obtain higher quality medical care or temporary government benefits, then it's incorrect to say she is coming for the purpose of having a US citizen child.  It is clearly an abuse of the system, but to call the child an "anchor baby" belies the purpose of the abuse, and therefore does little to solve the problem.  Instead, it creates a imaginary problem, which of course can have no solution.  Its only purpose is to malign and denigrate, create an underclass, and incite patterns of racial hatred and enmity.

We need to understand that labels are merely linguistic convenience, a shorthand to convey complex thoughts that resist succinct definition.  If we fail to appreciate the lexical limits of a label, we limit our own thinking.  And we become easily lured by those who create labels for their own political ends.

Look at the facts, and remember that there is always an exception to the rule.

Laws are shaped by culture. What may be legal or lawful in one country is not in another. In a diverse country like the United States, the courts frequently have to deal with foreign laws and the resulting legal “tension” that arises.

Case in point. In international law there is a principle called comity. Comity, basically, is “legal courtesy.” In other words, a court in one country will not do anything to demean or denigrate the laws of another country, and will respect them and apply them as far as possible. It would be great if there was a binding principle like this for politicians, too – but that's a separate entry.  In 1895, the Supreme Court found that “[a] judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law.” Hilton v. Guyot, 159 U.S. 113 (1895)

So let's say two people get legally married in their home country and then come here to the United States. The marriage isn't “registered” here. Many people mistakenly believe that they are not married under US law. But this is where comity will apply. Unless there is a strong reason not to recognize the marriage (say it is a child marriage, or it was forced, or was with a relative closer than a first cousin, or is polygamous) then ordinarily it will be recognized as a valid marriage in the United States. This means if the couple wants to get divorced, they will have to obtain a divorce from an American court, notwithstanding what they may do in their home country or in their own religious tradition.

But just because the marriage is recognized, it is far from clear as to what extent: many marriage contracts have clauses for dowry, bride price, deferred bride price, property clauses, etc. and many disgruntled spouses try to enforce (or deny) such provisions when they obtain a divorce in the US. It's rarely clear, without a full-fledged legal analysis, whether an American court will enforce these provisions or refuse to do so.

If marriage laws vary, then divorce laws are literally all over the map. Even among our united States, divorce laws are discordant. And if you're talking about a divorce from overseas, it becomes even more murky.

Because bigamy is a crime that can have very unpleasant consequences – especially for noncitizens, couples in the US whose current or previous marriages or divorces were outside the United States would do well to consult with an attorney to determine which documents would be valid, and if there is any “overlap.” (Overlap being an innocuous-sounding term for being married to more than one person at the same time.) And just because a divorce is valid in one country does not mean it will be valid here!” Comity will not save in every case.

As the Court of Special Appeals of Maryland has found, “[t]he principle of comity, however, has several important exceptions and qualifications. A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought . . .” Wolff v. Wolff, 40 Md. App. 168, 389 (1978)

Bottom line: before you tell the government you're married, make sure you really are. Before you tell the government you were married, make sure you still aren't. And before you think your foreign marriage contract lets you keep your million dollar real estate empire, be sure to run it by a competent divorce attorney, who may tell you, “May be cheaper to keep her.”