Divorce and Immigration Status: What Changes?

 Posted on September 21, 2017 in Divorce

Today’s world is a globally connected one. More and more people are marrying citizens of other countries and moving to other countries to be with their spouses. If you marry a foreign national and want to live with them in the United States, your spouse will likely need to become a Lawful Permanent Resident (LPR, or ‘green card holder’), and may one day become a citizen. However, if your marriage does not work out, your spouse may experience significant immigration problems.

Before Approval

If you and your foreign-born spouse intend to make your home in the United States, there is a specific procedure you must follow in order for your husband or wife to obtain legal status in this country. A U.S. citizen spouse must submit an application called an I-130, Petition for Alien Relative, in which they promise to sponsor their foreign spouse. This means vouching for his or her character and also promising that he or she will not require public assistance benefits or become homeless.

If your relationship falls apart and you get divorced before the paperwork has been approved or otherwise acted upon, the petition is essentially dead. You may still be able to sponsor the person if you so choose, but you would no longer be his or her spouse. Since your relationship will have changed status, a new petition must be submitted, and the old one will no longer be valid. In other words, if you divorce your wife, but still choose to sponsor her as a friend, you may do so, but the petition listing you as her husband is no longer accurate, so you must start fresh.

Sponsorship is legally enforceable, and there can be penalties incurred if the immigrant either becomes a public charge or otherwise winds up in a severely disadvantaged situation.

Preventing Marriage Fraud

If your spouse’s petition is approved, he or she will be granted Lawful Permanent Resident (LPR, or “green card holder”) status. A common, persuasive point of argument in these cases is ensuring that USCIS believes your marriage is genuine. A divorce in a very short period of time may appear to be a sign of a fraudulent marriage and lead to heightened scrutiny even if your marriage was in good faith.

For this reason, LPR applications for spouses are most often granted with conditions. Conditional permanent residency allows the person to be with his or her family while any further background checks continue. USCIS may take months or years to complete verification of someone’s application, and there is simply no reason to detain someone for so long. Conditional permanent residence usually lasts for a two-year period.

In order for the conditions to be removed, your spouse must apply and show that either you are still married, that he or she has been widowed or battered, or that he or she is now divorced. If a divorce occurred during the two-year conditional period, your former spouse may apply for a waiver, which in this case is essentially a chance to prove his or her good faith.

An Attorney on Your Side Can Help

Juggling divorce proceedings and an immigration case at the same time is too much for most people to take on alone. If you are in such a situation, contact an experienced DuPage County family law attorney to discuss your options. Call 630-871-1002 for a free consultation with the Andrew Cores Family Law Group today.

Sources:

https://www.uscis.gov/i-130

https://www.uscis.gov/green-card/after-green-card-granted/conditional-permanent-residence/remove-conditions-permanent-residence-based-marriage