Immigration and Divorce

Can divorce affect your immigration status? If your U.S. Visa was granted because of your spouse’s application, you may find yourself wondering what could happen if you and your spouse separate or get a divorce. The answer varies depending on how far along you are in the immigration process.

Approved visa petition (USCIS Form I-130): Form I-130 is a form submitted to the United States Citizenship and Immigration Services by a U.S. citizen or a Lawful Permanent Resident petitioning for a close relative (here, a spouse) who intends to immigrate to the U.S. Approval of the petition does not create status and if you divorce at this point in the process, you will not be able to proceed toward U.S. immigration.

Conditional Residence: If you used your spouse’s status to gain immigration status to the U.S. within two years of your marriage, you are a conditional resident.  Conditional Residence is a two-year green card given to a spouse whose marriage is less than two years old. To become a permanent resident, you and your spouse will jointly file a Form I-751 within the final 90 days of your conditional residence green card. Form I-751 is a petition to remove conditions on residence. If you divorce after being granted conditional residence but before filing Form I-751 to remove conditions, you may be able to get a waiver of the other spouse’s signing requirement, but you will have to show that the marriage was bona fide (genuine).  This is to ensure that the marriage was in good faith and not entered for the sole purpose of fraudulently obtaining a green card. Proving that the marriage was not fraudulent can be a daunting task and you will likely need an attorney’s help the specific evidence you will need to get a waiver of the spouses signature.

Approved Permanent Residence: If you already have a green card and are a permanent at the time of the divorce, the divorce should not affect your status.  However, divorce may change your approach to U.S. Citizenship.

U.S. Citizenship/Naturalization: Divorce may delay your naturalization. Naturalization is the process of obtaining U.S. citizenship. If a permanent resident is married to a U.S. citizen, he or she has a three-year residency requirement for U.S. citizenship as opposed to a five-year residency requirement. If you divorce before the three-year residency requirement is fulfilled, you will have to wait until you have been a permanent resident for five years to apply for U.S. citizenship.

Marriage Fraud: An allegation of marriage fraud by the spouse can lead to criminal liability and deportation. If your spouse seeks to obtain an annulment by claiming the marriage was fraudulent, you must contest the annulment to avoid the serious consequences that may follow.

Immigration is a complex area of law. It is important to seek an attorney who understands the intricacies of immigration and can successfully integrate the details of immigration into other areas of the law, such as divorce. If you are an immigrant and are considering a divorce, speak with an attorney that can help you protect your status. At Gorman Law Firm, PLLC, our attorneys and staff are equipped to guide you through the processes of divorce and immigration. Our firm offers legal services in Immigration, Civil, Family, Personal Injury, Traffic, Business and Criminal matters. Contact us today to set up a consultation!

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