Divorce and the Fiancé Visa

By Tiffany Kamuche, Kamuche Law Firm

The benefits of marriage vary from person to person.  However, if citizenship is one of those benefits, divorce carries an extra set of consequences. This article discusses those consequences and the rule of law in which they derive. An immigrant’s path to United States Citizenship and A citizen duty for future support the most significant consequences.

It has been a long-held notion that post-martial support is rooted in Chapter 8 of the Texas Family Code.  It is important to note that divorce is a state issue and citizenship is a federal issue. This article explores how under standard divorce law, an ex-spouse may not qualify for spousal maintenance, but still have the power to create a financial obligation for his or her ex-spouse.

I.  Fiancé Visa and Status Adjustment

A fiancé visa allows a foreign party to enter the Unites States legally for the purpose of marrying a U.S. citizen and eventually obtaining citizenship through that marriage.  If a U.S. citizen wants to bring their foreign fiancé to the United States in order to get married, the U.S. citizen will need to file a Form I-129F, Petition for Alien Fiancé. This is the first step to obtaining a K-1 nonimmigrant visa for the immigrant fiancé. The K-1 nonimmigrant visa is also known as a fiancé visa.  If a U.S. citizen wants to marry foreign fiancé that is currently inside the United States, lawfully, the U.S. citizen will need to file a Form I-130, Petition for Alien Relative, and Form I-485, Application to Register Permanent -Residence or to Adjust Status, at the same time. The forms and process for this application can be found at www.uscis.gov.

To obtain a K-1 fiancé visa, the couple must intend to marry each other within 90 days of your fiancé entering the U.S as a K-1 nonimmigrant or having non-citizen’s status adjusted. The marriage must be valid, meaning both parties have a bona fide intent to establish a life together and the marriage is not for the sole purpose of obtaining an immigration benefit.  The parties must be legally free to marry and not married to anyone else in any jurisdiction.  Additionally, the parties must have met in person at least once within the two years before filing any of the above-mentioned forms.  While there may be some exceptions to these rules, they are considered on a case by case basis.

When the petition is granted, the immigrant spouse will receive a green card that has 90-day conditional status.  This conditional status may be removed upon application of the spouses within 90 days.  If the conditional status is not removed, the immigrant spouse could be forced to be removed from the United States.  The immigrant will not be eligible to become a permanent resident until after the immigrant has been married to the citizen for two years unless the immigrant qualifies for a conditional basis.

II.  Affidavit of Support

In addition to filing a Form I-129F, Form I-130, and/or Form I-485, the U.S. citizen must also file Form I-864, titled, Affidavit of Support.  This document states that the U.S. citizen agrees to be financially responsible for the immigrant spouse.

Completing and signing Form I-864 makes the U.S. citizen a sponsor and they must show on the affidavit that the sponsor has enough income and/or assets to maintain immigrant spouse at 125 percent of the Federal Poverty Guidelines. This affidavit is a contract between a sponsor and the U.S. Government. By signing the Affidavit of Support Form, the sponsor agrees to use the sponsor’s resources to support the immigrant spouse as necessary.

The submission of this affidavit may make the sponsored immigrant ineligible for means tested public benefits, because an agency that provides means-tested public benefits will consider the sponsor’s resources.  If the immigrant spouse manages to qualify a receive means-tested benefits, the sponsor may need to repay the cost of those benefits.

III.  Spousal Maintenance

The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse after the dissolution of a marriage. Tex. Fam. Code §§1.003, 8.051, 8.060; Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex. App.—Dallas 2003, no pet.); O’Carolan v. Hopper, 71 S.W.3d 529, 533

To be eligible to receive spousal maintenance, the petitioner must prove that she (1) is a spouse, (2) lacks sufficient property to provide for her minimum reasonable needs, and (3) has met one of the four statutory bases for spousal maintenance:

1. ten-year marriage

2. family violence,

3. disabled spouse, or

4. disabled child

Tex. Fam. Code §8.051; see, e.g., Stafford v. Stafford, No. 12-04-00128-CV (Tex. App.—Tyler 2005, no pet.) (memo op.; 11-30-05) (petitioner met threshold requirements of Tex. Fam. Code §8.051 to request spousal maintenance). (Tex. App.—Austin 2002, no pet.).

IV.  Conclusion

If citizenship is obtained through marriage, the length of the marriage directly affects the immigrant’s path to citizenship and divorce doesn’t instantly extinguish the U.S. citizen’s or sponsor’s financial duty to the immigrant spouse even when the immigrant spouse does not qualify for spousal maintenance under Chapter 8 of the Texas Family Code.

It is important to note that the standard for spousal maintenance is a subjective standard regarding a spouse’s minimum reasonable needs. The Family Code does not define “minimum reasonable needs.” The determination of minimum reasonable needs for a particular person is a fact-specific inquiry decided on a case-by-case basis. Slicker v. Slicker, 464 S.W.3d 850, 860 (Tex. App.—Dallas 2015, no pet.); Diaz v. Diaz, 350 S.W.3d 251, 254 (Tex. App.—San Antonio 2011, pet. denied).  The financial responsibility of a sponsor who executed an Affidavit of Support to sponsor an ex-spouse is related to a means-test.  The results of this test will be applied the same to every set of facts.  Ultimately, this obligation is trigged by poverty guidelines.

The fiancé visa provides both a path to citizenship and post-divorce maintenance.

Tiffany Kamuche is the managing partner at Kamuche Law Firm located in Dallas, Texas.  You can find her contact information at www.kamuchelaw.com.

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