I Don’t Have a Legal Immigration Status in the United States – Can I Still File for Bankruptcy?

Immigration BankruptcyIn Georgia, there are many foreign nationals who are raising American families, contributing to the Georgian economy and helping local communities, but who do not have valid immigration status in the United States.  Many of these foreign nationals have also been hit hard by the economic recession.  In light of the President’s recent announcement of his executive orders which are aimed to help similarly situated foreign nationals, many of these people have contacted our office to discuss both their immigration and their bankruptcy options.

At the Law Offices of Michael West, our staff is knowledgeable and experienced in both immigration and bankruptcy law.  One of the most frequently asked questions we receive involves both of these specialties: “If I don’t have immigration status, can I still file for bankruptcy?”  Read on to learn more about this topic.

What the Bankruptcy Law Says

The bankruptcy law does not require people who file bankruptcy applications (these people are called debtors) to be U.S. citizens or lawful permanent residents (green card holders).  However, in the majority of cases the law does require debtors to have an Individual Taxpayer Identification Number (ITIN) or Social Security Number (SSN) before the debtor may file the bankruptcy case.  Most undocumented foreign nationals do not have SSNs and cannot apply for one without proof of valid immigration status in the United States.  Therefore, an undocumented foreign national may need to apply for an ITIN before filing a bankruptcy case (because ITINs can generally be issued by the IRS without proof of valid immigration status).

Additionally, the bankruptcy law and courts also require debtors to prove their identity.  This proof typically must come in the form of a valid and unexpired government-issued document such as a passport or a state-issued driver’s license.  For undocumented foreign nationals, obtaining such a government-issued identity document may be difficult without proof of valid immigration status.

What the Immigration Law Says

The current immigration law does not specifically reference bankruptcy.  However, if an undocumented foreign national were to become eligible to apply for a green card in the future, the bankruptcy filing may become an issue.  The reason for this possible issue is because immigration law requires foreign nationals to prove that they will not become “public charges” once they receive their green cards.  A public charge is someone who must utilize public welfare programs in order to survive.

Filing for bankruptcy does not automatically disqualify a foreign national from obtaining a green card.  However, a bankruptcy case may require the foreign national to take additional steps to safeguard green card eligibility, such as by finding a family member to execute an I-864 Affidavit of Support.  An I-864 Affidavits is a legal contract between the sponsor and the U.S. government that says the sponsor will financially support the foreign national in order to prevent the national from becoming a public charge.

Additional Pointer

Also, this is just a friendly reminder that bankruptcy filings are public records, meaning that anyone can look up a bankruptcy case and discover who filed the bankruptcy and when.  Because of this issue, and the aforementioned discussion about public charges in immigration law, it is highly, highly recommended that undocumented foreign nationals who are contemplating filing for bankruptcy speak to an attorney who is knowledgeable in both bankruptcy and immigration law.  Remember, in most cases you cannot “take back” or “undo” a bankruptcy filing, so it is best to be completely prepared (and fully informed!) before beginning this process.

To learn more about hiring an experienced attorney who is knowledgeable in both immigration and bankruptcy matters, contact our office today.  We look forward to speaking with you!