Child support hurdle

Dear Mrs Walker-Huntington:

I am presently studying in the United States (US). I have being studying here for more than four years.

I met and fell in love with a young man. We are planning to get married. However, my fiancé has a child from a previous relationship when he was in college. He had fallen ill for about three years and was unable to work to pay his child support. As a result, he accrued a high balance. He is, however, very supportive of his child and tries to make his monthly payments.

He has been a permanent resident for over 22 years and was not interested in becoming a US citizen, so he did not apply. He has started to fill out his application for US citizenship in light of our plans to get married.

I would like to know if the child-support issue will be a problem during his filing process. Will it be a problem for him to sponsor me after we get married?

Thanks.

- D.B.

Dear D.B.:

You did not indicate how much child support arrearage your fiancé owes and whether there is a court case involving the child support.

A person who is obligated to pay child support pursuant to a court order, or through involvement with the Child Enforcement Agency in their state, must be current in their child-support payments in order to qualify for US citizenship.

Different rules

Child support is an individual state issue, and each of the 50 states has different rules as to how they ensure that children are financially taken care of by their non-custodial parent. Generally, however, the incomes of both parents are considered and the child support is calculated based on the state-mandated guidelines. If you have a court order for child support and you become unemployed, ill or otherwise unable to pay the support, you are obligated to file for a modification of the child support, or an abatement of the child support to stop the payment. If you do not alert the court of your inability to pay, or the change in your income, the amount you were previously ordered to pay will continue to increase.

While a person's child-support obligations stops when a child reaches 18 years of age, marries or otherwise becomes emancipated, the arrearage that accrued while the child was under 18 does not go away.

Failure to pay your court-ordered child-support obligations can lead to severe legal consequences including loss of your driver's licence, forfeiture of income-tax refunds or any gambling winnings such as the lottery; loss of your US passport and imprisonment for contempt of court.

In this situation where your fiancé is about to file an application for US citizenship, he must show that he is a person of good moral character. Included in this requirement, a person must show that they are meeting their child-support obligations - if there are any. If he is, in fact, in compliance with his child support obligations, even if there is an arrearage, he should still be able to obtain his US citizenship. The arrearage has to be acknowledged and included in the total amount of child support due in the government's records. If the amount due is significant, he should retain an immigration lawyer, who also practises family law to assist him in his application.

As a permanent resident, (green card holder) your fiancé can file for you after you are married for your green card. However, he cannot file to change your status in the US from a student or visitor to that of a permanent resident. Only a US-citizen spouse can file to change the status of anyone. As a green-card holder filing for a spouse, the alien spouse must go to the US Embassy in their home country for the green-card interview. This means, in your case, since your fiancé may have difficulty obtaining US citizenship, you should not overstay your visa. Be sure to keep your non-immigrant visa status current so you do not accrue any unlawful presence in the US. Unlawful presence in the US can lead to you being barred for three to 10 years.

Dahlia A. Walker-Huntington, Esq is a Jamaican-American attorney who practises in Florida in the areas of immigration, family, corporate and personal-injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com

Child-support hurdle