Dear Sophie: What should I know about prenups and getting a green card through marriage?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

I’m a founder of a startup on an E-2 investor visa and just got engaged! My soon-to-be spouse will sponsor me for a green card.

Are there any minimum salary requirements for her to sponsor me? Is there anything I should keep in mind before starting the green card process?

— Betrothed in Belmont

Dear Betrothed,

Congratulations on your engagement and thanks for reaching out!

There are several things to keep in mind before you tie the knot. These important considerations are particularly relevant since you’re a startup founder, currently on an E-2 visa, and if you’ll continue to live in California.

My law partner, Anita Koumriqian, who is an expert in family immigration law, recently interviewed Lydia Hsu and Kara Foster, the co-founders of Foster Hsu, LLP, a California family law firm, on our podcast. They cover the ins and outs of family law and prenups, and what to know before you tie the knot and pursue the green card process.

California is a community property state, which means if your marriage doesn’t work out, all of the assets acquired by you and your spouse during the marriage will be divided up equally unless you have a prenuptial agreement (prenup) in place before you get married. Since you are an E-2 investor and I imagine you have significant assets, it’s beneficial to consider entering into a prenup before you become legally married.

This is especially important for you in pursuing a marriage-based green card because U.S. Citizenship and Immigration Services (USCIS) often looks to see whether couples are commingling funds in a joint bank account when assessing if your marriage is good-faith to approve your green card.

“A prenup may not be right for you,” says Kara, “but at least you should be educated going into a marriage and know what you’re going to be responsible for, what your obligations are going to be, and how California is going to treat your property, assets and income during the marriage. We have a lot of people coming in later for a divorce saying, ‘If I had known this, I would have done everything differently.’”

In addition to California, there are several other community property states in the U.S., including Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

From the immigration side of things, keep in mind that the Affidavit of Support (Form I-864), which is required for a marriage-based green card, will remain in effect even in the event of a divorce — and takes precedence over any spousal support designated in a prenup.

In the Affidavit of Support, the sponsoring spouse and/or individual who is listed in the form must accept financial responsibility for the green card beneficiary. Currently, the minimum required income for the sponsor, assuming a two-person household, is $21,775 (the minimum is higher in Alaska and Hawaii). The minimum income is 125% of the federal poverty guidelines.

A self-employed sponsoring spouse must provide proof of the business, including a copy of the business license, business bank account and tax returns. A sponsoring spouse employed by a company must provide an employment verification letter, recent pay stubs and tax returns. If the sponsoring spouse is unemployed and doesn’t have sufficient assets, such as substantial savings, that spouse will need to find someone over the age of 18 who is either a U.S. citizen or a green card holder — and preferably a family member — to jointly sponsor you.

Couples can also create a postnuptial agreement (postnup) after they get married. Postnups can cover the same ground as a prenup, except for spousal support, which was previously called alimony. 

“One of the things you cannot do in a postnup that you can do in a prenup is limit or waive spousal support,” Lydia says. “Once you’re married, the courts don’t allow you to limit or waive spousal support. There’s just a little more power in a prenup.”

If you decide to go through with a prenup or a postnup, both Lydia and Kara recommend that each prospective spouse or spouse be represented by a separate attorney to keep things clear and ethical moving forward.

One question that Anita often receives from clients filing for a marriage green card is whether prenups and postnups can negatively affect their immigration chances of approval. Prenups and postnups are private agreements; they do not become publicly available unless either spouse files for divorce and proceedings end up in family court. 

Another thing to note for E-2 visa holders seeking adjustment of status in the U.S. (as well as holders of A Visas and G Visas): Your green card application will need to include a separate step where you waive any diplomatic immunities, rights, privileges or exemptions that you may hold based on your underlying immigration status.

As always, I recommend working with an experienced family law attorney for drafting prenups and postnups and an experienced immigration attorney, who can help file for a marriage green card, prepare for and accompany you to a green card interview, and determine immigration options if separation or divorce is unavoidable.

USCIS continues to face delays in processing all immigration cases due to COVID-19 restrictions and an increase in filings. Take a look at a previous Dear Sophie column for more tips for applying for a marriage green card and a podcast discussion I had with Anita on what to do and not do when filing for a family green card and during the mandatory interview with an immigration officer.

All the best to you for a long and happy marriage!

Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!