H1B visa and divorce in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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H-1B Visas, H-4 Visas and Divorce In Illinois

H1B visa and divorce in Illinois

There are a lot of ways to get entry to the United States. One way to immigrate to the United States is by securing an H-1B visa. The recipient of the H-1B visa can then also apply for their spouse and children to join them in the United States via H-4 visas.

Unfortunately, the transition to an American lifestyle can be very demanding on a relationship that began overseas. Sometimes, this means an H-1B visa holder and an H-4 visa holder will need to file for divorce while they’re in the United States.

If either party has been living in Illinois for more than 90 days, they can file for divorce in Illinois.

What Is An H-1B Visa?

The federal statutes outline who is an American and who is an immigrant.

“The term “alien” means any person not a citizen or national of the United States.” 8 U.S. Code § 1101(a)(15)

“The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens— 8 U.S. Code § 1101(a)(15)

The federal statute then lays out who can come into United States of America as an immigrant. The Immigration and Naturalization Act, section 101(a)(15)(H) has a part 1 and a part B. That’s why these immigrant’s visas are referred to as H-1B.

“[A]n alien (i)… (b)…who is coming temporarily to the United States to perform services…in a specialty occupation described in section 1184(i)(1) of this title” 8 U.S. Code § 1101(a)(15)(H)

“the term “specialty occupation” means an occupation that requires—

(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S. Code § 1184(i)(1)

H-1B visa holders can be highly paid specialists in their field.

H-1B visa holders can only stay in the United States for 6 years as an H-1B visa holder (although there are exceptions).

“In the case of a nonimmigrant described in section 1101(a)(15)(H)(i)(b) of this title, the period of authorized admission as such a nonimmigrant may not exceed 6 years.” 8 U.S. Code § 1184(i)(1)

Even though H-1B visa holders are supposed to be in the United States temporarily, they are allowed to apply for permanent residency.

“The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.” 8 CFR §214.2(h)(16)(i)

What Is An H-4 Visa?

H-4 visas are not established by the federal statute. Instead, they are established by federal regulation. Some rules are so detailed that Congress abdicates writing them as law and just leaves the process to the agencies.

“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.” 5 U.S. Code § 301

The Code of Federal Regulations creates an H-4 visa for the spouses and children of H-1B visa holders.

“The spouse and children of an H nonimmigrant, if they are accompanying or following to join such H nonimmigrant in the United States, may be admitted, if otherwise admissible, as H-4 nonimmigrants for the same period of admission or extension as the principal spouse or parent.” 8 CFR 214.2(h)(10)

H-1B visa holders are in the United States to work. H-4 visa holders are not allowed to work under most circumstances.

“H-4 nonimmigrant status does not confer eligibility for employment authorization incident to status.” 8 CFR 214.2(h)(10)

Getting Divorced In Illinois When You Have an H-1B or H-4 visa.

If there’s an H-4 visa, that means someone got married before they came to the United States.

Foreign marriages are considered valid in Illinois. There’s no need to provide a marriage certificate from your home country. An Illinois divorce court will simply believe the allegations in the Petition For Dissolution Of Marriage.

“The complaint or petition for dissolution of marriage…shall be verified and shall minimally set forth:

The date of the marriage and the place at which it was registered” 750 ILCS 5/403(a)

The only jurisdictional requirement to getting a divorce in Illinois is that one of the parties must have lived in Illinois 90 days before the filing of the Petition for Dissolution of Marriage.

“The court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State…and the residence…had been maintained for 90 days next preceding the commencement of the action” 750 ILCS 401(a)

That’s it. H-1B or H-4 visa holders do not need anything beyond the 90 days and an allegation that they were married.

Special Considerations While Getting Divorced in Illinois While Holding a H-1B or H4 Visa

Marital assets will be divided between two foreigners with little regard to the assets’ location. The court has jurisdiction over the parties to force the sale or distribution of whatever asset may exist in the parties’ home country.

