The lives of most divorcees change once a marriage ends and the divorce is finalized. However, if you are not a United States citizen, going through a divorce as an immigrant in the United States can provide several challenges, including challenges to your immigration status. If you are in the U.S. on a status that was granted based on your spouse’s application, this may mean that your relationship could significantly impact your ability to stay in the U.S. It’s important to know how ending your marriage affects your legal status in the U.S. Keep reading to review a few things you should know!
A person who immigrates to the U.S. based on a marriage that is less than two years old at the time of admission to the U.S. will receive what’s called a “Conditional Permanent Resident”. This means approval for lawful permanent residence by USCIS or entry to the U.S. on an immigrant visa given out by the U.S. consulate. This status is much like regular a permanent residence, except that it lasts for only two years. To become a permanent resident thereafter, you must file Form I-751, which is a Petition to Remove Conditions of Residence. Typically, both spouses file this form together and include documents that prove that they are still married. However, if the marriage has already ended under state law, then you may file the I-751 by yourself by filing a waiver. The purpose is to determine if this is a bona fide marriage (n simpler terms, to determine if the marriage in question is a real marriage). The U.S. government is hugely concerned with people entering sham marriages to obtain permanent residence for the non-citizen, whether for a monetary payment, a friendly favor, or something else. Although couples are asked for extensive evidence to verify the legitimacy of their marriage early in the immigration process, USCIS will revisit the case after two years to ensure that the marriage is not a fraudulent one.
Many people believe that if you get divorced before removing the conditions on your Green Card, you will automatically be deported; however, there are exceptions. An immigration attorney may be able to help you file a waiver and remain in the United States if you qualify for one of the exceptions to the rule. For example, even if you are divorced, you must show that you married in “good faith.” That means that you intended to stay together forever when you married even if the marriage is no longer viable. To show this, you may submit evidence showing that you shared a normal married life with your former spouse while you were together. Another alternative is showing you were battered or treated with extreme cruelty by your U.S. citizen spouse. If you already have a green card and are a permanent resident at the time of the divorce, the divorce should not affect your legal status with the right documentation and filing. However, the divorce may force you to wait longer to apply for naturalization. In this case, you would need to wait five years, rather than three.
If you are currently in the divorce process but your divorce has not been finalized, things are a bit more complicated. You will still need the signature of your current spouse, even if we explain to immigration that you are no longer cohabitating and you intend to divorce. If this is your situation, you should discuss your immigration case with an attorney immediately to determine what the timelines and best steps are to ensure your status is protected.
In the case where there are children involved, if they were included on the parent’s application, their status will follow that of their parent after a divorce. If the divorce takes place before the status is approved by USCIS, the status will not be approved. If the divorce takes place when the parent has received approval as a conditional resident, the children would have gotten conditional residence at the same time. If the parent decides to file an I-751 with a waiver request (exception), the children can be named on that petition and be approved or denied at the same time. Even if the parent were to decide to drop the matter and give up on immigrating to the U.S., the children could separately file Forms I-751 asking for the same waiver and to receive permanent residence. But, like the parent, the child would need to provide evidence that the parent’s marriage was legitimate in the first place. If the children have already been approved for U.S. permanent residence at the time the divorce takes place, their status will be unaffected by the divorce.
What does this mean for you? Again, a divorce is not automatically viewed as a sign of immigration marriage fraud. Plenty of bona fide marriages collapse, despite their earlier plans and hopes. Whether someone immigrating through marriage can obtain or keep their green card after a divorce depends on how far along they are in the immigration application process. If the original status is still pending before USCIS, the agency ultimately won’t approve it. If the conditional status has already been approved but the case is awaiting an interview at a U.S. consulate or at a USCIS office within the United States, the government officials handling the case will ask enough questions to uncover the divorce and deny the case at that time. If the immigrant spouse is living in the U.S. with no other legal immigration status at the time of the denial, USCIS is likely to issue a Notice to Appear. This will initiate deportation proceedings in immigration court. If the immigrant is already a permanent resident when the marriage ends, divorce will have no effect on the person’s immigration status. However, when the person applies for Naturalization, USCIS could take another look at whether the marriage was bona fide in the first place.