Frequently Asked Questions: Immigration & Family
Yes, you are still able to file for divorce in the US if you were married in another country. In order to file for divorce in your state, you will have to first meet the state’s residency requirements.
Yes, you can file for divorce in the United States. You will need to initiate the proceedings at a local court in the state you reside in. It is important to note that filing for divorce could affect your residency in the United States. If you are a Foreign National living in the U.S. and considering divorce, contact our office to discuss all of your options post-divorce.
Your foreign divorce decree can be recognized by American courts if the following two conditions are met:
- Both spouses had notice of the divorce proceedings and if one of the spouses was living in the U.S. at the time of the divorce was initiated, they must have received a timely delivery of the divorce documents.
- Both spouses had the opportunity to be heard during the foreign divorce proceedings, whether in person or through an attorney.
In addition, since divorce is a legal matter handled by the States and not the federal government, each state may have additional requirements that must be met prior to recognizing the foreign divorce decree.
The International Parental Kidnapping Crime Act makes it a federal crime for a parent to intentionally violate the other parent’s custodial rights by wrongfully removing or keeping a child outside of the United States. You may also file a custody action with your local court and request the court to invoke the Hauge Abduction Convention.
Yes. You will need to file for divorce in the state where you live (and meet the state’s residency requirements) and you will have to give your spouse sufficient legal notice of the divorce proceedings (this is called Service of Process). Some countries have specific requirements of providing the legal notice in order for the divorce decree to be enforceable in that country. Personal Service of Process is when an adult serves your spouse notice of the divorce action and is an accepted form of Service of Process in the United States but not in Mexico. For countries that do not recognize or accept Personal Service of Process, you must use a means of international service, such as Letters Rogatory, to properly serve your spouse.
The rule of thumb for this is if the country has a secular justice system, it will recognize your divorce decree. If the country has a non-secular (or religious) justice system then it is likely that your divorce decree will not be recognized. To be sure if your divorce decree is enforceable in a particular country, you should contact an attorney in that country. You can contact the U.S. Embassy for a list of attorneys.
Every year, there are over 400,000 United States citizens who marry a foreign national and petition for them to obtain permanent residency in the United States. Under federal immigration laws, foreign-born spouses of U.S. citizens are considered immediate family members and are exempt from statute limitations. Essentially, marrying a U.S. citizen will put a foreign-born person on the fast track to obtaining their green card.
If the marriage were to fail and divorce proceedings begin, there are numerous questions about how the divorce and immigration status are affected. Below are several frequently asked questions about immigration and divorce.
Immigrants who receive permanent residency status through their marriage to a U.S. Citizen or as the child of an immigrant who is married to a U.S. citizen are granted condition-based residency status if the marriage is less than two years old. Condition-based permanent residency means that the immigrant’s (or child of the immigrant’s) permanent residence can be terminated if it is discovered that the couple entered into the marriage solely for purposes of obtaining an immigration benefit.
Immigrants with conditional permanent residency are afforded the same rights as any other permanent resident. The only difference between their status is that the conditional permanent residency is subject to termination. The process to gain permanent residency without any conditions applied requires the U.S. citizen spouse and the immigrant to jointly file to have the condition removed within 90 days of the two-year anniversary of the permanent residence being granted.
A divorce automatically terminates the conditional permanent residence – however, there is some reprieve for immigrants who find themselves in this situation. The conditional permanent resident will have to obtain a waiver of the termination if they can show that the marriage was entered into in good faith. This can be done by either showing that the couple jointly owned property or had a child together.
When a person immigrates to the United States and applies for permanent residency on the grounds that they married a U.S. citizen, and the marriage has not yet reached its second anniversary, then the immigrant will be granted a Conditional Permanent Residency status. This status means that so long as the immigrant continues to stay married, they will have permanent residency in the United States for up to two years.
In order to attain full permanent residency, the immigrant will have to petition the U.S. Citizenship and Immigration Services within two years of entering the United States as an immigrant. If at the time of this petition, they are still married then full permanent residency will be granted.
However, if at the time of the petition (or upon the expiration of the Conditional Permanent Residency status) the immigrant is in the process of divorcing (or has divorced) their U.S. citizen spouse, then the immigrant loses their residency status and becomes eligible for deportation.
When you sponsor an immigrant’s application for residency, you sign a legally binding agreement to financially support the immigrant and their dependents until U.S. citizenship has been achieved. If the individual you sponsored was your spouse and you are now beginning the process of dissolution of your marriage then you should ensure that you withdraw your sponsorship because a divorce will not necessarily remove your financial responsibility to your immigrant spouse for the time leading up to gaining their citizenship or leaving the U.S.
When an immigration application that is based on marriage (less than two years old) is pending before the United States Citizenship and Immigration Services and the immigrant divorces from their U.S. citizen spouse, then the immigrant spouse will lose their conditional residency status upon the dissolution of the marriage. It is also likely that the immigrant spouse will be eligible to be deported after the finalization of the divorce.
The exception would be if the marriage reaches the qualifying two years but the immigrant is still within their two-year conditional residency period when the divorce is finalized then the immigrant would be eligible to apply for a waiver of the joint filing requirement because they entered the marriage with good faith.
An immigrant’s permanent resident status is labeled as conditional if it is based on a marriage that is less than two years old. According to the United States Citizenship and Immigration Services, you can remove the conditional status of your permanent residency if you:
- Are still married to the same U.S. citizen or permanent resident after 2 years. You may include your children in your application if they received their conditional-resident status either at the same time or within 90 days as you did;
- Are a child and, for a valid reason, cannot be included in your parents’ application;
- Are a widow or widower who entered into your marriage in good faith;
- Entered into a marriage in good faith, but the marriage ended through divorce or annulment; or
- Entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S.-citizen or permanent-resident spouse.
If the immigrant spouse has held conditional residency status for at least two years, then they will not need their spouse’s assistance to file the I-751 petition to remove the conditional status of their residency. If your marriage is over two years old, then your immigration status will not change after the divorce. If, however, your marriage is ending before it reaches your second anniversary, you can opt to file for a waiver of the two-year rule. The waiver can be based on one of the following grounds for termination of the marriage: dissolution of a good faith marriage, extreme hardship if deported, or spousal/child abuse.
A divorce cannot negatively affect the immigration status of an alien if they have been granted unconditional residency status. The only effect a divorce may have at this point is to delay the immigrant’s eligibility date to apply for U.S. citizenship.
When an immigrant holds permanent residency status and is married to a U.S. citizen, their wait time to apply for U.S. citizenship is three years. An immigrant not married to a U.S. citizen has a five-year waiting period.
Marriage fraud is when an immigrant and a U.S. citizen marry for the sole purpose of gaining a residency status for the immigrant. Some cases involve knowledge of the fraud by both parties, while other cases involve taking advantage of a U.S. Citizen. If you believe your spouse only married you in order to get a green card then you can submit an allegation of marriage fraud to the United States Citizenship and Immigration Services and petition for an annulment based on fraud. The immigrant spouse will have to contest the allegations and prove the marriage was not entered based on fraudulent reasons. False allegations of marriage fraud can lead to criminal charges for a U.S. Spouse.