When it comes to navigating the issues faced by American citizens marrying foreign nationals — and determining where to live or retire after marriage — Michelle Soufan speaks from personal experience. Soufan, a CFP and senior client advisor with TFC Financial Management in Boston, not only has a number of clients who have faced these issues; she also married a French citizen this year.
Her first piece of advice to citizens desiring to marry a non-citizen is to be “open minded and patient” because their options may become quickly limited as they plan their nuptials. The second is to begin not by asking themselves where they would like to marry, but rather “where can we get married,” based on where the two people are located and their immigration status.
In the case of a citizen wishing to marry a “foreigner” in the U.S., many financial and legal hurdles, including plenty of paperwork, must be overcome before tying the knot legally.
In an interview, Soufan provided advice for dual nationals contemplating marriage and for advisors who by chance or design have clients facing those legal and financial hurdles.
Getting Married in the U.S.
If you are an American citizen considering marrying a non-citizen in the U.S., one of the options is to use a fiancée visa, Soufan says, which allows you to marry in the U.S. but under a strict time deadline of 90 days, which if you don’t meet, the non-citizen “has to leave.” The alternative for the non-citizen who perhaps isn’t looking to live in the U.S. permanently after the marriage would be to marry abroad, and then applying for a green card. That was the case with Soufan’s fiancée: they married in France and then her husband started the green card process. Her suggestion is to avoid marrying in the U.S. if the non-citizen travels to this country using only a visitor’s visa.
The green card process, which can eventually lead to U.S. citizenship, itself can be lengthy and intricate for both the sponsor (the U.S. citizen) and the beneficiary (the non-citizen). Both parties must prove that “your marriage is real,” so gathering and storing documentation early that “shows you’re a real couple” is essential to the process. Immigration officials will look for items such as leases if you live together, or life insurance policies, mail that includes the couple’s names, even photographs. “It feels very personal,” Soufan says, seeking records of phone calls between the two parties, “even texts!”
In addition, the petitioner (the citizen) must turn over financial records such as bank accounts and tax returns, since immigration is looking for proof that the petitioner has the financial resources to support the beneficiary (the non-citizen).
Immigration will also look at the beneficiary as well to determine his relationship to the U.S. Has he traveled here before? What is his employment and family status? Has he overstayed past visas? Finally, there’s an in-person interview and even a medical exam. “It’s an intricately involved process for both” members of the couple, Soufan says, and immigration “doesn’t kid around.”
While immigration issues in general have gained higher prominence since Donald Trump was elected president, the process above for gaining a green card (greatly simplified above) has not significantly changed since 2016. What has changed is that the wait time for getting a green card has increased due to a backlog of applications created by last year’s government shutdown. “The last I checked online,” says Soufan, the estimated wait time for a green card “is in the eight-to-11-month range,” compared to a more normal three-month wait. “And that’s just for the first phase of the green card,” she points out.
As an example, as of May 29, the U.S. Citizenship and Immigration Services estimated it would take 5.5 to 7.5 months for it to process a K1/K2 “Not yet married-alien fiancé(e) (I-129F)” petition using the CIS’s Vermont service center.
Unlike nearly every other country in the world, U.S. citizens living outside the country have long been required to pay taxes to the IRS on all their income, even that gained in another country that was subject to that country’s income tax laws.
Some recent changes in U.S. tax law, notably the sweeping tax overhaul passed in 2017, has affected American citizens living abroad. The law’s ‘repatriation’ tax was designed to raise revenue by encouraging U.S. multinational corporations to pay lower taxes on their foreign earnings that had been ‘parked’ overseas. But Americans living abroad who hold dual citizenship are also subject to the tax, which must be paid quickly to forestall the possibility of dual nationals giving up their U.S. citizenship to evade the tax. The number of Americans renouncing their citizenship jumped from 231 in 2008 to an all-time high of 5,411 in 2016; the number doing so in 2018 was 3,983, according to the U.S. Treasury Department. Moreover, some U.S. citizens and green card holders who renounce their citizenship or green cards are subject to an expatriation, or “exit,” tax from the IRS — another reason to get expert accounting or tax attorney help when considering such a step.
For an American citizen who’s contemplating getting married overseas to a non-citizen, there are additional issues. While it will vary by country, a U.S. citizen can qualify for an exclusion of some of their income being subject to U.S. taxes based on the amount of time they’re living overseas. “There’s also a housing piece” to that exclusion, Soufan points out, so there may be some ways to shelter income from U.S. taxes. But those exclusions, such as the Foreign Earned Income Exclusion (FEIE) and the Foreign Tax Credit (FTC), have strict guidelines, which is why consulting with an accountant experienced in overseas income is crucial. If the U.S. citizen happens to be working for a large multinational firm, she likely can obtain some resources from the company if they relocate many people overseas.
While taxes likely should be a secondary consideration for a married couple in determining where they want to live, there are estate planning implications to a move. Soufan cites a client whom she has been working with whose daughter moved to Europe because the estate inheritance laws are so different. While married U.S. citizens can leave their estates to their surviving spouse without tax consequences, that’s not the case in many foreign countries.
If you need to find expert financial and legal help pre-marriage for a client, an advisor can begin by perusing government sites for general background information. However, Soufan says the smartest move is to approach your network of attorneys and CPAs for referrals, but then only consider those with experience in international legal and financial issues. Find an expert in international estate work, she says, and for immigration legal issues consider members of AILA, the American Immigration Lawyers Association (AILA’s site includes a ‘Find an Immigration Lawyer’ feature).
Once you find some candidates, Soufan suggests you conduct your due diligence by interviewing each to determine their level of experience — “make sure they have tenure in the space” — and to discover what kind of fees they will charge.
Particularly with attorneys who charge by the hour, make sure that your client gathers all the information she will need to satisfy the government as to her good intentions and prior actions regarding her wish to marry a non-citizen. The process “can get very expensive, very quickly,” Soufan warns, so “the more organized you are early, the better.” If you’re not organized, that will make your experts “work harder; that will cost you,” Soufan warns.