International Law - 2/13 - boyerlawfirmblog.com

International Child Custody

International child custody cases can vary significantly in subject matter; however, the importance of attaining child custody is paramount. Usually, international child custody cases involve:

(1) A parent who does not trust another country’s court system for a custody case;

(2) A parent who wants to move abroad with the child after divorce or at the time of separation; OR

(3) A parent who has already moved abroad with the child without a custody hearing

In general, two important areas of law that ensure the state or country where the child has been living decide custody questions are The Hague Convention and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty. Many countries including the U.S. and the United Kingdom signed the Hague Convention. The Convention provides for immediate return of children who are taken from their country of habitual residence in violation of custody rights. The convention applies to children under the age of 16 who were wrongfully removed or retained from/in another country. Wrongful removal does not mean whether the removal or retention was immoral or illegal. Wrongful removal is most similar to a breach of custody rights. In general, custody rights can include visitation and other rights relating to the care of the child.

Uniform Child Custody Jurisdiction and Enforcement Act

Child custody orders are modifiable orders, meaning that a court can change a child custody order depending on the circumstances. In these instances, parents or guardians can file an action under the UCCJEA to enforce or modify a foreign custody/access order. The UCCJEA amends the original UCCJA (Uniform Child Custody Jurisdiction Act). The Act gives jurisdiction over the action to the home state of the child. This means that a parent can file the action in the court where the child is living.

In the event that a foreign country has already issued a custody order, the UCCJEA can “override” the order if jurisdiction is more proper in the United States. This happens when a child is living in a U.S. state. Furthermore, The UCCJEA applies to children under the age of 18. When there is already a custody order, the country that issued it keeps jurisdiction over modification of the order; however, this can change when a new state has jurisdiction over the order under the UCCJA.

Contact an experienced attorney if you have a question regarding international child custody. Please contact us with any questions or concerns you may have, and we will be happy to assist you.

Will the U.S. recognize a divorce done abroad?

The number of international divorces is increasing worldwide. Typically, couples facing international divorce are: U.S. nationals where one or both spouses lives abroad, one spouse lives in the United States while the other lives abroad, or both spouses are foreign nationals living in the United States. In the all three situations, a petitioner likely can file for a divorce proceeding in the United States; however, what happens if the petitioner for divorce files the proceeding abroad? Will the United States recognize the legitimacy of a foreign divorce?

The short answer: possibly.

Doctrine of Comity

In international law, the doctrine of comity allows nations to mutually recognize the laws, judgments, and acts of foreign countries. Although this definition is over simplified, it provides a good starting point in determining whether judgments made by foreign countries are enforceable in the United States. The doctrine of comity, however, does not require foreign nations to recognize such judgments. The decision to uphold a foreign government’s judgment is up to the discretion of the nation disputing the claim.

For example, if A, a Belgian citizen, divorced B, a U.S. citizen, in Belgium and B only receives a judgment for one-third of the estate, B may attempt to file for divorce in the United States; however, the U.S. may recognize the legitimacy of the judgment made in Belgium, thus preventing B from petitioning for divorce in the U.S. The doctrine of comity is the doctrine that would allow the U.S. to uphold the ruling in Belgium.

In the Supreme Court case Hilton v. Guyot, the court proficiently states the doctrine of comity. In this case, Guyot, a French citizen, sued Hilton, a U.S. citizen, in French Court. The French court entered a judgment in favor of Guyot. Guyot sought to enforce the French judgment and brought the claim to the United States. “The doctrine of comity,” the court states, “is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation.” Hilton v. Guyot, 159 U.S. 113, 164 (1895). Similarly, the nation should use the doctrine of comity with “regard both to international duty and convenience, and to the rights of its own citizens.” Id.

Will the United States recognize the legitimacy of a foreign divorce?

Under the doctrine of comity, the United States can recognize foreign divorces and judgments entered by foreign courts. Because of the complexity of this doctrine and the complexity of international divorce law in general, we strongly advise consulting an experienced attorney. Please contact us to discuss any questions about international divorce. We look forward to assisting you.

International Divorce Litigation

The international workforce in today’s world is progressively more mobile,thus there has been an increase in international marriages. There are a variety of issues surrounding international divorce and a major one includes where to file.

Filing for Divorce in the U.S.

If you live in the United States and your spouse lives abroad, you may be able to file a divorce petition in your domiciled state. “Domicile”means the place of residence that you treat as your permanent home. Petitioners file for a petition for dissolution of marriage in state courts in the state they are domiciled in. Similarly, the petitioner can file for divorce ex parte, which means they can file without their spouse being present; however, in order to obtain orders regarding marital property division or spousal support, the court must have personal jurisdiction over both parties.

