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Challenges to Marrying an Immigrant for Those Facing Retirement
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Posted On: July 1, 2013

Must you choose between preserving your legacy and assets for your children over securing your immigrant spouse’s green card?  

Keeping Your Assets Private
The Affidavit of Support requires that if you are sponsoring your spouse for a green card, you must be willing to reimburse the federal government for any public assistance benefits made to your spouse 10 years after s/he obtains their green card, even if you get divorced.  Usually, this doesn’t scare one away since these payments would not be anticipated because the spouse chosen is unlikely to fall on public assistance considering their own assets and/or career and education level.  On the I-864, Affidavit of support, you do not have to disclose your assets if you made enough income according to the guidelines CIS follows for your household size.  This is one way to keep your assets private. But what about the green card interview? 


Keeping Your Assets & Income Separate 
CIS is not going to believe that the marriage is real (bona fide) as opposed to legal, if you don’t commingle your assets or share your finances with your spouse. CIS is stuck in the version of the 1950s couple who combine bank accounts, credit cards, have life insurance and health insurance for each other, and have access to each other’s money. In CIS’s view, it tends to show a real marriage if you are willing to give your spouse access to your money.  The modern marriage where all assets are separate and everything is divided equally between separate accounts without access from the other spouse is a much harder sell. Obtaining a greencard for a spouse creates a special problem for those in or approaching retirement age who are perhaps on their second or third marriage and have already placed their assets, including bank accounts, into a trust for the benefit of their children or other living heirs (a process most likely done before even meeting the immigrant).


Making Changes to Existing Trust & Will
It can be a nightmare taking assets out of the trust and commingling assets, changing the trust and the will, not to mention alerting the and alleviating the concerns of the heirs to any changes the US citizen spouse is now making. There is always the possibility that the heirs will not approve of the new marriage or will suspect the immigrant of marrying the US citizen spouse just to get a green card and “get their hands” on the money.  The US citizen faces the potential of their heirs challenging any asset move from the trust or any addition of the immigrant as a beneficiary to the trust even though the trust is revocable by the US citizen during his or her lifetime. The common way to challenge the change is to claim that the US citizen has been pressured by undue influence or lacks the mental capacity to make wise financial decision. If there is a power of attorney already signed for fiduciary decisions that grants a child or children the right to step in for their US citizen parent (which is quite common to be completed at the same time the trust is drafted), this potential becomes much more realistic. Unfortunately, I have seen this happen in practice. An adult child who is not involved in the life of the parent at all takes over the bank account based on an old fiduciary power of attorney when s/he did not agree to their parent’s addition of the immigrant as a beneficiary, even though their was no established legal incapacity. 


This scenario also places the immigrant in a defensive and difficult position, trying to convince the other spouse that they don’t want any of their money, are only in the marriage for love, but also must have some joint commingling of their lives to satisfy USCIS that it’s a real marriage or else green card issuance will not happen.  It’s important to talk to your potential heirs about this change, introduce them to your spouse if you believe your changes would be contested, to try to stave off such a scenario.


As for immigration, I have used revocable living trusts for elderly or retired couples in cases where it was a nightmare to change everything and where other assets that are not in the trust such as life insurance and health insurance and can be jointly held are in existence and the couple can still show that they pay bills together and each contributes a substantial amount towards those regular, recurring monthly expenses. 

As for any marriage case, timing of when such accounts are opened, how active they are, and how long they remain active and open are all factors CIS will consider.  It’s not impossible to obtain a green card for your spouse without uprooting your entire financial and investment plan already in place but you must have some very convincing reasons to keep the status quo for CIS to be convinced.

Whichever immigration attorney you work with, be sure to inform him or her of the existence of a trust and what is covered within it and what you can and cannot due to mingle your assets and financial lives. Having a probate attorney who is willing to work with your immigration lawyer is even better. 
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
Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com

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