Joseph Gentile sat down with divorce journalist Ilyssa Panitz of Authority Magazine to discuss “Immigration Divorce” — the intersection of immigration and the process of gaining US residency through marriage, sponsorship and the financial issues that come with the Immigration Form I-864, Affidavit of Support.
The full article can be viewed here, as well as below.
Attorney Joseph Gentile Explains What An Immigration Divorce Is
An interview with Ilyssa Panitz
Immigration Attorney Joseph Gentile says, if you are a U.S. citizen and you want to sponsor and marry someone from another country, it is best you understand all of the obligations that go along with cementing this union.
America is a melting pot. What makes the United States so wonderful, it is full of different cultures, stories and people because not everyone was born here. In fact, millions of people have migrated to America from other countries and when they relocated, they brought their art, foods, recipes, music, plus, we became educated about other backgrounds and traditions. We also got to learn new languages, wear diverse styles of clothing/accessories and honor a variety of religions. According to the 2020 U.S. Census, as of April 1, 2020, the current population in our country is at 331,449,281. Pew Research found more than 40-million people living in The United States were born in another country. Those numbers account for about one-fifth of the world’s migrants and it is the United States that has more immigrants than any other country in the world. Having said that, some of those people came to America after meeting someone, falling in love and tying the knot. But what happens if the marriage collapses, and a couple seeks what would be defined as an immigration divorce? Joseph Gentile is a founding member of the firm, Sarraf Gentile LLP in New York. Joseph counsel’s individuals with delayed immigration applications and other immigration-related matters such as divorce.
Ilyssa Panitz: What is an immigration divorce?
Joseph Gentile: It’s a divorce just like any other. However, when one of the parties is not a US citizen there are additional considerations. For instance, if the immigrant in the marriage is relying on the marriage for legal status, they need to factor that into their divorce strategy. In that instance, there are also additional financial issues to consider. Spouses that sponsor their significant other for green cards pledge to financially support them. The immigrant spouse can enforce that obligation.
Ilyssa Panitz: If an individual who is an immigrant is going through a divorce with a US Citizen, what kind of attorney do they need to retain?
Joseph Gentile: Like everyone else, the immigrant should retain a good matrimonial lawyer in the state where they live. In addition, they will frequently benefit from consulting with an immigration lawyer that is familiar with enforcing the support obligation under the Form I-864 affidavit of support and with the legal status implications of divorce. The I-864 is the “contract” a sponsor signs when they sponsor a spouse for a green card. Unlike the divorce lawyer, the immigration lawyer can be based anywhere. My firm, for example, is based in New York, but our clients are nationwide. Divorce law requires state specific expertise. Immigration law is federal and therefore uniform throughout the country, so having a local immigration lawyer is not necessary. Incidentally, very few immigration or family lawyers are well versed in I-864 enforcement actions.
Ilyssa Panitz: You mentioned, there are non-profit organizations that can assist with the immigration matters/consequences of a divorce?
Joseph Gentile: There are nonprofits in every major metropolitan area of the US that assist immigrants with immigration law issues if the immigrant is low income. Probably the largest of them is Catholic Charities. We work with them, and they typically do excellent work.
Ilyssa Panitz: If the person has a Green Card and they are not a US Citizen and they are going through a divorce, could their immigration status be impacted and if so, how?
Joseph Gentile: Their immigration status could be impacted in several ways. First, when you get a green card through marriage, that green card is conditional for the first couple of years you have it. To get the conditions removed and make that green card permanent, you need to be proved that the marriage is bona fide. That means the marriage is real and was not entered into simply to get a green card. If you divorce during that conditional period of time, that could raise suspicion from the government and invite extra scrutiny of the marriage. This can be dealt with by carefully providing detailed evidence that the marriage was real when entered into even though it failed. The immigrant would also simply need to and applying for certain waivers related to the marriage. The issue of divorce could also come up when the immigrant seeks to naturalize or become a US citizen. At that stage, the government can review your entire immigration history and may look to probe the bona fides of your marriage if there was a divorce. Many immigrants understandably freak out in the event their marriage to a US citizen falls apart. In abusive marriages, the US Citizen frequently threatens the immigrant’s legal status as a way to control them. There are effective options for green card holders to stay in the US regardless of whether their spouse wants that or not. This is a solve-able problem. In a nutshell, divorce won’t necessarily prevent you from keeping your green card or becoming a citizen, but it could invite more scrutiny.
Ilyssa Panitz: What if the marriage produced children and the kids were born in the United States? Those kids are US Citizens but one parent is not. How is custody & visitation determined?
