Many individuals get their immigration status in the U.S. through marriage. What happens if such a person gets divorced from their spouse? The consequences depend on the situation.
What happens if I get divorced when my spouse is petitioning for my permanent residence?
If parties divorce during the immigration process this will generally prevent the foreign spouse from becoming a permanent resident. If USCIS learns of the divorce before approving the I-130 petition, the petition will be revoked. Revocation of the petition is not automatic, however. It is possible – though unlikely – that the foreign national could complete the residency application process post-divorce. This would be exceedingly unlikely if the residency application was made while in the U.S. (termed adjustment of status), as the U.S. spouse will be required to attend a pre-approval interview. Because U.S. spouses do not attend visa interviews at consular posts, however, a foreign national could complete a marriage-based visa interview before the consulate learned of a divorce.
Should a foreign spouse manage to acquire marriage-based permanent marriage following divorce she may be subject to financial penalty. The spouse would almost certainly have committed fraud for purpose of the immigration statute, and could be subject to recession proceedings to revoke her residence status. Yet it is important to note that revocation of residence would not happen automatically, requiring legal proceedings initiated by USCIS.
A foreign spouse is not necessarily without options if divorce occurs before she acquires residence. If subjected to abuse by the U.S. spouse, the foreign national may be eligible to “self-petition” under the Violence Against Women Act (VAWA). Likewise, a child subject to abuse by the U.S. spouse may also self-petition under VAWA. These petitions do not require that the U.S. spouse have been charged or convicted of an offense. Rather, the self-petitioner may use any credible evidence to prove up her claim of abuse.
What if I get divorced during my 2-year conditional residency (2-year green card)?
An individual who has secured U.S. permanent residency based on a short-term marriage is given a form of probationary status. For a couple dissolving their marriage, “conditional” permanent residency has implications for both spouses. A foreign spouse with conditional permanent residence is in a precarious situation once separated from her U.S. spouse, and divorce threatens her ability to maintain residence.
In the 90-day period prior to the two-year anniversary of her conditional status, the foreign spouse is required to file the Form I-751 Petition to Remove Conditions of Residence. The Form does not specifically require that the conditional resident be currently residing with her U.S. spouse, but the petition must be jointly executed by both parties. If not jointly executed, the foreign spouse must seek a waiver of the joint filing requirement (read more).
A U.S. spouse could agree to jointly execute the I-751 petition despite being separated from his foreign spouse. This is not unusual where the parties hope to reconcile, or where the separation is amical and the U.S. citizen/resident wishes for his spouse to maintain immigration status. The U.S. spouse should expect to appear to receive a notice of interview for the I-751 petition, and his attendance will be mandatory. For a properly documented petition, the foreign spouse will want to submit joint records of the parties to demonstrate the bona fides of their relationship.
What if I get divorced and I am on non-immigrant a (temporary) status?
Generally, divorce automatically terminates the legal status of a foreign national with a marriage-based temporary (non-immigrant) visa. If the foreign national’s status was derived from marriage to a primary visa holder, the status ends by operation of law at the time of divorce. Prior to divorce, the foreign spouse will need to apply for a different visa status, if she is eligible for one. Whether or not the foreign spouse would be eligible for any status is highly fact dependent, but is by no means a foregone conclusion. In many scenarios the foreign spouse will have no means of maintaining status and will need to depart the U.S.
What if we are separated but not divorced?
Physical or legal separation – as distinct from divorce – generally does not by itself impact the immigration status of a foreign spouse. The chief impact of separation is that it may call into questions the bona fides of a marital relationship that formed the basis for an immigration status.
A foreign spouse who has acquired unconditional permanent residence based on a marriage will not lose such status if separated from her U.S. spouse. Such status is held by the individual for life, unless voluntarily relinquished or involuntarily ended. No additional application is needed for the individual to maintain her residence status. The individual’s residence card (“green card”) must be renewed every 10 years by filing the Form I-90, but this submission does not require the foreign spouse to disclose information about the status of her marital relationship. Additionally, it should be noted that the individual continues to hold legal status as a resident even past the validity date of her residence card – the legal status is distinct from the validity of the card, which is merely proof of the legal status.
While separation does not by itself terminate permanent residence status, it does lengthen the time the foreign spouse must wait to apply for naturalization. A permanent resident who acquired status through marriage may generally apply in three, rather than five years after becoming a resident. Yet in order to take advantage of the expedited path to U.S. citizenship, the resident must have resided “in marital union” with the U.S. spouse for at least three years. This distinction should be important to a matrimonial lawyer representing the U.S. spouse, as she is incentivized to see the foreign spouse become a U.S. citizen as soon as possible. Once the foreign spouse acquires citizenship, the financial obligations of the Affidavit of Support are automatically terminated. If a U.S. spouse is considering separation in the time leading up to the three-year anniversary of permanent residence, he should be made aware that doing so will delay by two years his partner’s eligibility to apply for naturalization.
Foreign nationals on temporary immigration status typically maintain that status in the event of separation from their U.S. spouse. The spouse of an H-1B skilled worker for example – designated an H-4 “derivative” – retains her status following separation. Nonetheless, a spouse in temporary immigration status will be unable to renew her status without cooperation from the primary visa-holding spouse.