CASES OF INTEREST - TN VISA HOLDER’S ACCESS TO U.S. COURT FOR DIVORCE

In the state of Washington court case In re Marriage of Gunderson, the court ruled that it had jurisdiction to dissolve the marriage between a Canadian citizen who was present in the U.S. under TN visa status, and her spouse who was residing in Canada.

The Court determined that this individual's TN visa status did not preclude her from establishing that she had a "domicile" in the state of Washington. Having a domicile in the state was required for the Court to have jurisdiction over her divorce case. The Court rejected the husband's argument that his wife could not meet the domicile requirement because her TN visa status permitted only a temporary stay in the U.S. In fact, the Court concluded that the issue of domicile for purposes of a marriage dissolution case did not depend on U.S. immigration laws.

Compare this decision with Hanano v. Alassar, where a Virginia court determined that an individual's TN status was inconsistent with her allegation that she satisfied the domicile requirement necessary for filing for a divorce in Virginia. The court, nevertheless, found that the TN visa holder had otherwise established that she intended to make her domicile in the state despite the conflict this intent may have with her TN status.

TN visa holders seeking divorce in U.S. courts should exercise caution on how rigorously they respond to allegations that they do not meet the domiciliary requirements to file a divorce action in a particular state. Zealously manifesting an intent to reside permanently in a state may allow access to a U.S. court for divorce, but may also result in complications with a subsequent TN visa application.

Many court cases are now published freely online (as the above two were) making any manifestations of permanent intent readily available to a CBP or Consular officer through a Google search of an applicant's name. Immigration officers do conduct internet searches of TN visa applicants, and may use statements in these court opinions as evidence that an applicant does not meet the temporary entry requirements for a TN visa.