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Modern Family Law Views – Are You “Immigration Ignorant?”

November 6, 2014

Are You “Immigration Ignorant?”

This rhetorical question came up in the course of a recent conversation with a colleague and led to some amount of introspection.  The question may be a bit silly in contrast to the importance of the issue, especially for any professional in the Washington D.C. metropolitan area who provides services or advice to individual or corporate clients.  Sadly, the answer probably is “Yes,” unless the professional has all the following:

  1. A system regularly and habitually to find out at the start of any new matter whether each client and their spouse (and other related persons) are a United States citizen (“USC”), Lawful Permanent Resident (“LPR”), or Non-Resident Alien (“NRA”) – and if the last, whether they are in or out of lawful status.
  2. An immigration attorney available who can answer routine questions, help issue spot, and serve as a referral source for the immigration needs of affected persons; and
  3. A CPA or tax attorney available who knows about the special tax rules that can apply to LPRs and NRAs, and is available to help affected persons with their tax issues.

Our geographic area is populated with people from all countries and nationalities, so even occasionally ignoring the citizenship and immigration status of clients and their family members can lead to disastrous results.  Assumptions can lead to real trouble, as some people may appear perfectly assimilated into the dominant culture and language, yet have dual citizenship with another country, foreign citizenship, or even no citizenship.  Ignorance of immigration status, whether of clients or of their family members, can result in advice that unwittingly but negatively affects rights on issues in fields as diverse as family law, immigration, and tax.

Family law issues that “immigration ignorance” might hide unless consciously investigated include the ability of a parent to relocate with children to another country.  They also can include the ability of a spouse to file for divorce in more than one country, and the possible application of foreign laws to financial issues associated with separation and divorce, including division of assets, alimony, and child support.

Immigration law is too complex – and the consequences too important – for the casual dabbler to do clients any good, at least without the assistance of another professional who works with immigration issues daily.  Immigration law consequences can include loss of ability to remain in or immigrate to the United States, or to sponsor other family members to immigrate.  In addition, immigration status can have consequences for family law proceedings (and vice versa).

And hardly anyone needs encouragement to involve other competent professionals with tax issues – without even getting into the specialized tax rules that can apply to non-U.S. citizens.  These rules can include not just whether the non-U.S. citizen has tax liability on a particular transaction, but can also include the obligation of a related U.S. taxpayer to make tax withholdings – including on house buy-out and on alimony amounts – or themselves suffer personal liability for the amount of the required tax withholdings plus interest and penalties!

Understandably, some professionals still hesitate to ask about citizenship and Immigration status, sometimes out of a healthy desire to avoid any appearance of discrimination.  The reality, though, is that failure to get this critical information hinders the professional’s ability to give good and relevant advice – or worse, results in bad or missing advice.  And no professional wants to hear in a phone call from a client, “You should have told me . . .”  So when it comes to immigration issues, make sure you (or the professional helping you) is “immigration aware” instead of “immigration ignorant.”

(A special “thank you” this month to my partner, Michael Kabik, Esquire, who regularly helps me with immigration issues, and who helped with the inspiration for and some technical immigration law aspects of this article).

© 2014 by Hadrian N. Hatfield

Modern Family Law Views is meant as an information tool to help people going through the separation or divorce process and those working with them.

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Hadrian N. Hatfield