Obtaining Jurisdiction

Jurisdiction refers to the official power to make legal decisions and judgments. Similarly, personal jurisdiction refers to the power of a court over the parties in the case. Upon filing for a petition for dissolution of marriage, the petitioner allows the court to have personal jurisdiction over the petitioner. In order to obtain personal jurisdiction over the respondent (e.g. the spouse of the petitioner), the court looks to the respondent’s domicile, state statutes, and/or whether the petitioner served the respondent within the domicile.

Service of Process

Usually, the petitioner or agent of the petitioner must personally serve the petition. This means that the petitioner likely cannot mail or fax the petition. This can be especially problematic if the petitioner’s spouse lives abroad. There are alternatives to personally serving a respondent such as, obtaining a waiver, serving by publication, and hiring a foreign process server.

Filing Abroad

If you and your spouse live outside of the United States, you can file for a divorce petition in your host country.

Potential problems with divorce overseas

Although filing for divorce overseas may speed up the process or allow a more favorable distribution of property, the U.S. may or may not recognize the overseas decision. The state generally decides whether to recognize the dissolution of marriage. Usually, states consider the residency of spouses, public policy and other relevant circumstances.

In in the United States, international divorce cases are often complex and difficult. We highly recommend consulting an experienced attorney regarding international divorce questions. If you have questions about the topic above or other legal matters, please contact us. We will be happy to assist you.

EB-5 Program for Immigrant Investors

What is the EB-5 Program?

The EB-5 Visa is the Immigrant Investor Program created by Congress in 1990. The purpose of EB-5 is to increase job creation and to increase capital investment by immigrant visitors. In return for investing in projects in the United States, an immigrant investor can gain lawful permanent residence for themselves and for their immediate family.

There are two basic requirements in order to be eligible to apply for EB-5. The first requirement is that the investor must make a capital investment of either $500,000 or $1,000,000 in a new business enterprise in the U.S. The second requirement is that the new business must create or preserve 10 full-time jobs for U.S. workers within two years of the investor’s admission to the United States.

The basic timeline to become a permanent resident through EB-5 is as follows:

1. Getting EB-5 Documents

In this step, investors must certify that they are an accredited investor or qualified purchaser. This step begins the investment process. Once approved, investors will receive EB-5 program documents.

2. Wiring Funds into an Escrow Account

In this step, investors wire their funds into a third party account also known as an escrow account. A third party on behalf of the transacting parties holds the escrow account. The escrow account holds the funds until completion of the transaction.

3. File Form I-526

The investor seeking citizenship files the I-526 to demonstrate they invested the required amount of capital or are currently in the process of investing.

4. Immigration Interview

After approval of the I-526 form, investors will interview with the U.S. embassy in their current country. If investors pass the interview, the United State will issue a green card.

5. File I-829

After living in the U.S. for 21 months, investors can file an I-829 demonstrating completion of the EB-5 requirements.

6. Permanent Resident

Once approved, the U.S. will remove investors’ green card, granting permanent residency to the investor.

If you are interested in the Immigrant Investor program, please contact us for a free consultation.

5 Benefits of Becoming a U.S. Citizen

A Closer Look: The E2 Investor Visa

An E2 investor visa is just one of the many ways to legally live and work in the United States. An an E2 treaty visa requires individuals to either invest in an existing U.S. business or create a start-up.

If you are coming to America to create a business, you will first need to apply for a B1 Visa. The application for this visa includes a letter of explanation, various documents, and an interview with the consulate in your home country.

The application process for the actual E-2 Investor visa is long and complex. Applicants must be citizens of a country that has a treaty of commerce with the U.S. and have a clear immigration business plan. It is important to explain how the evidence you submitted to the United States Citizenship and Immigration Services (USCIS) in your application proves your eligibility.

The clearer your eligibility, the faster the USCIS can review and process your application. Thus, a qualified immigration attorney is crucial.

Family of E2 Treaty Investors and Employees

An E-2 treaty investor’s family may qualify for a separate visa. The spouses of E-2 treaty investors may apply to jobs and start working as soon as the E-2 application is submitted. Additionally, if a child is unmarried and under 21 years old, they may be included on a permanent resident application.

After getting an E2 Investor Visa, the real work begins. Treaty investors are granted an inital stay of two years and can request extentions. There are no limits on how many times you can renew this visa. Creating a profitable business in the United States requires significant investment, commitment and of course, a good business lawyer.

Boyer Law Firm assists clients with Investment, Family Petition, Employment and Temporary visas, as well as applying for citizenship. To learn more or contact us, please visit our website.