Maintenance (formerly known as alimony) and child support will be awarded without regard to the parties’ respective visas. Most H-4 visa holders are not allowed to legally work in the United States.

When one party doesn’t work, the other party will ask the court to impute income to that party for the purposes of calculating child support and maintenance. “If present income is uncertain, a court may impute income to the payor” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009)

The Illinois Supreme Court in In re Marriage of Gosney394 Ill.App.3d 1073 (2009) laid out the rule for when you can and when you cannot impute income for the purposes of child support and maintenance in Illinois.

1) where the obligor voluntarily becomes unemployed;

2) where the obligor is trying to avoid having to pay support; and

3) where the obligor hasn’t accepted an offer or opportunity for employment.

If one these three factors do not exist in an Illinois divorce, income cannot be imputed.

Clearly, it would be hard to argue that an H-4 visa holder has abandoned their job in their former country. Likewise, the inability to earn money is not an attempt to avoid paying support. Furthermore, an H-4 visa holder cannot accept a job offer.

Furthermore, at the moment of the divorce an H-4 visa holder begins accruing an unlawful presence (but they still might have time on their H-4 visa). The post-divorce H-4 visa holder is supposed to return to their home country where they can, presumably, obtain employment and use that income for the purposes of determining child support and maintenance.

The children may or may not return to the parties’ home country with the H-4 visa holder. The court will make a decision on who will have custody of the children and where the children will live based on the best interests of the children. In my experience, Illinois divorce courts are not overtly biased towards keeping a child in the United States.

How An H-4 Visa Holder Can Stay In The United States After An Illinois Divorce

An H-4 visa exists only through the marriage to an H-1B visa holder. When the marriage ceases to exist via a divorce, the H-4 visa may still be valid but an unlawful presence begins to accrue.

If there was any kind of violence or “extreme cruelty” in the marriage, that can allow the H-4 visa holder to apply for permission to work while they are processing their divorce and, presumably, after the divorce is finalized.

In the case of an alien spouse admitted under [an H-4 visa]…the Secretary of Homeland Security may authorize the alien spouse to engage in employment in the United States and provide the spouse with an “employment authorized” endorsement or other appropriate work permit if the alien spouse demonstrates that during the marriage the alien spouse or a child of the alien spouse has been battered or has been the subject of extreme cruelty perpetrated by the spouse of the alien spouse.”8 U.S. Code § 1105a(a)

Furthermore, domestic violence also allows an abused spouse who has a visa, an expired visa or no visa at all to apply for a U-Visa.

“[An]alien who files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that-

(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);

(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);

(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and

(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States” 8 U.S. Code (U.S.C.) 1101(a)(15)(U)

The children who also hold H-4 visas can apply for U-Visas through the parent.

“[I]f accompanying, or following to join, the alien described in clause (i)-

(II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien” 8 U.S. Code (U.S.C.) 1101(a)(15)(U)

There must be a crime, however. Not merely the accusation of a crime. The victim must cooperate with the police in order to secure conviction of the perpetrator.

“[T]he criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting (as defined in section 1351 of title 18); or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes;”

8 U.S. Code (U.S.C.) 1101(a)(15)(U)

It is no small feat to get a U-Visa. My clients that need a U-Visa get referred to an immigration lawyer.

Even if an H-4 visa holder has their visa expire post-divorce, that doesn’t mean they will automatically be deported. The Federal government which governs immigration is not keeping track of who is getting divorced in State courts. In reality, the real incentive to leave is that the former H-4 visa holder would face penalties for getting any future visas for having overstayed their current visa.

If you have an H-1B visa or an H-4 visa and you are considering a divorce in Illinois, you need to speak with an experienced Chicago divorce attorney.

Myself and my staff speak Spanish, French, Tamil, Hindi and Chinese. By necessity, we have extensive experience in the nexus between Immigration and Divorce law. So, feel free to contact us to schedule a free, no-obligation consultation.

We are not lawyers who focus on immigration and this article is not immigration advice. Contact us to learn more.