Immigration Considerations for Prenups

Nov 2, 2022 | marriage, Prenuptial Agreements

Romantic comedies can teach us some important life lessons. For example, The Proposal, a 2009 breakout film, explores the challenges a U.S. citizen faces when trying to marry a non-citizen. Although Sandra Bullock and Ryan Reynolds made it look easy, getting a prenup with someone who isn’t born in the United States can be challenging. Continue reading to learn more about what hurdles you will face with a non-citizen fiancé.

No matter your fiancé’s country, you still need a prenup. We got you! At HelloPrenup, our goal is to ensure that every fiancé can protect their assets before they say, “I do.” We offer easy-to-complete state-specific forms that help you and your partner complete a legally valid prenuptial agreement. The forms are also printable, so if you choose to have an attorney review your document, that’s easy too! If you’re curious, learn more about us here

Marrying a Non-Citizen

Love is wonderful. You could fall in love at any moment. Isn’t it exciting to think that you could meet your soulmate while backpacking through Europe, during the summer you spent in the Caribbean, or on a trip to Japan? We all love the romance of it all, but we must also be practical. If you are a United States citizen and your spouse is not, and you plan to live in the states, consider the following before you sign a prenup and tie the knot.

If your fiancé is not a U.S. citizen, the immigration system will become a part of your life. If your spouse wants to work and live in the states permanently, there are some hoops that you must jump through. For example, ever heard of a “green card?” Well, that doesn’t just appear on your lap; you must put some effort into obtaining it. There are also some obligations you face as the spouse with U.S. citizenship, i.e., the affidavit of support, but more on that later. Keep reading to learn more.

How Can My Spouse Get Lawful Status in the United States?

You want the best for your future spouse. You want them to be taken care of and for them to be able to pursue their dreams in the United States. Also, they’re leaving their home, and you two are building a new life. If your spouse wants to enjoy some of the freedoms afforded by living in the U.S., they need legal status to live and work in the U.S. There are a few ways to accomplish legal residence in the US.

Fiancé Visa

Ever heard of the TV show 90-day fiancé? Well, its namesake is the actual legal process to marry a non-U.S. citizen! The “fiancé visa” allows your fiancé to travel to the states to have the official wedding ceremony, but with one caveat: the marriage must take place within 90 days of entering the United States. After obtaining a fiancé visa and holding your marriage ceremony within 90 days, your fiancé can apply for permanent residence (a.k.a. green card).

Spouse Visa

If you are already married to your spouse, you can obtain two different visas to bring your foreign beau over to the U.S. The first one is an immigrant visa for a U.S. citizen’s spouse (IR1 or CR1), which is filed using an I-130 form. The second one is a nonimmigrant visa for a spouse (K3). You can read more about family visas here

Lawful Permanent Resident (a.k.a. green card) and Eventual Citizenship

Because your spouse is marrying a United States citizen, they have the option to apply for Lawful Permanent Resident (LPR) status. You may know LPR better as a green card, but these terms are interchangeable. Your spouse can live and work permanently in the United States with their LPR status. There are several requirements necessary before a lawful permanent resident may become a U.S. citizen. For starters, they must have continuously lived in the U.S. and been married to you (the U.S. citizen) for three years before filing for citizenship. They must be over the age of 18 and demonstrate an understanding of English. There are more requirements which can be found here.

Before the citizenship stage, your spouse first needs your help to get Lawful Permanent Resident status. You will be asked to complete an Affidavit of Support before your spouse can obtain LPR status, which includes some financial requirements. To learn more about an Affidavit of Support, continue reading.

Affidavit of Support

An Affidavit of Support is a big deal. It is known as Form I-864, and once you complete and sign it, you have entered a contract with the United States federal government. Yes, that’s right, a contract with the government. This affidavit is used for most family-based and some employment-based immigrants to show they have sufficient means of support when staying in the United States and will not need to rely on the U.S. government for support (think: food stamps). 

When you sign an Affidavit of Support, you agree to accept financial responsibility for your spouse. You are essentially telling the government, “Hey, don’t worry. I will make sure that my spouse’s needs are taken care of. They won’t need government assistance.” That is a large burden you are taking on, and there are serious implications from entering into this agreement.

So, one thing you should know is that none of the obligations from an Affidavit of Support go away after a divorce. Yes, you are in this for the long haul. In fact, if your ex-spouse receives government assistance like food stamps, housing allowances, or Medicaid, the government may ask you to repay those benefits. Luckily, you aren’t responsible for your ex-spouse’s needs forever. After they have worked in the United States for ten years of qualified work or become a naturalized citizen, you’re off the hook for supporting them. Still, that’s a long time.

What Happens to My Prenup?

