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Divorce and Immigration: Important Considerations for Both Spouses

It goes without saying that divorce comes with many consequences, but this is particularly true for those with conditional permanent residence based on marriage to a U.S. resident and for the sponsoring resident. For these people, it is extremely important to understand the relationship between divorce and immigration.

Considerations about Divorce and Immigration for the Immigrating Spouse

A person who is immigrating to the U.S. based on the sponsorship of his or her spouse must be very careful about when and under what circumstances the marriage ends. Depending on when the divorce occurs, many consequences are possible, from a longer waiting period to achieve permanent residence to the ultimate result: removal proceedings.

No Visa Petition Filed or Only an Approved Visa PetitionMarriage Certificate and a Rose Being Cut by a Pair of Scissors | Divorce & Immigration Blog

If you have not started the process by filing a visa petition or if all you have done is file the petition, you have no further rights. A divorce will end your ability to immigrate even under an approved visa petition.

Conditional Residence (Two-Year Green Card) Received

If you have received a two-year green card (conditional residence), you will need to file your application for permanent residence on your own rather than jointly with your former spouse. If less than two years have passed, generally speaking, the divorce will end your opportunity to continue to pursue citizenship.

A divorce leaves a conditional resident with very limited options to pursue permanent residence. A conditional resident who wants to become a permanent resident must pursue what is called a “waiver.” The grounds for waiver are very narrow and include proving that the marriage was entered into in good faith, that extreme hardship would exist if the petition was not granted, or that the immigrant spouse was battered by the U.S. resident spouse. Common evidence used to prove that the marriage was bona fide includes that the couple had a child together, attended marriage counseling, or owned joint property.

In addition, a conditional resident’s application for permanent residence will receive heightened scrutiny if the underlying marriage is terminated through divorce.

Permanent Residence Approved

Immigrants who have already been approved for permanent residence (but not naturalization) need not worry until they apply to become U.S. citizens. However, different residency periods apply before they may request naturalization. If a permanent resident is married to a U.S. citizen, a three-year period applies; if not married to a U.S. citizen, a five-year period applies.

In addition, when naturalization is requested, it is likely that the marriage underlying the initial application will be scrutinized to determine whether it was fraudulently entered into for immigration purposes. If found to be so, the immigrant can expect to be deported after removal proceedings.

Considerations about Divorce and Immigration for the Sponsoring Spouse

A U.S. citizen who sponsored his or her spouse’s immigration application and who is going through divorce proceedings should take quick action to avoid continued financial responsibility for his or her spouse. This process is started by withdrawing sponsorship, as well as the previously filed affidavit of support. Still, financial responsibility continues unless and until the immigrating spouse leaves the country.

Final Thoughts about the Relationship between Divorce and Immigration in the U.S.

In addition to the consequences of a divorce on a person’s immigration proceedings outlined above, the allegations and evidence involved in a petition for divorce can affect immigration proceedings. For example, if the U.S. resident spouse alleges that the immigrant spouse entered into the marriage fraudulently to gain residence or citizenship, this could impact immigration proceedings at any stage. Likewise, a judicial finding that the immigrant spouse was at fault in the failed marriage, such as through adultery, could be fatal in immigration proceedings.

As you can see, divorce and immigration are often inextricably intertwined in the U.S. If you need legal assistance with understanding the interplay of these important issues in your circumstances, contact me, Elizabeth Rozin-Golinder, by filling out my Contact Form or calling (732) 810-0034. I have years of experience as a NJ divorce lawyer, and I'll provide legal advice tailored your situation.

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