Divorce processes are demanding and can take an emotional and financial toll on the family. It is not easy to terminate a marriage with a person you had promised to live with for the rest of your life. However, what makes divorce even more difficult is if you are a foreign-born couple or have yet to obtain formal U.S. citizenship because the divorce proceeding can have detrimental effects on your immigration status.
If you are a green card holder or alien preparing for divorce, you are likely to feel anxious. The question lingering in your mind will be:
Can the marriage termination lead to removal? How will the divorce impact your immigration status?
Below is the information you need to know about divorce and immigration to help you avoid serious problems like deportation.
Divorce After Conditional Green Card Status
Being married to an American citizen or a permanent resident does not inevitably provide you with permanent residence, but it creates the way for one. Mainly, when the marriage is younger than two years, the United States Citizenship and Immigration Services (USCIS) will want to corroborate the authenticity of the union. Therefore, when seeking permanent residency through marriage, you will obtain a conditional permanent resident visa, like the regular green card, which only lasts twenty-four months.
Holding this type of visa means that the permanent residency is temporary and risks revocation if you fail to abide by the immigration regulations. One of the primary conditions for obtaining permanent residency status as an alien in a marriage union is to demonstrate that the union is not a sham and was never established to acquire a green card visa for friendship or in exchange for money. Even though the government requires extensive documents to prove the marriage is genuine, it understands that these documents can be falsified. Therefore, by issuing a conditional visa that only lasts for 24 months, the government tests whether you can uphold the sham for that long.
If you want the permanent residence visa, you and your spouse must, within ninety days before the end of the 24-month testing duration, complete Form I-751. You should file the petition jointly and attach all documents, including new ones, to demonstrate that the union is ongoing. The documents you can link to the petition include the birth certificates of the new children and records of your visit to a marriage counselor. Couples that are faking a marriage are barely going to have children or visit a marriage counselor to try and save a relationship that does not exist in the first place.
The USCIS will have concerns about the genuineness of your marriage if you divorce within two years of acquiring a permanent residency visa. The government will question the sincerity of the marriage. It would help if you put more effort into showing that the marriage is based on a genuine foundation.
When going through the process for the first time, you will feel overwhelmed by the multiple forms you must complete, elevating the risk of errors that could cost you permanent residency or force you to reapply. When submitting a waiver, ensure that you present the following evidence:
- Proof of irreconcilable differences between you and your spouse
- Proof of adultery, domestic violence (DV) or criminal activity
- Proof of marriage reconciliation efforts, like notes from counseling sessions
USCIS will closely analyze each of these accusations, regardless of their credibility. Therefore, when filing your petition, ensure that you have the assistance and guidance of an immigration attorney.
If you complete the I-751 submission as required, you, the alien spouse, will likely obtain a permanent residency visa. The conditional residence visa duration will count when you later apply for American citizenship.
You should understand that even if you dissolve your marriage before the end of the conditional residency duration, it does not necessarily mean it was a sham. Marriages end for many other reasons apart from fraud.
Effects of Divorce on Your Conditional Residency Visa
Divorce is not an automatic indication of a sham marriage, and USCIS holds the same view. However, dissolving a marriage within 24 months of conditional residency raises many questions. The law requires an immigrant to prove that the marriage was genuine, entered into in good faith, and lasted over twenty-four months. Failure to meet these requirements makes it difficult to convert the conditional residency into a permanent one.
Luckily, even if you dissolve your marriage before the joint I-751 submission, it does not mean your stay in America is over. When completing the application forms, you can petition USCIS for a waiver and attach evidence to prove your marriage had a genuine foundation and was not a sham, even if it ended within two years.
After receiving the waiver request, USCIS will issue you with Form I-797, permitting you to live and work in the country, pending your request for full permanent residency.
If you are undergoing a marriage dissolution process when the I-751 petition is due, and your American citizen spouse refuses to sign the joint petition, your immigration matter becomes complicated. It would be best to talk to an immigration lawyer to delay the petition until the divorce proceeding is finalized.
The worst effect of divorce on your immigration status is that you could lose your visa and be declared deportable.
