Bankruptcy and Immigration

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Written by Attorney Amelia Niemi.  
Updated July 28, 2020

Summary

This article will address some common concerns that immigrants may have about filing bankruptcy, and illustrate that in the vast majority of cases, bankruptcy and immigration do not have an effect on one other. It will also explore the few situations wherein filing bankruptcy could have a negative effect on an immigration application.

Bankruptcy offers many benefits in America. It allows people to wipe out certain debts and get a fresh financial start to their lives. However, bankruptcy is a complex process and may understandably cause some filers anxiety. For example, foreign nationals may have concerns about how filing for bankruptcy could affect their immigration status. 

This article will address some common concerns that immigrants may have about filing bankruptcy, and illustrate that in the vast majority of cases, bankruptcy and immigration do not have an effect on one other. It will also explore the few situations wherein filing bankruptcy could have a negative effect on an immigration application.

Is Bankruptcy Relief Tied to Immigration Status?

The first thing to know about bankruptcy and immigration is that bankruptcy relief is not tied to your immigration status. Bankruptcy is available to all United States residents. This includes citizens, legal residents, and immigrants. All residents may file for bankruptcy under Chapter 7, Chapter 13, or another chapter of the Bankruptcy Code, depending on their personal financial status.

Having a social security number (SSN) is not a prerequisite to filing bankruptcy. On the bankruptcy petition, you’ll need to list either your social security number or your Individual Identification Tax Number (ITIN). Many immigrants do not have social security numbers, but the IRS issues ITINs to help people comply with US tax laws and file their tax returns. These are available to nonresident immigrants, including undocumented immigrants, as well as permanent residents.

Bankruptcy Probably Won’t Affect Your Immigration Status

For most immigrants, filing bankruptcy won’t impact their ability to remain in the U.S. It also won’t affect their application for a green card or their application for U.S. citizenship. That’s because filing bankruptcy is permitted by federal law. People who file bankruptcy are following the law and exercising their rights.

Additionally, filing bankruptcy will not put you in danger of violating the “public charge” rule. In the U.S., the government can deny a visa to people who are likely to become a public charge. Although this term isn’t defined by law, it usually applies to people who might require government benefits, such as food stamps. Bankruptcy relief is not funded by government or tax funds; instead, it provides a balance to ensure the rights of private companies while providing private individuals certain levels of debt relief. Because of this, filing for bankruptcy should not affect your immigration application.

It’s also important to know that the act of filing bankruptcy does not put you at risk for deportation from the United States Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement (ICE). The bankruptcy court system does not care about citizenship status, and will almost certainly not report your immigration status to one of these departments – if the court even becomes aware of your status in the first place, which it might not.

When Filing Bankruptcy Might Affect Your Immigration Status

Even though in most situations, bankruptcy won’t matter for immigration purposes, there are some situations where filing bankruptcy could impact your status as an immigrant, so it’s important to review the rules closely to understand how you could potentially be impacted. If you believe that your situation could fit into one or both of the following categories, your best bet is to work with an attorney to avoid making any costly mistakes.

Bad Moral Character

Someone applying to be a U.S. citizen must demonstrate good moral character. Not being able to pay medical debt is not a sign of bad moral character. In most situations, neither is being overwhelmed by credit card debt, or falling behind on your mortgage. Federal law acknowledges that people fall into tough times and sometimes need a second chance, which is why bankruptcy exists in the first place.

However, some people will use bankruptcy as a way to avoid paying for an unusually lavish lifestyle. They might book expensive vacations on credit, then file bankruptcy to avoid paying their debt. Some people will also try to use bankruptcy to avoid paying spousal support (alimony), child support, and taxes. This sort of bad faith filing can demonstrate bad moral character, which can affect your immigration case and/or citizenship application.

Bankruptcy Crimes

Additionally, if your bankruptcy filing shows that you committed a bankruptcy crime or exposes that you committed an alternative crime under U.S. law, such as tax evasion, tax fraud, or identity theft, this may affect your immigration status and citizenship application. 

Note that you will be committing bankruptcy fraud if you lie on your petition. This in itself is a crime. Even though you won’t be swearing an oath in open court, signing your name on a legal document if you know the document contains false information, such as your bankruptcy petition, is lying under oath. Any sort of fraud or other bankruptcy crime in your bankruptcy petition will negatively affect your status.

If your bankruptcy petition discloses evidence of a crime, having your application denied or status revoked will probably be the least of your concerns. Being convicted of a bankruptcy crime can lead to further financial penalties as well as a prison sentence.

Conclusion

Many American immigrants file for bankruptcy safely, with no negative effects on their immigration status. Despite this, there are some situations wherein filing a bankruptcy can negatively affect you. 

If you believe that your bankruptcy petition could negatively affect your immigration case, your best bet is to speak with an experienced bankruptcy attorney or immigration attorney. Your bankruptcy lawyer can provide legal advice about the Bankruptcy Code and help you figure out your best options for financial relief. Additionally, an immigration lawyer can help you work through any immigration implications involved with your bankruptcy.

About the author

Attorney Amelia Niemi
Amelia Niemi is an attorney licensed in Illinois. She received her J.D. from DePaul University College of Law. At DePaul, she was a staff writer for the DePaul Journal of Art, Technology & Intellectual Property Law. Her legal practice includes multi-million-dollar international b... read more

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