Non-Citizen Immigration Divorce

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 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 are started, there are numerous questions about how the divorce will affect the immigration status of the non-citizen. The Law Offices of Hernandez and Smith, P.A. work with both divorce and immigration cases. We can provide you specialized experience in your area of need if you are an immigrant going through or considering a divorce.

Below are several frequently asked questions about immigration and divorce.

How Will a Divorce Affect My Issuance of a Conditional Green Card?

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.

What is Conditional Permanent Residency?

When a person immigrates to the United States and applies for permanent residency on the grounds that they married a U.S. citizen or a legal permanent resident, 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.

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, or legal permanent resident, then the immigrant loses their residency status and becomes eligible for deportation.

I Sponsored My Spouse’s Immigration Application but We Are Divorcing – What Next?

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 or other conditions are met. Divorce will not necessarily remove your financial responsibility to your immigrant spouse for the time leading up to gaining their citizenship, leaving the U.S., or other conditions being met.

How Are Immigration Applications Treated After a Divorce?

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 or the Legal Permanent Resident spouse, the immigrant spouse may lose their conditional residency status upon the dissolution of the marriage unless he or she obtains a waiver and removes conditions on her or his own.

There are exceptions to the requirement to have both spouses jointly file to remove conditions before the expiration of the two-year residence. For example, If the divorce is finalized by the time the immigrant spouse must remove conditions, the immigrant spouse can apply for a waiver of the joint filing requirement on that ground and if they entered the marriage with good faith.

What is Conditional Residence Status and How Can I Become a Full Permanent Residential Status?

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 (USCIS), you may be eligible to remove the conditional status of your permanent residency if you meet one of the following requirements:

• If you are still married after two years to the same U.S. citizen or permanent resident that sponsored your petition.
• If you are a child who received their conditional residency status at the same time (or within 90 days) as their parent.
  • Exceptions may be made for a child who was not included on the parent’s application if certain conditions are met.
• If you are a widow or widower who entered into your marriage in good faith and your spouse passed away before the two-year anniversary.
• If you entered the marriage in good faith and
  • The marriage ended through divorce or annulment;
  • You or your child were battered by your U.S. Citizen or permanent resident spouse; or
  • You or your child were subjected to extreme hardship because of your U.S. Citizen or permanent resident spouse.

What Can I Do to Maintain My Immigration Status if I am Divorcing?

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 joint filing requirement. 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.

How Will a Divorce Affect an Unconditional Residency Status?

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 before they are eligible to naturalize.

I Think I May be a Victim of Marriage Fraud – What Can I Do?

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 or vice versa. If you believe your marriage was for fraudulent purposes, you can 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. Allegations of marriage fraud can lead to criminal charges for a U.S. or Legal Permanent Resident spouse and to criminal charges and/or permanent fraud bar to immigration benefits for the immigrant spouse.