A case came up this week concerning whether a person who owes child support will be able to apply for naturalization. This goes directly to Question 30.H. in Part 11 of the N-400, which asks, “Have you ever failed to support your dependents or to pay alimony?” The answer to this question can have a substantial impact on the applicant’s showing of good moral character.
This question encompasses not only court ordered child support, but even absent any legal obligation, the courts have recognized a natural responsibility, stating that parents have a “moral and legal obligation to provide sufficient support for their minor children.”
- Practice Tip: This does not only mean children who are living in the U.S.! If the applicant has minor children in another country, this obligation extends to those children as well, regardless of the absence of a legal order in that country.
As one AILA member succinctly wrote, USCIS considers that the “obligation to support dependents does not come from a court order; it comes from being a parent.” As such, experience from other practitioners and cases proves that this matter is taken extremely seriously in consideration of a person’s application for naturalization.
“Failure to support dependents” has been interpreted to mean a willful failure or refusal to support one’s children, unless extenuating circumstances are proven. Examples of failure to support can include:
- Desertion of a child
- Failing to pay any support
- Payment of an obviously insufficient amount
The question asks about willful failure to support, absent extenuating circumstances. Those circumstances that an Immigration Officer can consider are:
- Unemployment and financial inability to pay;
- Cause of the applicant’s unemployment and financial inability to pay;
- Evidence of the applicant’s good faith effort to reasonably provide for his/her dependents;
- Whether there was an honest mistake in believing that the applicant’s obligations had been terminated; and
- Whether the nonpayment was due to a miscalculation of arrearage.
There have been numerous cases that have discussed this issue, and each decision is very dependent on the particular facts and circumstances of the applicant. In one case, in which there was a court order, a father was making payments for children who were not living with him, but the payments were less than what was required, due to low income. Because of this, he was in arrears. Then, he stopped making any payments because one of his daughters suffered a medical injury and he needed to pay those expenses. The court found that these circumstances did not have adverse finding on his good moral character because he was making payments, he had low income, and due to his daughter’s unforeseen injury. In re Huymaier, 345 F. Supp. 339 (E.D. Pa., 1972).
When looking at cases where a person has not supported his/her child(ren), make sure that the applicant is not in arrears. A person should catch up on his/her payments, and keep those payments current at the time of filing and through the naturalization process.
- Practice Tip: The issue does not stop at naturalization. The Department of State can deny the issuance of a U.S. passport if a person is delinquent in child support payments. If a person owes $2500 or more in child support, he/she will need to make an arrangement to pay the state where the support is owed. The U.S. Department of Health and Human Services maintains a list of outstanding arrears, which State references when a person applies for a passport. You can find more information here.
If children are listed on an application who are not living with the applicant, you should be prepared for the officer to ask whether the applicant is supporting those children. You should bring proof of payments, including:
- Any court ordered payment arrangement;
- A notarized letter from the other parent stating that the applicant provides support to his/her child(ren);
- Copies of checks;
- Bank statements; and/or
- Money order receipts.