You should pay close attention to your prenup if your fiancé is not a citizen. Your new spouse will have LPR status, so your prenup may be limited in some ways. For example, even if your spouse agrees to waive spousal support in your prenup, the federal government may still come after you to repay any public benefits your spouse uses as a result (remember that affidavit of support we talked about?).

Fear not; there is a silver lining. You can include a provision in your prenup that says your spouse agrees that you are not responsible for supporting them after your duties under the Affidavit of Support end. Remember, until your spouse either becomes a citizen or has worked in the U.S. for ten years, you will be responsible for supporting them, even if you get divorced!

While you may have hurdles to overcome to avoid paying support for your ex-spouse, you can still include many other provisions in your prenup. You can still protect your assets if you earned money before you got married, for example. It is also possible for you and your spouse to come to an agreement on how your property will be divided if you decide to split. 

What About Prenups and Language Barriers?

Because your loved one was not born in the U.S., you have the unique challenge of overcoming a language barrier while you draft a prenup. Why is this important? Well, overcoming the language barrier issue is crucial because you and your spouse must understand the terms of the prenup. You run the risk of having the prenup invalidated in the future if either spouse doesn’t understand it.

To protect your interests, it is a good idea to have an interpreter read the agreement to your non-native English-speaking fiancé. To take it a step further, it may be a good idea to have an attorney review the agreement and also have the translator there to explain the legalese in their native language.

How Can HelloPrenup Help?

Getting married without a prenup can result in a more complicated and stressful relationship, because a prenup provides clarity in a marriage. With HelloPrenup, you and your fiancé can create a collaborative prenup online without ever leaving your couch. You and your fiancé will each fill out a questionnaire to determine what should be included in your prenup, resolve any differences in your answers, complete a financial disclosure, and print out a final agreement to sign and notarize. And the best news yet, your prenup will cost you a fraction of the traditional methods.

At HelloPrenup, our mission is to help engaged couples prepare for marriage by creating a valid prenuptial agreement. Hiring an attorney, meeting them at their office, and paying for their service can all be overwhelming. With HelloPrenup, you and your fiancé can use one of our state-specific forms to create a prenup from the comfort of your home. 

Imagine being able to sit down with your beloved at the kitchen table and talk over your agreement with love and compassion outside the sterile environment of an attorney’s office. HelloPrenup empowers everyday people to take charge of their own lives and get prepared for the legal implications of marriage comfortably and empathetically.

Congratulations on your engagement, and good luck on your new journey! Read more about how it works here. You should be as prepared as possible for every major life change, including marriage. Check us out. We look forward to helping you, fiancé!

 

All content provided on this blog is for informational purposes only. HelloPrenup, Inc. (“HelloPrenup”) makes no representations as to the accuracy or completeness of any information on this site. HelloPrenup will not be liable for any errors or omissions in this information nor for the availability of this information. These terms and conditions of use are subject to change at any time and without notice. HelloPrenup provides a platform for contract related self-help. The information provided by HelloPrenup along with the content on our website related to legal matters (“Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither HelloPrenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.

 

Julia FunkeJulia Funke is a managing attorney at International Legal and Business Services Group LLP, a full-service immigration law firm serving clients across the U.S. She earned her J.D. from the University of Illinois Chicago School of Law. When she’s not helping clients, Julia teaches immigration law at a local public college. To connect with Julia for your immigration-related needs, please reach out to [email protected]

0 Comments

Submit a Comment

Your email address will not be published.

Recent Posts

Estate Plans Vs. Prenups: How Both Can Benefit You

[This article was written by Patrick Hicks, Head of Legal at Trust & Will, the premier online estate planning and settlement platform] Getting married is a significant life event that can trigger couples to want to get their affairs in order. Both prenups and...

Should a woman sign a prenup?

Let's cut to the chase: yes, women should definitely consider signing a prenup that is valid, fair, and maybe even attempts to close the gender wealth gap. A woman, or any person, should not sign a prenup that feels unfair or one-sided. The ideal prenup for a woman...

Estate Planning 101

[This article was written by Patrick Hicks, Head of Legal at at Trust & Will, the premier online estate planning and settlement platform] Estate planning is a crucial process that involves preparing legal documents that address your wishes should you pass away or...

Who should get a prenup?

The short answer: everyone should consider getting a prenup. It's not just for the wealthy anymore. A prenup can help anyone. Some people might say it's bad luck, but would you consider getting car insurance bad luck? I mean, it's the same concept. You get car...

What is the Biggest Fear in Marriage?

You probably feel a rollercoaster whirlwind of emotions if you're newly engaged or married. You may be overwhelmingly thrilled, shocked that it's finally happening, and even pinching yourself to make sure it's real. Besides all these euphoric emotions, feeling some...

Ready to join the thousands of couples completing their prenup?