Thursday, January 05, 2012

The Prenuptial Agreement's Effect on a Marriage Green Card Case

A prenuptial agreement may be the deciding factor for a spouse who is hesitant about being involved with the immigration process in deciding to go through with the marriage.  There’s no guarantee that a prenuptial agreement will actually hold up later down the line in state family court as this varies with each case depending on the facts involved, given the inherently often coercive nature of the terms or the timing. For immigration purposes, though, the content as opposed to the enforceability of the agreement, is often the key issue for CIS when reviewing a marriage-based green card case.  Nothing in the statute requires a couple to volunteer the existence of a prenuptial agreement but if questioned about it by CIS officer at a green card interview, its existence must be disclosed or else the immigrant could face a misrepresentation bar to obtaining a green card and both the petitioner and immigrant could face civil and criminal charges and financial penalties for marriage fraud.
Why would a couple want to enter into a prenuptial agreement?   

  • Many modern couples do so to protect assets that existed before their marriage, especially if this is a second or third marriage and they want to be able to leave those assets to a son or daughter.  

  • Many couples also use prenuptial agreements so both parties feel that the marriage is being entered into for love and not financial gain and all the cards are on the table from the beginning.  
However, the very existence of a marital agreement may back-fire on the marriage-based immigration case.  
In every marriage-based immigration case, CIS is concerned with marriage fraud and will want proof that the couple married for love, not to evade immigration law.  Very much trapped in the mindset of the 1950s model of what a marriage looks like on paper, CIS officers routinely ask for proof of commingled assets including jointly held and actively used bank accounts, CDs, and stocks, housing held in joint tenancy, joint car loans and mortgages, and joint health, life, and car insurance. The modern couple that keeps their financial lives primarily separate due to retirement age, family trusts, or other needs, have a much tougher case to make.

Marital and prenuptial agreements may also muck up the waters with potentially compromising provisions to the immigrant that could appear as if there is a financial arrangement in exchange for the U.S. citizen’s compliance with the immigration process (i.e., waiver of alimony or child support in exchange for cooperation in signing the Affidavit of Support or cooperating in the joint filing to remove the condition on a conditional green card or non-interference or contact with CIS if the immigrant wants to remove the condition on their own or needs copies of financial documentation in the future for purposes of documenting the bona fides of the relationship).

When the relationship starts to deteriorate, marital and prenuptial agreements have been used by the petitioning U.S. citizen spouses as proof of the immigrant’s intent to marry only for a green card (permanent residency status) after the immigrant has signed the agreement in an effort by the US citizen spouse to maintain control throughout the immigration process and especially, the finances.  For this reason and due to the fact that these agreements are naturally suspect by immigration, they must be carefully drafted. Both parties should always consult a family lawyer and the immigrant should consult an immigration lawyer in addition before signing any kind of prenuptial agreement.
Get Your Free Guide! Immigration Attorneys & You: How to Choose Between the Right One and Those You Should Run From by Attorney Heather L. Poole

9 comments:

Anonymous said...

Can a female us citizen marry an immigrant who is a female?

Atty Heather said...

Unfortunately, because of the federal Defense of Marriage Act, federal law (immigration is federal) does not recognize same-sex marraiges. You cannot sponsor a same-sex partner spouse for a green card at this time.

There may be a potential B-2 (visitor visa) extension possibility for same-sex partners if the partner or spouse is here in the US on another type of nonimmigrant visa such as a H-1B (work visa). CBP has the authority to grant initial B-2 period of stay and CIS may grant extensions of the B-2 to the same time period as the H-1B is granted for in some circumstances.

Anonymous said...

Thank you.

Attorney Nelisse said...

Thanks for a thoughtful statement about prenuptial agreements and marriage green cards; these are points that my clients need to think about.

brazilian women for marriage said...

But different states are already accepted the same sex marriage, so it be?

Atty Heather said...

No federal immigration benefits such as a green card are available to same sex partners due to DOMA, even if the local state recognizes gay marriage. State laws are not recognized if a Federal law exists on the same subject that contradicts the state law.

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Anonymous said...

I got married on Nov 21, 2012. I am now in the process of filing for my green card but my husband wants to sign a postnuptual agreement before he starts the papers. will signing a post nuptual affect me getting my green card?

Atty Heather said...

Re: Postnuptial agreements

Postnuptial agreements are also known as marital agreements, they happen after the couple gets married. Sometimes, immigrants sign these to obtain the cooperation a US citizen or LPR spouse who does not seem "motivated" to file immigration paperwork for the other spouse. Signing one can also put the other spouse's mind at ease that the immigrant has married them for love, not for immigration purposes (to get a green card). However, postnuptial agreements can also be used against an immigrant just as prenuptial agreements (those that happen prior to marriage) can be. The same considerations apply. There are considerations that CIS is going to understand - if this is a second marriage and there are young children from the first marriage, it would be reasonable for the USC spouse to want to leave their assets to their young children instead of primarily to their spouse. However, the same considerations with all spouse-based immigrant visa cases apply - the more you commingle your assets and financials, the more likely CIS is going to believe it is a real, bona fide relationship and marriage. If there is no financial risk to the US citizen or the immigrant spouse, then CIS is not going to be as convinced.

Always consult a licensed, experienced immigration attorney before you sign anything like this and if you have already signed such an agreement, pass it by an immigration attorney to review to identify any issues that could come up at your green card interview or conditional green card waiver interview if your relationship later falls apart.