Foreign Nationals Filing for Bankruptcy

Internationally, many people view the United States of America as the land of opportunity, where anyone has the chance to obtain wealth. Many immigrants have come to these shores with nothing but the clothes on their backs and have succeeded at achieving the American dream. Millions of illegal immigrants have come to this country, as well, in the pursuit of a better life. Others come on student visas for the opportunity to study in American universities.

When people come to the United States, many look for work. Even those coming to study at colleges often take part-time employment for tuition or living expenses. Because these people will, on average, accept lower-paying jobs, they often do find employment. Moreover, many immigrants have networks in place here in the U.S. that help them  adjust, find housing, and jobs.

Nonetheless, those people who come to the United States often have difficulty obtaining citizenship. The citizenship rules and requirements for the U.S. are strict. As a result, people who become professionals and engage in business in the U.S. dealings often remain foreign nationals.

When people engage in business, many incur significant debt. Similarly, people borrow money with the idea of paying it back when they get their degree or find that job. When that job does not come, these foreign nationals sometimes find themselves in crushing debt.  When this happens, can the debtor, who is not a U.S. citizen, file for bankruptcy? The short answer is yes.

Bankruptcy Code Requirements

The United States Bankruptcy Code in Section 109(a) states that the only prerequisite for filing for bankruptcy is that the “person” resides, has a domicile, a place of business, or property in the United States. A person, under the bankruptcy code, can be either an individual or a business. There is no citizenship requirement. Even an undocumented, or illegal, immigrant can file for bankruptcy relief. However, to file, a debtor may need to present a social security number or a tax identification number, or ITIN. An ITIN is a number used by the IRS to process those not eligible for social security. One must ask the IRS for an ITIN. The IRS issues ITINs without regard for immigration status.

Note that filing for bankruptcy can affect an immigrant’s status. The Immigration and Naturalization Service, or INS, can access such information because it is on the public record. The INS, when determining whether to bestow citizenship upon applicants, considers factors on a case-by-case basis. Filing for bankruptcy may hamper someone’s ability to obtain citizenship.

Note that even a small property connection to the United States may be considered “property” under the bankruptcy code. Some courts have held that having a small bank account in the U.S. qualifies as property under the Code, even if the debtor does not reside in the U.S. Other Courts reject this notion and require a more substantial connection.

In debt? Bankruptcy may be right for you. Contact the Bay-area consumer bankruptcy law firm of Melanie Tavare.