There are many decisions in a divorce that can have a profound impact on the lives of everyone involved. This is especially true for some permanent legal residents, visa holders and undocumented immigrants.
To be clear: The immigration status of either spouse has no bearing on their ability to obtain a divorce in New Jersey. You are both entitled to equal access to the court system.
However, there are practical implications you may want to carefully consider and discuss with an experienced East Brunswick divorce lawyer before you act. Divorce can result in jeopardizing the immigration status for some permanent resident and dependent spouses of H1B visa holders. There is also the risk of deportation if an undocumented immigration is reported by the trial court (something that is not mandated, but within the judge’s discretion to do).
In these situations, it is critical that those involved go into the process with a clear understanding of the potential domino effect of such actions – and how to best approach each challenge. Our long-time family lawyers are here to help you through it. In complicated cases, we may recommend teaming up with an immigration attorney as well to ensure your rights and best interests are protected.
Divorce Impact for Green Card Holders
It’s important to state upfront that most green card holders won’t be impacted by a divorce. If you’re a lawful permanent resident with a 10-year green card, renewing with the standard Form I-90, Application to Replace Permanent Resident Card shouldn’t be an issue because marriage status won’t directly impact your immigration status at that point. (Some divorcees even choose this time to change their legal name, which they can do as long as they have the New Jersey Final Judgment of Divorce.)
Where a divorce can be a problem is if you received your green card through marriage to either a permanent resident or U.S. Citizen and you have been married less than two years. In these situations, U.S. Citizenship and Immigration Services issues a conditional green card. That two-year timeline is to give the agency time to evaluate whether the marriage is valid or “in good faith.” Then after the two years is up, the couple files a joint petition to remove the conditions on the resident. But, if a couple divorces before the two years is over, that can raise suspicion as to the validity of the marriage. Officials are going to carefully scrutinize the situation with the goal of determining if immigration fraud occurred. That doesn’t mean the conditional green card holder won’t be allowed to stay, but they’ll have to produce a lot of evidence showing the marriage was real and entered into in good faith.
Divorce may also impact one’s ability for naturalization if you’re applying for it on the basis of marriage to a U.S. citizen for at least three years, continue to be married at the time of naturalization and remain married until you obtain citizenship. You may be able to sidestep this if you’ve been a permanent resident at least five years.
Divorce Impact for Derivative Applicants/Dependents
If your green card or visa is derivative or dependent of your spouse’s, a divorce could negatively impact your own status, depending on your situation.
For example, if your spouse is being sponsored to live in the U.S. (usually by an employer through an I-140 petition or an H1B visa), you as their spouse may be entitled to a derivative green card or H4 visa. However, if you divorce, your immigration status could be in jeopardy.
Note that if you are divorcing an H1B visa holder on grounds of domestic violence, you can apply for I-765V that would allow you to obtain a temporary work authorization. This won’t entitle you to permanent residency, but it can be a temporary solution so you aren’t forced to leave the country as soon as the divorce is finalized.
Divorce Impact for Undocumented Immigrants
Technically, one’s immigration status shouldn’t affect divorce proceedings. Still, the risk of something like imminent deportation could certainly be factored into rulings on matters like child custody and child support.
Again, the trial court is under no obligation to report an undocumented immigrant to federal immigration authorities. But they can do so if they choose. That doesn’t mean you can’t get a divorce, but it might impact the way you go about it (for example, drawing less attention to it by opting for mediation rather than litigation). Having an attorney who is familiar with the policies and practices of the family courts in which you’ll be filing could offer invaluable insight.
The fact is that American immigration law, much like family law, can be quite complex. It’s important to consult with a family law attorney who understands the interplay between the two and can give you informed advice about your next step.
Contact the East Brunswick divorce attorneys at Rozin-Golinder Law LLC by calling (732) 810-0034.