skip to Main Content
ID 100378113

How does divorce impact my immigration status?

 

 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.

Photo credit: Nenetus
Rate this post

Greg McLawsen

I’m proud to be the founder of Sound Immigration. My job is to work behind the scenes to ensure our clients have an outstanding experience at our firm. I’m passionate about reinventing the practice of law to make it work better for those we serve. I work hard to identify the best available technology to make our firm convenient for clients. I look to other industries, like real estate and the restaurant business, to learn about practice that will help serve our clients better.

This Post Has 24 Comments
  1. My friend came here on a k1 visa. Before he could get the conditionsame removed from his green card they split up. He went to the interview alone, the u.s. citizen wife refused to go. The officer took his card, and they sent him a letter terminating his case.
    What can he do now? They are still married but separated. Does he have to leave the usa? He’s been here for 6 years now.
    Thanks.

    1. Hi, Sonya: Unfortuantely, there’s no easy answer to that. It sounds like the K-1 adjustment case (green card application) is long gone at this point, so he would need to be assessed to determine whether there is another viable strategy.

  2. Hi,
    I have my conditional green card, i have till May to file for I751 to remove conditions.
    My spouse wants to apply for divorce in few weeks. If that happens i wont be able to apply for any waiver for I751 since the divorce wont be final in due time. He is also willing to file for I751 jointly with all the documentation included.
    My question is – Can we file jointly even though divorce is in process not yet final?? Because technically we are still married until we receive final divorce notice which wont be for 6months or so?
    And in case we file jointly while divorce in process, when we file I751 do i need to let USCIS know that divorce is in process??

    Please advise.

    1. Hi, Amy: If you file the I-751 with a pending divorce – and base your waiver petition on terminate marriage – then you will be issued a Request for Evidence with additional time to respond. One extension of this may also be possible. It’s crucial to have a good immigration lawyer working in conjunction with your family law counsel to ensure the divorce is timely completed so that the I-751 moves forward. Often you can get a final divorce decree even if there are still child support or property separation issues to resolve.

  3. I had my conditional green card interview on feb 8-17 , the officer separated my wife and I for questioning,it didn’t work very well but she said the case is being held for further review at least 120 days, and now our relationship got bad and she wanted to get divorced, my question is , if she does ; are uscis gonna cancel my green card even if they approved it or proceeds it ??
    Thanks

  4. I have been married for 18 months, i am yet to receive my conditional GC even though i had my interview in Dec of 2015. My marriage isn’t working as thought it would and every day in this marriage has been an emotional and mental torture. I want to file for divorce but i don’t know what will become of my status as all i have is Work permit. Please i need help. Thanks

    1. Hi, Kelly: You definitely need to speak to an attorney to be prepared to amend your I-751. You will need to be prepared to file it as a waiver petition, rather than a joint filing. Find more about those waivers here.

  5. I’ve been married to my wife for 14 months. We filed for adjustment of status and the pre-approval interview is in a week from now. She has refused to go for the interview for reasons best know to her. It’s imminent that I will file for a divorce and our application will be denied for abandonment. Will this jeopardize my chances if I get married to another person in future and file for adjustment of status?

    1. Hi, Olu: If the marriage was entered into in good faith there is actually still a non-zero chance that you could still get the application approved. Not good, but also not inherently impossible. It would be worth talking to an attorney to figure out if you have any chance of salvaging this application, instead of starting over.

      Broadly speaking, this will greatly increase the scrutiny of any near-future immigration-based adjustment application. Naturally, they will be suspicious of fraud issues. The marriage can be legally valid, but still subject to scrutiny of it’s authenticity.

  6. My foreign wife and I have been married for nearly 7 years. However, she just got a 10 year green card in October. I have decided that I want to divorce her. There are no children involved. We have just grown apart.

    I am concerned on how this will affect her ability to get permanent residency. I care about her and I would like for her to get her permanent residency.

    Can I divorce her now without seriously endangering her status? I do not want to do this, but I really want to move on with my life.

    1. Hi, Fred: If she has a 10-year I-551 (greencard) then she is already a lawful permanent resident. Once an individual has a 10-year card their status is no longer tied to marriage and the card can be renewed indefinitely without the assistance of the US citizen.

