Spousal Immigration in General
Federal immigration law provides for a U.S. citizen to sponsor the immigration of their foreign spouse. The married couple must apply for a family-based immigrant visa allowing a spouse from a foreign country to enter the United States and obtain Lawful Permanent Resident (LPR) status—also known as a “green card” holder.
Among the various immigration forms that are required to obtain a visa for an immigrant spouse is an Affidavit of Support (Form I-864). By signing and submitting an Affidavit of Support, the U.S. citizen spouse enters into a contractual agreement with the United States acknowledging that they have the means to financially support their spouse at a minimum level of 125% of the federal poverty threshold and accepting legal responsibility for their financial support until their spouse becomes a U.S. citizen or earns credit for 40 hours of work.
Importantly, getting a divorce does not relieve the citizen spouse of their obligation to provide the required amount of spousal support to their spouse. Furthermore, the affiant is responsible for reimbursing government agencies for the cost of any “means-tested public benefits” that the immigrant spouse receives.
- PAGE: Premarital & Postmarital Agreements
- BLOG: Do I Need a Prenuptial Agreement?
- BLOG: 4 Myths About Prenuptial Agreements
Invalid Marriages for Immigration Purposes
Spouses who have been married for less than two (2) years will receive what is known as “conditional permanent resident” status. This means that the couple must prove that they did not get married for the purpose of avoiding federal immigration laws.
If USCIS concludes that a couple entered into the marriage to evade federal immigration laws, their marriage will be deemed invalid for immigration purposes. As a result, the spouse seeking to immigrant to the United States will be denied entry or removed from the United States. The citizen spouse may also be subject to civil or criminal penalties.
Potential Concerns About Prenuptial Agreements
A prenuptial agreement is a contract into which prospective newlyweds enter, governing their rights and responsibilities as married spouses concerning matters such as spousal support and the distribution of marital assets at the end of their marriage, whether due to divorce or death. The provisions of a prenuptial agreement go into effect when the couple gets married.
Although there are few legal requirements to form a valid premarital agreement, the judicial enforcement of its provisions may be questionable depending on the circumstances of each case. Generally, a prenuptial agreement is not enforceable if it was not the product of mutual voluntary assent to its terms. As a result, circumstances that suggest that party did not understand the contract, or would not have reasonably agreed to its terms if they had a meaningful choice, call the enforceability of the agreement into question.
Spouses with conditional permanent resident status should be careful about the potential effect of a prenuptial agreement. Evidence indicating that a party did not understand the terms of a contract may endanger the enforcement prospects of its provisions, especially if English is not their first language.
Additionally, terms that reduce the immigrant spouse’s property rights may suggest that the couple had a deal to have the citizen spouse sponsor the foreign spouse’s immigration into the U.S.
Importantly, provisions purporting to govern the couple’s rights and responsibilities regarding spousal support are effectively superseded by the terms of an Affidavit of Support. This is because a prenuptial agreement is a contract between the spouses, whereas an Affidavit of Support is a contract between the citizen spouse and the U.S. government.
Need Professional Legal Advice? Family Law San Diego Is Here to Help
If you and your spouse have immigration prospects and are considering forming a prenuptial agreement, it is highly recommended that you consult an experienced attorney about your legal options. At Family Law San Diego, our legal team has experience handling various legal matters arising under California family law, including the appropriateness of entering into a prenuptial agreement.