How Does Divorce Affect an Immigration Process?
Going through a divorce is usually stressful in itself. But when you add to the trance of ending a marriage the fact that, in turn, this is the basis for the immigration procedures of one of the spouses, the inconvenience can multiply. So, even though all your time and energy are probably focused on the divorce process itself, you will not overlook how this change in your relationship may or may not affect whether you can legally remain in the territory of the American Union once the marriage bond has been dissolved, if you are not a citizen of the United States. Here are the answers to the 10 most common questions that arise when divorce and immigration are two elements that converge in the same marriage relationship, which is heading towards its termination:
- If my spouse and I separate, will it affect my immigration benefits? Maybe. Both De Facto Separation and Legal Separation (which is ordered by a court) do not constitute a breakdown of the marriage bond; therefore, mere separation will not affect your immigration status as long as it is not a divorce. In some States, however, a prolonged legal separation may turn into a divorce after a certain period of time has elapsed; in these cases, the possibility of obtaining citizenship through marriage would be null and void, because it depended on the life of the marriage to be granted.
- Will my divorce affect my nonimmigrant status? If your status is based on your marriage to another non-immigrant (i.e., if your current status is H-4, L-2, or J-2), then divorcing that other nonimmigrant would automatically cease your status. Therefore, if you wish to remain in the United States, you must process obtaining another non-immigrant status before finalizing the process of your divorce.
- I have approved a Petition for Family (I-130) based on my marriage to a U.S. citizen and we had filed the application for my Permanent Residence (I-485), which is still pending. Will my divorce affect my ability to obtain my Permanent Residency? Yes. Your eligibility for Permanent Resident status depends on your marital relationship with a person who holds U.S. citizenship. If the legal bond of marriage is broken before you are granted your Permanent Residence, you will no longer be eligible to obtain it.
- My immigrant spouse has approved an employment-based immigrant petition (I-140) and my application for Permanent Residence (I-485) is pending approval. Will divorcing affect my ability to obtain Permanent Residency? Yes. You are considered a “derivative beneficiary” (or dependent on) your spouse. Your ability to obtain Permanent Residence depends on the existence of your relationship (marriage) with your spouse. If that relationship ends because of a divorce, it also ends your right to permanent residence through your spouse.
- I am currently a Conditional Permanent Resident (I am a Green Card holder), will my divorce affect my status? Conditional Green Cards are granted to immigrants whose marriages have not yet reached two years of seniority at the time permanent residence is granted. After two years of being granted Conditional Permanent Residence, the immigrant and his or her spouse must jointly submit an application to withdraw the conditions. But if you and the person you married are no longer together, as spouses, to file the joint petition, you could then opt for a waiver. This waiver is available in the event of termination of marriage, if the immigrant concerned can prove that (a) his or her marriage was contracted in good faith and, (b) it is not the fault of the immigrant concerned that the petition is not made jointly with his or her spouse, to withdraw the conditions. This is a legal procedure that requires specialized knowledge, so we always strongly recommend doing it with the help of an immigration attorney.
- I am a Lawful Permanent Resident (Green Card holder) currently, will divorce affect my status? No. If you have already been granted Permanent Residence without conditions, the divorce will not affect your immigration status.
- Will my divorce affect my ability to obtain U.S. citizenship? In a way. If your Permanent Residence was granted to you because you married a U.S. citizen, you can apply for U.S. citizenship three years after you obtained it, as long as you remain married. But, if your marriage ends legally, then you will have to wait five years, before you can apply for U.S. citizenship.
- Does a stepchild lose Permanent Residency obtained through his or her parent’s marriage to a U.S. citizen? No. In this case, even if the marriage that provided the basis for obtaining residency is dissolved, the child will maintain his or her status as long as the residency status is outside the conditional stage.
- I am a U.S. citizen who applied for and sponsored my spouse to obtain immigration benefits. Will divorce cause my obligations to cease? No. While divorce will terminate your marital obligations, your commitment to financial support for immigration purposes remains. Even after the dissolution of their marriage. The only events that can stop this commitment are any of these 3: (a) that the immigrant obtains citizenship, (b) that the immigrant has completed his 40 work rooms, or (c) by death. In view of these reasons, you may want to consider helping your spouse obtain U.S. citizenship during the divorce process.
- What should I do if it seems to me that a person married me solely to obtain immigration benefits? You may be able to get an annulment based on an allegation of marriage fraud. Any U.S. citizen should be aware that they could face criminal liability if they make a false accusation of marriage fraud. If you as an immigrant are the defendant, then you should defend yourself against any allegation of fraud that is intended to annul the marriage.
If you are going through a divorce process and you are an immigrant or your partner is, the best thing you can do is consult with an immigration attorney who is knowledgeable about the consequences of divorce on an immigrant’s status, as well as the obligations that weigh on your spouse. The immigration attorneys at Cardenas Law Firm, LLC know well how to help you and are willing to serve you. From our offices in Miami, Florida and York, Pennsylvania, we serve clients from all over the United States. Contact us today to schedule a consultation.