Joseph Gentile: If the immigrant has a permanent green card, it shouldn’t matter. If they have a conditional green card, the existence of US citizen children could give an additional argument as to why the conditions should be removed on the green card and the immigrant should be allowed to stay permanently. To deport (or remove) the immigrant (who has legal status) would cause extreme hardship, especially if they have children. Family unity, at least aspirational, is a goal of US immigration policy. Every divorce has a financial component.
Ilyssa Panitz: Every divorce has a financial component. If someone has a Green Card through marriage, (we will call them Person-A) is the other spouse/citizen (Person-B) still financially responsible for them during the divorce?
Joseph Gentile: Yes, not only is the spouse/citizen (Person-B) potentially financially responsible for the green card holder (Person-A) during the divorce, they are also financially responsible for them indefinitely. This is an important point. When you sponsor an immigrant to come to the US, you financially vouch for them. You agree that if that person is making less than 125% of the poverty line (Roughly $1,400 per month for a household of one in 2022), you are responsible for making up that difference. That obligation survives divorce and only ends in certain very specific spelled out circumstances. The most common of which are: the immigrant becomes a citizen, gets credited with 40-quarters worth of work by Social Security, the immigrant abandons their green card and moves back to their home country, or death. Assuming, hypothetically, the immigrant can’t work for some reason, the support obligation can last for life. From the perspective of the sponsor, they need to consider this obligation VERY carefully before sponsoring a spouse. From the immigrant perspective, this obligation can be a financial lifeline in the event they are not able to support themselves. Especially since green card holders do not have access to many of the means- tested public benefits that citizens can access in an emergency. This is partly because their sponsor’s income is deemed to them even if they don’t have access to that income.
Ilyssa Panitz: What if Person-A decides to re-marry? Is Person-B still financially accountable for Person-A and why?
Joseph Gentile: Sponsor person B is arguably still responsible as long as the new spouse earns no money as well. I think cases like this would be very rare though.
Ilyssa Panitz: How is the amount of Spousal/Child Support determined in a divorce like this?
Joseph Gentile: The financial support that is gotten through immigration sponsorship is calculated apart from state law spousal/child support. Amounts paid in spousal support would likely be deducted from the immigration support owed, but child support would not be. The immigration support owed is 125% of the poverty line, adjusted by household size.
Ilyssa Panitz: Does the length of the marriage matter on how decisions are made?
Joseph Gentile: The length of the marriage doesn’t matter.
Ilyssa Panitz: Why do immigrants get an extra avenue of financial support in a divorce that US Citizens are not entitled to?
Joseph Gentile: Clearly, the I-864 Affidavit of Support benefits immigrant green card holders by giving them an additional route to obtain financial support from a moneyed spouse. I think it is morally correct that if you bring someone to a new country to live with you, that you don’t turn around and financially abandon them. However, an additional important reason for this is to protect the US taxpayer.
Ilyssa Panitz: How so?
Joseph Gentile: The Affidavit of Support takes the risk of supporting an immigrant who falls into poverty away from the taxpayers and puts it on the immigrant’s sponsor of the immigrant. This risk-shifting mechanism is to benefit the taxpaying public and should give pause to people that sponsor a spouse or relative to come to the US in order to simply get for the purpose of accessing government benefits. Ultimately, the US citizen is getting the better deal here.
Ilyssa Panitz: Why?
Joseph Gentile: As much as people question public benefits, I’d rather rely on the government for a safety net than on a sponsor spouse. Citizens have much more security in that sense. I think it also benefits the immigration system as a whole. By and large, Americans welcome and value immigrants as they should. Giving the public some assurance that legal immigration will not impose a cost on taxpayers goes a long way to keeping that support robust. The country is divided on how to handle undocumented immigration, but support for legal immigration is pretty broad and bipartisan. These cases do not create windfalls. The amount of money the green card holder can get is relatively modest and only meant to provide the bare minimum of support or some breathing room to become self-supporting. Frequently, these cases are brought on behalf of people that have endured abuse or have no place else to turn.
Ilyssa Panitz: For people who don’t understand the mechanics of an immigration divorce, again you say, it is the “sponsor” aka, the ex-spouse who is on the hook and not the Government or the taxpayer?
Joseph Gentile: If you are going to ask the Government to let someone permanently settle in the US based on your relationship with them, I think it is reasonable to be asked to vouch for them and assume financial responsibility, as a first resort, if they are or would be living in poverty.