How Does Divorce Affect Your Immigration Status?
By Katherine at Legal Language
Posted on 03/21/2011
Divorce is complicated enough — but it becomes even more complicated when the end of your marriage could affect your immigration status.
If you’re getting a green card through your spouse but you divorce before becoming a permanent resident, will immigration officials void your application?
Divorce, Foreign-Born Spouses & Green Cards
The Center for Immigration Studies estimates that close to 400,000 US citizens marry foreign nationals each year. These US citizens must take steps to secure green cards for their foreign-born spouses.
Immigration law classifies spouses of US citizens as “immediate relatives.” Immediate relatives of US citizens have a much faster route to getting a green card than most other US immigrants.
While you may not want to dwell on what seems like an unpleasant or unlikely situation, it is important to be aware of the ways the divorce process can affect your immigration status.
Without a US citizen sponsor, an application for permanent residency may be denied.
Divorced & Staying in the US
While it seems like a divorce may lead to a denied petition or even deportation, most foreign-born spouses going through the divorce process will be granted conditional permanent residence if they do not choose to withdraw their immigration application.
How is this possible? By filing a waiver.
If you were in the process of getting a green card before the marriage ended, you will not be able to secure one based on marriage. However, if the marriage was a good faith union, you can apply for a waiver of termination.
One or more of the following criteria must be met for the waiver to be valid and accepted by US Citizenship and Immigration Services (USCIS):
- Proof that the marital union was valid, such as photographs, evidence of shared property or leases, joint bills and other evidence of a life together.
- Proof that the immigrant spouse will suffer extreme hardship if sent back to his or her country of origin, such as a statement about the life built in the US thus far.
- Proof of having suffered extreme cruelty or abuse from a US citizen spouse, which can include sworn statements and affidavits from neighbors and family members.
Examples of the above proof along with the waiver will establish that the marriage was valid and that you should not be denied permanent resident status.
If you have already obtained a conditional green card before the marriage ends, you have conditional permanent residence. You will need to file Form I-751, Petition to Remove the Conditions of Residence, before your first green card expires.
Form I-751 has a built-in waiver for those who have divorced their US citizen spouses, but USCIS will still require proof that your union was a good faith relationship and not just for immigration purposes.
If you have already obtained unconditional permanent residence before your divorce, the only immigration issue that may occur is a delay in obtaining full citizenship status.
If your marriage to a US citizen ends within a period of three years, you may have to wait until you reach five total years of permanent residence before being able to file an application to get rid of your immigration status once and for all and become a US citizen.
Therefore, as long as your marriage was not fraudulent, divorce should not affect the immigration process.