  7. I am on conditional PR.
    We were married 1 and half year ago and I got my conditional PR 1 year ago.
    Our relationship is not well now. We both don’t want be in this marriage.
    My wife(USC) took all his stuff and vacated our apartment last week when I was at work.
    Now we don’t have any communication. How can I make sure I can secure my Permanent PR?
    She also hinted me that she will quit her job to pursue education.
    Do, I need to end up paying alimony?

    We have lot of evidences showing ours is real marriage.
    Like lot of photos, air tickets to many destinations, rental documents, insurances.
    Lots and lots of email communications etc.

    If I apply for divorce, will that affect my chances of getting permanent PR?

    Please advice, I am in lot of stress and anxiety. I am in verge of loosing my job.
    I only have 1 more year of conditional pr.

    1. Hi, Sumit: Thanks for the question. Several important observations to share.

      1. Regarding this question, “If I apply for divorce, will that affect my chances of getting permanent PR?” Divorce is actually likely the best next step for your immigration strategy. See point two.

      2.You should get in gear ASAP to prepare for your I-751 waiver process (which must be initiated by the expiration date of your greencard). The easiest way to win these cases is usually to show good faith marriage *plus* termination of marriage. But to do that you need to have a finalized divorce decree. Depending on where you are, and the extent to which you spouse obstructs the process, you could need many months to complete the dissolution process. You should definitely talk to an immigration attorney ASAP to see if this is your best path forward. We do I-751 waivers all over the country and would be happy to meet with you.

      3. You should also be aware that you may have rights to financial compensation against your spouse. The form I-864 Affidavit of Support requires that your spouse ensure you have income at or above 125% of the Federal Poverty Guidelines. That support right does not depend on whether or not your spouse is employed. To learn more about that, visit the website of our partner law firm at http://www.i-864.net.

      4. Her right to alimony will depend on the law of your state. It has little if anything to do with immigration law, and isn’t our area of expertise.

      1. Thank you for your Prompt response.

        So, if I understood correctly.
        I can file a divorce and try to get it final and get a divorce decree.
        If so, can I easily get a waiver for my LPR, considering there is lot of legit documentation showing our marriage is legit. Will that be guaranteed? atleast most possible?

        If not, some how try to contact her and try to cope up with her till I get LPR?

  8. My spouse (USA) is not who i thought. He refuses to go to therephy for his p..n addiction. He says he likes that more….I have one more year before my conditional permit expires. My self esteem has decrease, I’ve gained weight, I’m miserable. But I don’t have a lot of documentation that it is a legit marriage. He doesn’t want our taxes to be filed together as his ex wife may beat him to claim their daughter and he doesn’t want to wait for my W2. Bills are paid by me but under his name. What can I do?

      1. Question is. Is it difficult to apply for the permanent residency if I get divorce? I don’t have a lot of documentation of our marriage being legit…..it is legit but all bills are under his name

        1. You must be married at the time of seeking adjustment of status, if you’re pursuing a marriage-sponsored case. If you are divorced before going through the process then you would assess whether you qualify under the Violence Against Women Act – these are for foreign nationals who are the victims of certain types of abuse.

          1. I received a probationary green card last January. I have one more year before I can get permanent but his use of p…n is making our marriage fall apart. How can I meet with someone to see what I qualify for. He refuses to seek help as he says it’s not something bad….I would like an evaluation on my case. Mt current immigration lawyer said to wait a year but I’m miserable.

  9. My husband of 6 months who is from Africa had field to divorce me a USA citizen and we never lived together . He has not applied for citizenship, will he be deported? He field the papers stating we were married on the 20th and seperated on the 21st

    1. Michele: It sounds like he never successfully completed the marriage-based immigration process. So unless he gained status some other way there is a risk he could be deported. But under current guidelines that is generally unlikely to happen unless he has multiple immigration law violations or has committed a crime.

  10. what if you find out 6 months after your spouse has been in the U.S. that they did only marry you to get here? Do I need an immigration attorney for divorce?

    1. Cortnie: There may be nothing you can do to undo the fact that you sponsored the individual. Certainly you should be consulting with family law attorney about your options. Often in these situations the faily law attorney will want to consult with an immigration attorney. I was actually doing that work for a client earlier this morning. (And yes, I know it’s Sunday…)

Leave a Reply

Your email address will not be published. Required fields are marked *

Back To Top