I occasionally get asked whether non-U.S. citizens (“aliens”) resident in Florida can file for bankruptcy protection in Florida or can claim the Constitutional homestead exemption. The rule is that debtors must demonstrate they are permanent residents of the U.S. and Florida to take advantage of bankruptcy protection and Florida asset protection benefits such as homestead. Florida bankruptcy courts have held that an alien debtor can file bankruptcy if he can demonstrate the intent and ability to be a permanent Florida resident. In order to even be able to argue intent of permanent residency a person must have a permanent visa of “green card.”
A non-citizen who fails to maintain visa status cannot be a resident of Florida for purposes either of claiming homestead protection or filing bankruptcy because he lacks the legal right to be a permanent resident. Application for permanent visa is not enough until the application is approved and the green card is in hand.
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