How Federal Immigration Law Affects State Divorce Law

A recent case decided by the Ninth Circuit examined the relationship between immigration law and divorce law. The Ninth Circuit began its review of a Nevada case by reviewing the Court’s ruling in a case named Park v. Barr that the Court had just ruled on a few months earlier. The prior case involved a woman who was in the United States even though she had overstayed her visa.
The woman, Woul Park, married Byung Gug Choi in Korea in 1988. Both spouses were Korean. Ms. Park entered American in 2003 on a B-2 tourist visa. She overstayed her visa. Ms. Park has lived in California since 2003. In 2009, the couple divorced under Koran law. After the divorce, Ms. Park married James Young Park – who is a US citizen. Ms. Park then filed and was granted legal permanent residency (LPR) based on the second marriage.
Ms. Park applied to become a naturalized citizen in 2014. That petition was denied because the USCIS (US Citizenship and Immigration Services) determined that her divorce from Choi wasn’t valid under California law – which, in turn, invalidated her second marriage. USCIS based its finding that the divorce was invalid on California Family Code § 2091, which bars California from recognizing a foreign divorce if both spouses are domiciliaries of California.
Since the invalid divorce invalidated the second marriage, Ms. Park’s LPR status was also invalid, according to USCIS. Since her LPR status was invalid, she couldn’t seek to become a naturalized citizen.
The Ninth Circuit disagreed with the USCIS ruling. The Ninth Circuit held that she couldn’t establish a California domiciliary because her B-2 nonimmigrant status had lapsed. Thus, her divorce and second marriage were valid, she was a legal LPR, and she could seek naturalization.
In short, federal immigration law preempted California law – resulting in a valid second marriage.
Ninth Circuit ruling in the Nevada case.
Alas, Ms. Park’s case directly affects the rights of the woman in the Nevada case.
Several months after the Park ruling, a Nevada court used similar reasoning in the case of a noncitizen lawfully in the US on a student spouse visa. (Senjab v. Alhulaibi (Nev. Dist. Ct. Clark Cnty. June 17, 2020)). In that case, a couple from Syria married in Saudi Arabia on February 17, 2018. They bore a child, Ryan, who was born on February 16, 2019.
The husband obtained an F-1 (student) visa. He entered the US to study at UNLV (University of Nevada Las Vegas) in 2018. He claimed that his wife applied for an F-2 visa (for spouses and dependents of people who hold an F-1 visa) in August 2018 and that his wife and child were granted visas late in 2019. The wife and child came to Las Vegas on January 13, 2020. A month later, the wife filed a request for a court-ordered Protective Order. The Order was granted through February 14, 2021. The wife then filed for divorce on March 24, 2020.
To obtain a divorce in Nevada, one of the spouses must be a “bona fide resident’ of Nevada for at least six weeks prior to the filing of the divorce. Residency requires physical presence in Nevada and intent. Foreign residents can file for divorce in Nevada if they establish this presence and intent to make Nevada their domicile.
The ruling in Park v. Barr held that federal law preempts state law. The Park ruling means that nonimmigrants who enter the US on a visa (as occurred in the Nevada Case) cannot establish the necessary subjective intent, and thus, Nevada cannot grant the divorce. This preemption, according to the Ninth Circuit, continues even if the visa holder overstays her welcome.
In short, just as Ms. Park couldn’t establish a lawful domicile in California (because her lawful status had lapsed) – the husband and wife couldn’t verify their domicile in Nevada. Federal law requires that nonimmigrants who enter the US through an F-1 or F-2 vias must maintain a residency in the country they came from (citizenship country) with no intent to abandon it. The wife was permitted entry into the US – on this express condition not to renounce her foreign citizenship. Thus neither the husband nor the wife could claim Nevada as their domicile – based on federal law.
Confused about the relationship between immigration law and divorce law? Our lawyers can help.
It’s difficult enough pursuing a divorce without other complications. Likewise, it’s challenging to seek immigration approval without complications. There are times when a spouse seeking immigration approval may be going through a divorce – or may have been divorced. At Lyttle Law Firm, our Austin and San Marcos lawyers are both experienced family lawyers and immigration lawyers. We represent spouses and people in need of immigration advice in Travis, Hays, Comal, Williamson, Bell, Caldwell, Burnett, Llano, and Guadalupe Counties. Call us at 512.215.5225 or complete our online form to schedule an appointment.

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