Immigration Issues in Divorce

Statue of Liberty

Anyone who has lived in and around Orlando for the last ten years knows that our community is becoming more and more culturally diverse. In the last five years, I have had clients from many regions of the globe.  Because of this, it is natural to see more and more divorce cases that involve immigration issues. The first question I ask when I realize I have a foreign born client is whether there will be any issues with their immigration status during or after a divorce. Sometimes they know the answer, sometimes not.

Immigration Status Obtained via Treaty Trader (E-1) or a Treaty Investor (E-2) Visa

E-1 and E-2 Visa’s are granted to people who have made substantial financial investments in the United States. I have represented couples that have come to the Orlando area from other countries and have invested large sums of money to purchase central Florida businesses. Many do this in order to meet U.S. immigration requirements such as for being a Treaty Trader or Treaty Investor immigrant through an E-1 or E-2 Visa. The general requirements for these Visa’s are that you engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country (usually the home country of the Visa applicant). There is an additional requirement that you develop and direct operations of an enterprise in which you have invested a substantial amount of capital (read more at: ).

Flag at Ellis IslandIn the case of a divorce in which both are joint owners of the business, there are multiple issues that can develop. Other times, just one party is an immigrant (the other a U.S. citizen), other times they are both immigrants both with unique and different immigration situations and needs.

Because the business is tied to immigration status, it is important to deal with the business properly during the divorce process. If the business is one that can be realistically divided, then we must be concerned that the investment and income requirement from immigration are still being met by each person once the parties have divorced and the business has been divided.

The other concern is that if the divorcing couple cannot come to some kind of agreement on how to distribute the business they may be forced to let a judge decide. If one or both of them is here on a temporary E Visa tied to that business and the judge awards the business to one party, the other may be forced to return to their country of origin immediately upon divorce.

Besides immigration issues, there are a lot of practical matters that need to be sorted out when a divorcing couple owns a business. For example, are there any specialized skills that are required to run the business, what roles have each played at the business in the past, at what stage is the business it its lifecycle (ie, a new business, growing or declining business), does the business require more investment, will there be staffing problems or will staff be loyal to only one owner, can a single owner afford to take the financial risks associated with owning the business, how will your suppliers and customers view and react to the transition in the business, etc.

Immigration Status Obtained Through Marriage to a U.S. Citizen.

The most common case circumstances that I see in divorce cases is where one of the parties obtained their immigration status by marrying a United States citizen. If this is the case, there are a number of immigration forms that will need to be completed to ensure that the couple can both live in America after the divorce. Typically the U.S. Citizen spouse will have to complete the Petition for Alien Relative (Form I-130). This will include an affidavit to be completed by the citizen spouse confirming they can financially support the foreign spouse.

Successfully completing the application form can ensure that the foreign spouse receives a green card allowing them to live and work in the United States. There are additional requirements as to term of marriage and verification of validity of marriage before the foreign spouse will be able to remain in the United States if a divorce occurs.

Divorce Advice To Non-Citizens

My best advice to all of my foreign born clients where we identify concern over immigration status is to consult with an experienced immigration attorney early on in your divorce case. I have had plenty of cases where I have worked jointly with an immigration attorney to assure that my client’s ability to remain in the United States is not threatened by a pending divorce.