Regarding your progress towards becoming an American citizen by naturalization, a divorce will delay your citizenship. Usually, an alien married to an American citizen and living in the country must wait 36 months before applying for naturalization. However, the three-year exception ceases to exist once you divorce the American citizen. You must wait for sixty months before applying for naturalization.
Effects of Divorce on the Immigration Status of Children of the Alien Spouse
Typically, the immigration status of the alien spouse’s children will take the same path as that of their parents after the marriage dissolution. If the marriage is terminated before USCIS approves I-130, you and the children will lose out.
If the divorce happens within two years of a conditional green card visa, your children will also have conditional residency status. If you still want a green card, you can complete the I-751 petition and a waiver. Ensure the children are mentioned in the petition.
Also, even if you decide after the divorce that you no longer want to pursue full permanent residency, your children can separately complete I-751 but request a waiver to obtain permanent residency status. However, like in your case, the children must furnish USCIS with proof that the marriage between you, the alien parent, and your American citizen spouse was genuine.
Alternatively, when the children were battered or underwent extreme cruelty during the marriage duration, they can apply for other waivers if they can demonstrate that returning to their mother country would result in undue hardship.
If you dissolve the marriage with your American citizen spouse after the children’s permanent residency approval, the divorce will not affect their immigration status. However, you and the children will face a removal hearing if there is evidence of fraudulent activities.
Avoiding Financial Responsibility During Divorce
The American citizen or legal permanent resident who petitioned for their alien spouse to immigrate but is dissolving the marriage can avoid the financial responsibility of their ex-spouse.
When the spouse signs the I-864 affidavit supporting the immigrant’s admission, they accept legal responsibility to offer monetary support until the alien spouse dies, is naturalized, accrues forty work quarters, or permanently leaves America.
Divorce is not among these conditions. It does not end the spouse’s responsibility to the immigrant spouse. Many American citizens or green card holders receive the shock of their lives after divorcing immigrants whom they supported to obtain permanent residency when they realize that by signing I-864, they established a responsibility to provide annual support to the alien spouse. It sounds unfair, but one cannot challenge the enforceability of I-864.
During the establishment of I-864, there were concerns among lawyers about whether courts could corroborate that the form was legally enforceable between the alien and the sponsor. Years after its creation, courts still believe that financial responsibility still exists.
Many sponsors have filed lawsuits about the unfairness of providing financial support to immigrant ex-spouses thriving with their new lovers, relatives, or other people in America.
Whether the sponsor will bear the financial responsibility for the immigrant depends on the affidavit signed for the green card. If the government and the immigrant receive the submission to become permanent residents, the sponsor must agree to carry the financial burden. However, when the application is in its early stages, your citizen or permanent resident spouse can request USCIS in writing to withdraw sponsorship for I-130 for an immigrant relative so that you cannot receive I-864 and other documents, meaning the final permanent residency application will be denied. That way, the sponsor will avoid financial responsibility for you, the alien.
Nevertheless, when all the paperwork has already been received, and the alien spouse has been approved for conditional or full legal permanent residency, the sponsor cannot withdraw from the responsibility to offer financial support. USCIS can undo the permanent residency, so the sponsor’s responsibility will be terminated if there is proof that the immigration status was obtained fraudulently.
Handling of Immigration Applications After Divorce
It is not all the time that USCIS considers divorce as marriage fraud. Genuine marriages end, too, despite the earlier plans and promises. Whether you can acquire or maintain lawful permanent residency as an alien immigrating through marriage depends on the advances you have made in your immigration application.
When the I-130 petition still awaits USCIS's decision, the agency will decline the application, particularly if the petitioner, your sponsor, and ex-spouse write to USCIS against granting and withdrawing the petition.
Also, even if the I-130 has already been approved but is awaiting the American consulate or USCIS interview, the interviewing officer will ask questions sufficient to unearth the divorce and decline your application.
