Divorce and Immigration Status: What You Need to Know

Divorce can be a challenging and emotional process for anyone. However, for those who are in the United States on a visa sponsored by their spouse, it adds an extra layer of complexity and anxiety. 

Understanding how divorce can affect your immigration status is crucial, especially in a state like California, which is home to a large immigrant population. Here’s what you need to know if you’re navigating this complicated intersection of family law and immigration law.

The Impact of Divorce on Immigration Status

“Immigrant” is an extremely broad category encompassing everything from short-term visas to people who have received their permanent residency or even their citizenship. As such, there’s no single answer regarding how divorces impact immigration status. Instead, the effects are based on the type of visa you hold.

First and foremost, you should know that if you have unconditional permanent residency or full citizenship already, your divorce should not directly impact your status in the US. However, immigration law is complex, so it’s always important to talk to an attorney if you have any questions about your status. 

If you have less than an unconditional green card, your divorce could substantially alter your right to remain in the country. Let’s break things down based on where you are in the process:

Divorce and Conditional Permanent Residency

If you’re in the U.S. on a conditional permanent resident visa, a divorce can significantly impact your status. Conditional permanent residency is typically granted to individuals who have been married to a U.S. citizen or permanent resident for less than two years. This status is conditional for two years and requires subsequent actions to make it permanent. 

Under normal circumstances, you would be able to file a Form I-751 in the 90 days before your two-year green card expires. This petition is filed jointly by both spouses to show that they are still married and living together. However, divorces complicate this process.

In the case of a divorce, you can still file Form I-751, but you must request a waiver of the joint filing requirement. To do this, you need to demonstrate one of the following:

• The marriage was entered in good faith, but it ended in divorce (or annulment).
• The marriage was entered in good faith, but the conditional resident was battered or subjected to extreme cruelty by their U.S. citizen or permanent-resident spouse.
• The termination of status and removal would cause extreme hardship.

When filing I-751 with a waiver, it is crucial to provide evidence that the marriage was bona fide or genuine and not entered into for the purpose of evading U.S. immigration laws. This evidence might include joint bank statements, lease agreements, photographs, birth certificates of children born to the marriage, and affidavits from friends and family attesting to the legitimacy of the marriage.

In this case, while divorcing doesn’t automatically lead to the loss of conditional permanent residency, it does necessitate additional steps and careful documentation to remove the conditions on residency and eventually seek permanent status in the United States.

Permanent Residency and Citizenship Applications and Divorces

Suppose you are applying for a green card through marriage to a U.S. citizen or permanent resident, and you divorce before the green card is granted. In that case, this can significantly complicate or even nullify your application. If your application is based solely on your marriage, divorcing may lead to the denial of your green card.

Meanwhile, if you are seeking citizenship through marriage to a U.S. citizen, you must have been married to and living with that citizen for at least three years before applying. You must continue to be married up until the time of naturalization. A divorce during this period can affect your eligibility.

In either case, if USCIS had previously questioned the authenticity of your marriage during your green card application, a subsequent divorce might lead them to scrutinize your ongoing permanent residency or citizenship application more closely.

Spousal Employment Visas and Divorces

If you are in the U.S. on a spousal visa tied to your partner’s employment, such as an H4 or L2 visa, a divorce will likely mean the loss of your visa status. You may need to leave the country or apply for a different type of visa to remain in the U.S. legally.

What to Do If You’re Concerned About Your Divorce as a Legal Immigrant

Given the complexities of both family and immigration law, it’s crucial to consult with attorneys who specialize in these fields. They can provide guidance tailored to your specific situation. They will also assist with matters such as:

• Collecting and Preserving Documentation: Ensure you have all necessary documents that prove the legitimacy of your marriage. This includes joint bank statements, lease or mortgage agreements, photographs, and anything else that can support your case.
• Understanding the Timeline: Be aware of the timing of your divorce and how it intersects with your immigration applications. Certain applications or statuses might require you to be married for a specific duration.
• Exploring Other Visa Options: If your current status is dependent on your marriage, explore other visa options that might be available to you. This could include employment-based visas, student visas, or other categories for which you might be eligible.
• Considering the Impact on Children: If you have children who are also dependent on your immigration status, consider how a change in your status might affect them. This is especially important in custody discussions during the divorce proceedings.

While divorce does not automatically negate your chances of obtaining permanent residency or citizenship, it can complicate these processes, requiring additional steps and scrutiny. It’s vital to understand your specific situation and prepare accordingly.

Experienced Divorce Attorneys for All California Residents

Navigating a divorce as an immigrant can be daunting, but understanding the legal implications and preparing accordingly can make a significant difference. Remember that each case is unique, and professional legal advice is invaluable in these situations. As a California attorney’s office specializing in family and international divorce law, we are here to provide the support and guidance you need during this challenging time. We encourage you to schedule your consultation today to learn how we can help you.