Divorce and Deportation

 Posted on August 07, 2017 in Divorce

Sometimes, a marriage will simply not work out, no matter how hard the spouses try. However, if your soon-to-be ex-spouse is a foreign national, rather than a U.S. citizen, a divorce may have immigration consequences for him or her, which can, in turn, cause difficulties for you for considerations like child support and parenting time. Being aware of the potential issues before going ahead with the proceedings can help smooth things over between the two of you and work out any potential problems.

If Your Spouse Has a Green Card

Most of the time, if your ex-spouse has already applied for and received permanent resident status card—commonly referred to as a “green card”—he or she will be relatively safe from deportation, assuming he or she does not commit a serious crime. Permanent residents are just that, and cannot generally be deported unless there is crime involved. This is one of the major concerns that permanent residency alleviates by law. While a permanent resident will not be deported after divorce, they should, however, be aware that it can restart the clock in terms of how long they will have to wait in terms of applying for citizenship. A green card holder who is married to a U.S. citizen must wait about half as long as one who is not to apply for U.S. citizenship. However, since your spouse will be permitted to remain in the U.S. in most cases, your divorce should be able to proceed as normal.

Be advised, also, that if your spouse only has a conditional green card and you divorce, his or her permanent resident status will almost certainly be revoked. It is generally advisable, if possible, to either try and make the marriage work until the condition can be removed, or to help your spouse apply for a waiver of the joint petitioning requirement. Normally, to lift the conditions on permanent residence, both spouses must apply, but this requirement can be waived if you can show that you both entered into the marriage in good faith. Assuming the waiver can be obtained, your spouse should be able to remain in the U.S. and participate as normal in the divorce process.

If Your Spouse Is Not a Permanent Resident

If your spouse is in the country on a nonimmigrant visa or other non-permanent status, and you divorce, he or she is much more likely to face immigration removal proceedings unless he or she has another claim to permanent resident status. This can prove problematic for divorce proceedings namely because jurisdiction may become a practical concern. Illinois law grants personal jurisdiction over anyone who has minimum acceptable contacts with the state, via its “long arm” statute, but theory and practice are very different. It may prove impossible to locate your spouse in their home country. It may cost significant money that you cannot afford.

There are a few rare situations in which a divorced spouse may be able to remain in the U.S. even without permanent resident status, but they do exist. The two most common are either that the marriage ended by no fault of the foreign spouse’s - for example, if the U.S. national spouse cheated - or if the foreign spouse is able to prove that deportation would constitute extreme hardship.

Contact a Divorce Attorney

While you may require the services of an immigration attorney to determine what your spouse needs to do to remain in the U.S, you will need a divorce lawyer to begin the process of divorce as well as to plan for any potential jurisdiction trouble. Contact an experienced DuPage County divorce attorney for help with your case today. Call 630-871-1002 for a free consultation.

Sources:

https://www.uscis.gov/green-card/after-green-card-granted/conditional-permanent-residence

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=073500050K2-209

http://www.forbes.com/sites/andyjsemotiuk/2014/11/17/immigration-and-marriage-what-happens-if-you-marry-or-divorce-a-foreign-spouse/#1fa39bf86de5