Foreign Spouse : Legal Rights and Immigration Procedures

A foreign spouse entering the United States may do so on an immigrant visa (IR visa for immediate relatives), or may initially enter on a temporary visa and later adjust status. Upon approval of the I-130 petition and adjustment of status, a foreign spouse obtains an Employment Authorization Document that permits lawful work in the United States. The spousal sponsorship pathway typically takes between eighteen months and three years, depending on visa availability and processing times at United States Citizenship and Immigration Services.

If a foreign spouse has been married to a United States citizen or permanent resident for less than two years at the time of adjustment of status, the foreign spouse receives conditional permanent residency rather than immediate permanent residency. During the conditional period, which lasts two years, the foreign spouse and sponsoring spouse must jointly file a Form I-751 Petition to Remove Conditions on Residency within ninety days before the conditional status expires. Failure to file this petition may result in deportation proceedings.

In a divorce involving a foreign spouse, New York courts apply equitable distribution principles to divide marital property fairly between the parties. A foreign spouse may retain permanent residency status even after divorce if the foreign spouse has held a green card for at least two years, or if the marriage lasted at least ten years, subject to certain exceptions. However, if a foreign spouse divorces within two years of obtaining conditional permanent residency, the foreign spouse must demonstrate that the marriage was entered in good faith, or that the foreign spouse was subjected to battery or extreme cruelty to maintain residency status.

A foreign spouse has the right to inherit from the estate of a deceased United States citizen or permanent resident spouse under New York Surrogate's Court Procedure Act. A foreign spouse may also execute a will in New York, establish a trust, and designate beneficiaries. It is advisable for a foreign spouse to consult with an estate planning attorney to ensure that immigration status does not affect inheritance rights and to address any concerns regarding assets held in different countries.

Under the Foreign Account Tax Compliance Act, a foreign spouse who is a United States person (including a lawful permanent resident) must report foreign financial accounts and assets to the Internal Revenue Service. Additionally, a foreign spouse may be required to file Form 8938 (Statement of Specified Foreign Financial Assets) if the value of specified foreign financial assets exceeds certain thresholds. A foreign spouse should consult with a tax professional to determine reporting obligations and to avoid penalties for non-compliance.

New York State requires residents to file state income tax returns on worldwide income. A foreign spouse who establishes residency in New York by obtaining a permanent address, maintaining employment, and demonstrating an intent to remain in the state must file New York State income tax returns. A foreign spouse should also be aware that establishing residency in New York may affect eligibility for certain benefits and may trigger state tax obligations even if the foreign spouse maintains property or income sources in their country of origin.

A foreign spouse may change their name in New York by filing a petition in the county where the foreign spouse resides. After obtaining a court order for name change, the foreign spouse must update their name with United States Citizenship and Immigration Services, the Social Security Administration, and other government agencies. A foreign spouse should also update their name with banks, employers, and other institutions to ensure consistency across all official records and to avoid complications with tax filing and immigration matters.

A foreign spouse who is a lawful permanent resident may travel outside the United States, but must maintain valid travel documents, including a valid green card and a valid passport from their country of origin. A foreign spouse who remains outside the United States for more than one year without obtaining a re-entry permit may be deemed to have abandoned permanent residency. A foreign spouse planning extended travel should consult with an immigration attorney to determine whether a re-entry permit is necessary and to address any concerns regarding maintaining immigration status.