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#Immigration And Marriage: What Happens If You Marry Or Divorce A Foreign Spouse?

Hollywood movies have made it conventional wisdom that one way to speed through the red tape of immigration is to marry. This is true. Often, the marriage is one that is genuinely based on love and affection. Other times, not so much.

Federal officials say the revelation by Oregon first lady Cylvia Hayes that she married an Ethiopian man for $5,000 so he could get his green card has shined a light on the most common way to cheat the U.S. immigration system.

And potentially one of the most dangerous.

About 1 million foreign nationals gain legal status each year, and fully one-fourth of those are through marriage to an American citizen or someone who already is a lawful permanent resident, known as a green card holder.

Of those, some estimate 5% to 15% may be fraudulent, said Todd Siegel, a section chief with Homeland Security Investigations, which is part of Immigration and Customs Enforcement.

That would translate to as many as tens of thousands of fraudulent marriages each year — most of which are never discovered.

While cases like this may hurt or embarrass the U.S. what about the person in the marriage – usually the sponsor – who may have been duped into a marriage of convenience? And what rules are there to protect both parties should a legitimate marriage hit the rocks?

Do You Take Uncle Sam To Be Your…

Although former Canadian Prime Minister Pierre Trudeau once said that the government does not belong in the bedroom, when it comes to marriages involving foreign spouses, the government might as well be a third wheel on the honeymoon and well into the life of the relationship.

Wise sponsors, particularly those with significant wealth, should insist that foreign partners sign prenuptial agreements before they get married. Such agreements shield the estate of the American partner from the potential of losing a lot after a split. But even these agreements cannot completely absolve a U.S. sponsor of liability for the foreign spouse’s post-breakup claims when it comes to immigration-related matters.

Marriage and Green Cards

In the case of marriages that are less than two years old, the foreign spouse is granted conditional permanent residence. On the basis of that conditional green card, the foreign spouse comes to live with the sponsor in America. At the two-year mark of the relationship, immigration officials review the marriage to see if the couple is still together. Those spouses that satisfy officials of the bona fides of their relationship get approved for permanent status. Those who fail are required to leave the country.

It sounds straightforward enough, but often it can get complicated. One of the requirements the U.S. imposes on a resident who seeks to sponsor a foreign spouse is an affidavit of support. Filing such a document imposes a 10-year liability on the sponsor for certain types of government-based financial assistance that the foreign spouse – and the spouse’s children – may access in the future.

Let that sink in.

The theory goes that the sponsor should be held responsible for the costs of a foreign national who, say, goes on welfare after the break-up of a marriage. In that situation, the U.S. government may sue the sponsor to recover the costs involved.

In one case I had not long ago, the government was pursuing my client as a sponsor for $90,000 in social services benefits that were incurred by the sponsored parties several years ago. The sponsor argued he should not be held liable because he was disabled by illness and could therefore not support himself, never mind others. The government did not buy that excuse. They wanted their money.

I Owe How Much?

Often, the realization that a U.S. sponsor is on the hook for a foreign spouse’s government debts is a rude awakening. In such moments, the sponsors invariably look for ways to relieve themselves of these liabilities, such as arranging for the removal of the now divorced foreign spouse. If the couple is still on speaking terms, and the foreign spouse is unhappy in the U.S. the spouse may be persuaded to leave the U.S. But this is rare.

A more popular, if sometimes more mischievous, method of addressing the problem is a so-called “poison pen letter,” where the sponsor writes to U.S. authorities outlining all the failings of the foreigner and calls on the government to remove that spouse. On occasion, such letters accomplish their goal and the foreign spouse ends up deported. More often, however, the foreign spouse gains permission to remain in the United States despite the marriage breakdown by proving extreme hardship or that the marriage was entered into in good faith or that they or the children of the marriage were subject to extreme cruelty.

As might be expected, the situation gets especially complicated for a disillusioned sponsor when there are children involved. For one thing, chances for the foreign spouse to show that the marriage was entered into in good faith dramatically increase. A showing of extreme hardship is also made easier.

Still, a foreign spouse must prove certain details to get approval to remain in the United States. First, the foreign spouse must prove that the marriage was a legal marriage in the place where the wedding took place and that it was not terminated. Second, they must show that the marriage was not entered into for the purpose of procuring U.S. residence (re-run The Proposal starring Sandra Bulloch or Greencard starring Gerard Depardieu for an entertaining and fairly accurate portrayal of this scam). Finally, there must be a showing that no fee, apart form an attorney fee, was paid – such as the $5000 to Cylvia Hayes above. One or more of these failings can sabotage the removal of the temporary condition on the green card.

Don’t Forget To Ask For The Removal Of Temporary Residence

A huge mistake is when a foreign spouse neglects to file the application to remove the condition regarding temporary residence. From the moment the temporary green card expires, that foreign spouse begins accruing unlawful presence. Where such unlawful presence continues for a period in excess of six months, the foreign spouse becomes subject to a three-year bar to re-entry if he or she is removed or leaves the U.S. If the foreign spouse accrues more than one year of unlawful presence, then that spouse becomes subject to a ten-year bar to re-entry. Trouble is, a spouse isn’t made aware of these penalties until they travel outside the U.S. and then try to re-enter. A big surprise awaits at the airport.

Assuming the foreign spouse applies successfully for the removal of temporary status, the green card becomes a permanent green card. In that instance, the sponsor’s financial responsibility often survives for a period of ten years or until the foreign spouse gains U.S. citizenship.

That last part is key. In marriage-based cases, the foreign spouse is eligible to apply for U.S. citizenship after three years of residence. It would be wise to encourage such a foreign spouse to obtain U.S. citizenship as soon as possible, especially if the concern is about future financial responsibility.

Not that your marriage won’t be happily ever after, of course.

The preceding is a general overview and is not direct legal advice for your situation. Always consult a lawyer before making decisions in matters of law.

Andy J. Semotiuk is a U.S. and Canadian immigration lawyer with offices in Toronto and New York. He is a published author and a former UN correspondent. Learn more at My Work Visa .