My fiance is still a dependent of her ex-husband

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Conner Zeus

New Member
I met my fiance about a year ago. She and her husband got divorced about 2 or 3 years ago due to irreconcilable differences. Since they have kids together, the husband thought it would be best to have them still all be his dependents including my fiance.

I am a US citizen and we plan on getting married soon. Would her being a dependent of her ex-husband prevent me for applying to pettition her for a green card? Would there be any problems if we apply? like, the legality of having her as a dependent even though they where divorced?

Any help would be appreciated.
 
Read the instructions on form 1040 which lays out the criteria for which one qualifies as a dependent.That is an issue for IRS to decide, NOT USCIS.

However I hope she was not filing as married with her ex when they were in fact divorced! You guys will need some explaining to do if that is the case since it would appear she is trying to defraud the IRS! From the criteria below, your fiancee clearly does not meet the qualifying relative criteria. However its an IRS matter, not a USCIS matter though a thorough and nosy USCIS officer can give you trouble over it and ask that she/they refile their taxes.

Good luck.

To be claimed as a qualifying relative, the person must meet all of the following criteria:

Not a qualifying child - The dependent cannot be a qualifying child of another taxpayer.

Gross Income – The dependent earns less than the personal exemption amount during the year. For 2009 and 2010, this means the dependent earns less than $3,650.

Total Support – You provide more than half of the dependent's total support during the year.

Relationship – You are related to the dependent in certain ways.

To meet the relationship test, the dependent must either

be related to the taxpayer is one of the following ways, or
live with the taxpayer for an entire year, and the relationship must not violate local laws.

Qualifying Relationships with no residency requirement
The dependent will meet the relationship test for being claimed as a qualifying relative if the dependent is related to the taxpayer in one of the following ways:

son or daughter, grandson or granddaughter, great grandson or great granddaughter, stepson or stepdaughter, or adopted child,
brother or sister,
half-brother or half-sister,
step-brother or step-sister,
mother or father, grandparent, great-grandparent,
stepmother or stepfather,
nephew or niece,
aunt or uncle,
son-in-law, daughter-in-law, brother-in-law, sister-in-law, father-in-law, or mother-in-law, or
foster child who was placed in your custody by court order or by an authorized government agency.

Joint Return – If the dependent is married, the dependent cannot file a joint return with his or her spouse.

Citizenship – The dependent must be a citizen or resident alien of the United States, Canada, or Mexico.


Conner Zeus said:
I met my fiance about a year ago. She and her husband got divorced about 2 or 3 years ago due to irreconcilable differences. Since they have kids together, the husband thought it would be best to have them still all be his dependents including my fiance.

I am a US citizen and we plan on getting married soon. Would her being a dependent of her ex-husband prevent me for applying to pettition her for a green card? Would there be any problems if we apply? like, the legality of having her as a dependent even though they where divorced?

Any help would be appreciated.
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Her dependent arrangement with her ex won't hurt your petition for her green card, but marrying her will change the calculations and obligations with the IRS and child support and/or alimony.

But there are other immigration aspects to worry about ...
Is she inside or outside the US? If inside, legally or illegally? Are the kids US citizens?
 
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Sorry, I should have explained what I meant by dependent. Her ex-husband i believe has a working visa, and my fiance and the kids are dependent under the work visa allowing her to stay here, i guess "legally".

We never really talked about how the husband files for income tax. I guess we should start there. As far as the kids, their all i believe under F1 status right now.
 
So she was on H-4? She is now out of status because her H-4 was dependent on being married to her husband. She is still eligible to adjust status when you marry her however just be aware you guys will be scrutinized a little bit more than those with a clean case.
 
Her immigration status based on her marriage ended with the marriage. Has she been committing immigration fraud since then by fraudulently claiming to still be married? OR has the status lapsed and she is out of status officially?

See a lawyer.
 
Conner Zeus said:
Sorry, I should have explained what I meant by dependent. Her ex-husband i believe has a working visa, and my fiance and the kids are dependent under the work visa allowing her to stay here, i guess "legally".
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If she divorced him, she's not here legally any more, because divorce terminates the dependent nonimmigrant status.

We never really talked about how the husband files for income tax. I guess we should start there. As far as the kids, their all i believe under F1 status right now.
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Are they in college? If not, they're probably not in F1 status, because it doesn't make sense for them to be in F1 status for high school or below, given that they can attend school with H4 (or L2 or whatever dependent visa they have) without the various restrictions of the F1.

Are her kids under 18? Do you plan to have them live in the US with you? Does the ex-husband support that?
 
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She needs an attorney. While her fraud will be forgiven by marriage to a USC, the validity of your relationship should/would be evaluated. You are opening a real can of worms!
 
Following a divorce, she no longer qualified for H4 status in the US and should have either obtained her own legal status (own H1B sponsorship) or left the US. If she obtained an I-94 after that date on the basis of her ex's status, that was definitely fraud. Ex should have notified proper agencies of the fact as well.

It is expected that consequences of divorce be considered by guests workers and their dependents. There are significant problems with international child custody.
 
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