Divorce and Immigration Status

 Posted on May 19,2015 in Divorce

While the stereotype one sees in Hollywood is people marrying for citizenship, the fact of the matter is many couples have legitimate immigration concerns as they move forward in marriage and in the event of divorce. Depending on which stage of the immigration process you happen to be in, the act of divorcing your spouse can have varying effects on your residency status.

Visa Application (Green Card)

If you are in the start of your immigration process and your spouse has filed a visa petition on your behalf, a divorce would derail that petition and prevent you from moving forward in the process.

Conditional Permanent Residency

Permanent residency status is conditional if it is founded on a marriage that is less than two years old on the day you were given residency. This means your immigration status is affected by your marriage status, and thus you have conditional permanent residency. Ultimately, the federal government wants to make sure you did not fraudulently marry simply for the sake of citizenship.

However, you may apply to remove the conditions based on certain circumstances. For example, you may claim you entered the marriage in good faith but it ended through divorce or annulment. This can put you at risk of being removed from the country, so it is important to apply for removal of the conditional status as soon as possible after you receive your permanent residency. Otherwise, you will be required to give evidence that removal from the country will be a hardship.

Typically speaking, in order to remove the conditional status, both you and your spouse must apply to remove the condition. This joint filing requirement, however, can be waived if you are divorced. In order to have the joint petition requirement waived, you must show that you entered into marriage in good faith, it ended by divorce/annulment, and you were not at fault for failing to file a timely joint petition. If you are in the process of getting divorced, but want to remove the conditional status on your residency, you may ask for a joint petition waiver or file the joint petition.

Permanent Residency

If you have been approved for permanent residency, a divorce will have no effect on your immigration status. However, when you apply to become a naturalized citizen, the U.S. Citizenship and Immigration Services authorities will review your entire immigration history. If there is any evidence that your marriage was a sham to get a green card, they will ask you provide evidence that the marriage was real. If you cannot do so, they may deny your citizenship application.

Juggling divorce proceedings and the immigration/citizenship process is extremely complicated and the stakes are exceedingly high. You will need an experienced divorce attorney to walk you through the process. Please contact our experienced DuPage County family law attorneys today to discuss your case.