Divorce is tricky. For most, divorce is a trying time rife with emotions and controversy. In a typical divorce, there are several issues to be decided: child custody, support, alimony, division of assets and debts. For some, there are far deeper issues to be considered, including whether the divorce is valid for purposes of future immigration proceedings.
Immigration affords United States citizens the opportunity to confer immigration benefits on their spouses. Notwithstanding additional barriers for individuals who entered the country without appropriate documentation, an immediate relative petition can bestow upon an immigrant the benefit of obtaining lawful permanent resident status through the adjustment of status process. But what if either party was previously married? A copy of the document terminating the previous marriage must be submitted to the United States Citizenship and Immigration Service (USCIS).
Divorces in the United States can often be slow and costly. In Massachusetts, for example, the process can take several months or years. Even after the divorce hearing, the nisi period allows for the entry of final judgment only after 90 days from the date of entry of nisi judgment. In other countries, the divorce process is streamlined, and a divorce can be obtained quickly, often in a matter of days. In some countries, the divorce process does not require the appearance of either party, and a divorce may be obtained through a power of attorney.
Immigration processes, even those that may seem simple at first glance, can become complicated when a foreign divorce is involved. USCIS considers a foreign divorce valid “depend[ing] on the interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried.” Massachusetts recognizes foreign divorces if “the foreign court has jurisdiction over the cause of the case and over both parties.” Because of the jurisdictional requirement, divorces obtained in jurisdictions with no residence requirements are not recognized in Massachusetts. This means that a divorce obtained in a foreign country while both parties resided in the United States is not valid in Massachusetts.
It follows that a foreign national seeking immigration benefits after a divorce obtained in a foreign jurisdiction — whether it is his or her own divorce or the divorce of the United States citizen spouse — must tread carefully. If the divorce was obtained while both parties resided in the United States, then the divorce is not valid. Because the divorce is not valid, any subsequent marriage is not valid. The invalidity of the subsequent marriage will result in a denial of any applications for immigration benefits based on the invalid marriage.
One must take steps to cure the defect before filing any applications with USCIS. First, a valid divorce must be obtained, whether in Massachusetts or in another competent jurisdiction. The foreign national and the United States citizen spouse must then either remarry or petition the Probate & Family Court to affirm their marriage. Once the marriage is affirmed or the parties are remarried, they may proceed to file their documentation with USCIS.
Family practitioners, while not immigration practitioners, must be mindful of these procedures and advise clients accordingly. Similarly, immigration attorneys should be well-versed in these issues to avoid costly mistakes for clients.
Joseph Molina Flynn is a graduate of the University of Michigan Law School. He has offices in Providence and Boston and focuses his practice on immigration and family cases.