Asians May Face
As Hawaii’s largest family law firm, we
handle lots of cases involving Asian clients. In fact, we have even formed
a special Asian Languages Practice Group within our office which consists
of Asian-American attorneys and paralegals. We often wind up handling
cases involving an Asian spouse marrying a U.S. citizen. Then, a divorce
occurs. They may have children and/or own property together. One spouse
may need alimony or might even face deportation following a divorce.
These are diverse and difficult cases and a
plethora of variables often exist. The attorney’s at Coates & Frey
are well-equipped to handle scenarios involving Asians married to U.S.
citizens. Although our firm does not specialize in immigration law, we
often work closely with our clients’ immigration attorneys in order to
ensure that their divorce goals coincide with any immigration issues they
This article is intended to provide a very
basic overview of immigration issues that a divorcing Asian might
encounter. Readers are strongly advised to consult with an immigration
attorney about immigration matters.
Family-based immigrant visas are available.
These focus on the relationships between family members and contain
certain preferences. The preference categories are: First preference,
unmarried sons and daughters of citizens; second preference, spouses,
children and unmarried sons and daughters of lawful permanent residents;
third preference, married sons and daughters of citizens; fourth
preference, brothers and sisters of citizens.
Employment-based immigrant visas are also
available. These focus on “priority workers,” which has essentially
been interpreted as “aliens with extraordinary ability, outstanding
professors and researchers, multinational executives and managers or
members of the professions holding advanced degrees.” “Skilled
workers, professionals and other workers” are also included. “Skilled
workers” are those with skilled labor requiring at least two years’
training or experience. “Professionals” are persons with bachelors’
degrees who are members of the “professions.” “Other workers” are
those performing unskilled labor for which qualified workers are not
available in the U.S. For further
information on visas, this Web site may be helpful: http://travel.state.gov/visa_bulletin.html.
Nonimmigrant visas are also available. The
most common of these include B-1/B-2 visitors for business or pleasure;
F-1 students; H-1B “specialty occupation workers”; exchange students,
scholars, trainees, and teachers; K-1 fiancé visas; L-1 managers and
executives; and M-1 students at vocational or non-academic institutions.
Removal or deportation proceedings can
occur. Grounds for removability include being inadmissible at time of
entry; violations of nonimmigrant status; alien smuggling; marriage fraud
and criminal offenses. Criminal offenses include crimes involving moral
turpitude; multiple criminal convictions; aggravated felonies; controlled
substance violations and certain firearm offenses. They also include
several criminal offense categories such as domestic violence, stalking,
violation of protective orders and child abuse.
Once an Asian immigrant or their spouse
files for divorce, he may be in danger of eventual deportation. A
particular concern may be that the divorce could preclude the ability to
turn a provisional or temporary Green Card into the next level of
permanent resident alien status. Asian spouses who are involved in a
divorce should immediately retain both a competent family law attorney and
an immigration law attorney in order to make sure that “all the angles
are covered” as completely as possible. For example, Asian wives and
mothers may fall under the protection of the Violence Against Women Act,
which may permit them to stay in the U.S. if they can show they were
victims of domestic abuse.
Child-custody issues often arise if an Asian
spouse cannot stay in the U.S. and instead wants to relocate back to Asia.
The legal standard for an award of custody by a family court judge is the
“best interest of the child” test. Under the law, no maternal or
paternal preference exists, but the “primary caretaker parent” often
has an advantage.
In the scenario wherein the Asian spouse
wants to (or has to) return to Asia but does not want to leave his or her
children behind, then a contested relocation custody case may occur. These
contested relocation custody cases are very complicated and