When applying for the first marriage permanent residency visa, you must appear for an interview with your spouse in the relevant immigration office. The purpose of these interviews is to prevent marriage fraud. The questions usually focus on the marriage's legitimacy. If you are already divorced before the interview, you will not have a reason to receive lawful permanent residency status, and your application will be denied.
However, the application process will continue if there are other reasons for permanent residency, like employment. If you are a primary beneficiary of an employment visa, the permanent residency application process will continue even after divorce. Nevertheless, it will be challenging to support your claim if you are a derivative beneficiary of a marriage.
When you have already done the first interview as a couple and obtained conditional residency status for twenty-four months, you must file the second petition jointly before the end of the conditional period. I-751 submission usually results in a second interview.
Divorcing before the second interview complicates the application. However, you can continue with the process if you can show the divorce does not make the marriage a fraud. If your ex-spouse is uncooperative and can hurt your chances at the interview, you can explore other options, like a waiver. Nevertheless, you need an immigration attorney to guide you through the process.
If you have already obtained permanent residency, a divorce will not affect your immigration status. Nevertheless, when you apply for citizenship through naturalization, USCIS will look into the marriage to determine if it was a fraud.
Effects of Divorce on Your Application to be Naturalized
Years after acquiring legal permanent residency status, you can apply for American citizenship through naturalization. However, divorce will affect the duration you have to wait before obtaining citizenship. You enjoy several privileges when married to and living with an American citizen. One of them is that you only wait 36 months of residency to apply for citizenship instead of the usual 60 months.
You can only benefit from the 36 months of residency if you have been continuously married and live with your sponsoring spouse. If you dissolve the marriage, you will need 60 months of residency to apply for naturalization.
The other issue arising after a divorce is whether the marriage was genuine or a sham. You have already spent two years of conditional residency with your American spouse and obtained permanent residency, meaning USCIS already believes the marriage is genuine. However, even if the marriage was verified, you must prove its legitimacy after divorce when applying for naturalization. The immigration authorities interviewing will have questions on what led to the dissolution of the marriage. If, for example, after obtaining a green card, you divorced your sponsoring spouse and married a new partner, with whom the marriage has outlasted the previous one, there will be questions about the legitimacy of the original marriage.
After the interview, the interviewing officer can opt to decide on your citizenship at a later date. You will wait longer for the decision if the USCIS officer has more questions about the marriage’s legitimacy and requires you to present additional paperwork to demonstrate it was bona fide and entered in good faith.
For example, when you have notes from your marriage counseling sessions, they can be compelling evidence that the marriage was real and that you were trying to save it. Producing birth certificates for the children born from the marriage can also convince USCIS that the marriage was real.
Actions American Victims of Marriage Fraud Can Take
If you married a U.S. citizen or permanent resident just to obtain a green card, your spouse can tip USCIS or Immigrations and Customs Enforcement (ICE) of the fraud. If the government suspects you have committed fraud, they can commence an investigation and place you under removal proceedings if the suspicions are confirmed. When this happens, you permanently lose your American citizenship or permanent residency eligibility.
However, your ex-spouse must wonder if the immigration authorities have the basis to believe they were accomplices to the fraud. The ex-spouse does not want to tip the authorities only to discover they are also suspects in the investigation.
Also, the ex-spouse will require sufficient evidence to further persuade these authorities to investigate the tip. These agencies receive many tips on immigration fraud, and many have previously proven to be attempts by immigrant sponsors to seek revenge for betrayal after divorce, even when the marriage was legitimate.
For your ex-spouse to approve your green card application, they must have signed an I-864 affidavit promising to offer you the necessary financial support for your maintenance. The ex-spouse's financial obligation does not end after a divorce. Therefore, they can tip the authorities of fraud because this is the only time you will lose your permanent residency status or be permanently removed from the U.S., terminating their financial responsibility toward you.
Find a Competent Immigration Attorney Near Me
If you are married to a permanent resident or American citizen, a divorce proceeding can cause a lot of anxiety because your immigration status is on the line. At the California Immigration Attorney, we will explore all the immigration consequences a divorce can trigger and find ways to protect your immigration status. Contact us at 424-789-8809 to understand how divorce will affect your immigration.