Can Non-Citizens in the U.S. File for Consumer Bankruptcy?


If you are a recent immigrant to the Chicago area and do not have residency status, what are your rights with regard to personal bankruptcy? More specifically, are Chapter 7 bankruptcy and Chapter 13 bankruptcy options that are only available to U.S. citizens? If you are permitted to seek consumer bankruptcy protection as an immigrant, can a potential bankruptcy discharge impact your immigration status?

These are all important questions, and it is always essential to speak with an experienced Oak Park bankruptcy lawyer before you make any plans to file for bankruptcy. Bankruptcy laws are quite complicated, even if know that you are eligible to file for bankruptcy. When there are additional issues compounding the complexity of your case, such as immigration matters, it is particularly important to seek advice from a legal advocate.
Who May Be a Debtor According to the U.S. Bankruptcy Code?
To gain a better understanding to the questions we presented above, it is first important to determine who can legally be a “debtor” entitled to bankruptcy protection under the U.S. Bankruptcy Code. Under 11 U.S. Code Section 109, “only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor.” What does this mean in practice? Generally speaking, if you are not a U.S. citizen, but you fall into one of the following categories, you may be eligible to file for personal bankruptcy:
  • You currently reside, or are domiciled, in the U.S. (and have a permanent U.S. address, as well as other documentation to back up this claim);
  • You have a place of business in the U.S., such as a branch of a company you own; and/or
  • You have property in the U.S. or within a U.S. municipality, such as a second home, or sometimes even a vacation property.
There are a number of exceptions, however, and it is important to speak with a bankruptcy lawyer to ensure that you are not prohibited from being a debtor due to one of these exceptions. This is especially important if your personal bankruptcy questions are tied to the possibility of business bankruptcy.
Bankruptcy Complications for Immigrants
As you can see, you do not have to be a U.S. citizen in order to qualify as a debtor under the Bankruptcy Code. Even recent immigrants to the U.S. who are living in the Chicago area may qualify for personal bankruptcy, as long as they can prove that they are now residing in the U.S. At the same time, however, there are some important requirements for filing for bankruptcy even if you are not a U.S. citizen. Most immediately, you will usually need to have either a Social Security Number (SSN) or an Individual Taxpayer Identification Number (ITIN).
As Rule 4002 of the Federal Rules of Bankruptcy Procedure explains, the debtor has certain duties when filing for bankruptcy, and one of those duties involves providing specific forms of identification. Even for an immigrant, it should not be impossible to obtain an ITIN, especially if you are planning to work in the U.S. and to pay taxes. If you do not have a Social Security Number, you will typically be required to obtain an ITIN before you can file for personal bankruptcy.
Do you have questions about filing for bankruptcy? An Oak Park bankruptcy attorney can assist you. Contact the Emerson Law Firm today to learn more about our services.
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