Advice for Tech Workers: Navigating Immigration and Marriage

This is another installment of “Dear Sophie,” a column dedicated to answering immigration questions relevant to those working in the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of sharing knowledge to empower individuals globally. She welcomes questions from those in people operations, founders, and job seekers in Silicon Valley for consideration in future columns.

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Question: Green Card Sponsorship and Prenuptial Agreements

Dear Sophie:

I am the founder of a startup and currently hold an E-2 investor visa. I recently became engaged! My future spouse intends to sponsor me for a green card.

Are there specific minimum income requirements for my spouse to qualify as a sponsor? What considerations should I address before initiating the green card application process?

— Betrothed in Belmont

Answer: Important Considerations for Founders

Dear Betrothed,

Congratulations on your engagement, and thank you for your inquiry!

Several factors warrant careful consideration before your marriage. These are particularly crucial given your status as a startup founder on an E-2 visa, and your residence in California.

Anita Koumriqian, a partner at my firm specializing in family immigration, recently interviewed Lydia Hsu and Kara Foster, the co-founders of Foster Hsu, LLP, a California family law firm, on our podcast. They discussed the intricacies of family law, prenuptial agreements, and essential preparations before pursuing a green card.

California operates under community property laws. This means that assets acquired during your marriage will be divided equally in the event of divorce, unless a prenuptial agreement (prenup) is in place.

Given your status as an E-2 investor and likely substantial assets, exploring a prenup before marriage is advisable.

Impact on Green Card Applications

This is especially relevant when pursuing a marriage-based green card. U.S. Citizenship and Immigration Services (USCIS) often examines whether couples are commingling funds in joint accounts to assess the legitimacy of the marriage.

“A prenup isn’t necessarily for everyone,” Kara explains, “but it’s vital to be informed about your responsibilities, obligations, and how California treats property, assets, and income during marriage. Many people regret not having one later during a divorce.”

Besides California, other community property states include Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

Affidavit of Support

From an immigration perspective, remember that the Affidavit of Support (Form I-864) remains valid even after a divorce and supersedes any spousal support outlined in a prenup.

The sponsoring spouse or individual listed on the form assumes financial responsibility for the green card beneficiary.

Currently, the minimum income requirement for a sponsor, assuming a two-person household, is $21,775 (higher in Alaska and Hawaii). This figure represents 125% of the federal poverty guidelines.

A self-employed sponsor must provide proof of their business, including a business license, bank account, and tax returns. Employed sponsors need an employment verification letter, pay stubs, and tax returns. If the sponsor is unemployed and lacks sufficient assets, a co-sponsor – a U.S. citizen or green card holder over 18, preferably a family member – may be required.

Postnuptial Agreements

Couples can also establish a postnuptial agreement (postnup) after marriage. Postnups address similar issues as prenups, except for spousal support (formerly known as alimony).

“Unlike a prenup, a postnup cannot limit or waive spousal support,” Lydia notes. “Courts don’t allow this once you’re married. A prenup offers greater flexibility.”

For both prenups and postnups, Lydia and Kara recommend that each spouse be represented by independent legal counsel to ensure clarity and ethical practice.

Impact on Immigration

Prenups and postnups are private agreements and do not become public unless divorce proceedings occur. They do not directly affect the approval of a marriage-based green card.

For E-2 visa holders (and those with A and G visas) seeking adjustment of status, the green card application requires a separate waiver of any diplomatic immunities, rights, or privileges associated with your immigration status.

I strongly advise consulting with an experienced family law attorney for drafting prenups and postnups, and an immigration attorney to navigate the green card process, prepare for interviews, and explore options in case of separation or divorce.

USCIS continues to experience processing delays due to COVID-19 and increased filings. Refer to a previous Dear Sophie column for tips on applying for a marriage green card and a podcast discussion with Anita on best practices for family green card applications and interviews.

Wishing you a long and happy marriage!

Sophie

Do you have a question for Sophie? Submit it here. We reserve the right to edit submissions for clarity and length.

Please note that the information provided in “Dear Sophie” is for general informational purposes only and does not constitute legal advice. For details regarding the limitations of “Dear Sophie,” please review 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. She is currently accepting guest applications!