skip to Main Content
How Does Divorce Impact My Immigration Status?

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
How does divorce impact my immigration status?
5 (100%) 1 vote

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 50 Comments
  1. I husband recently received IR1 visa otherwise known as I-130, he arrived in the USA 4 month ago and has not yet been to where I am, if i divorce him now will it affect his future in the USA.?

    1. Hi, Mary. Sorry to hear about the situation. (Technically, the I-130 was the petition you filed to secure the IR-1 status for your husband). As long as he is not a conditional resident (CR-1 with a two year card) then no – if you get divorced he remains a resident. Let us know if that answers the questions.

  2. My spouse and I recently finialized our divorce. My spouse came to the use on a Spousal visa in 2014 and we seperated in 2015. He returned to his forgien country for 4 months and he returned on his own accord. (we have two children together and I have full custody) I did not apply for the conditional status on his green card to be removed and the two years have lapsed. We did not live together when he moved back. He moved in with another woman shortly after returning to the states. Will his visa with me still be valid and can stay in the country or will he have to re-apply with his new girlfirned once/if they decide to get married? Can I send my divorce decree into USCIS ? I want distant myself legally from this man as mush as possible. Thanks

      1. It was on the same conditional resident visa. he has a green card. Bi the time lapsed for two years to update from conditional to permanant status. The divorce had not been finialized. It’s finialized now and he has anew girlfriend and hasn’t applies for a new visa that I am aware of

  3. MY WIFE AND I GOT MARRIED BY SEP 15 2015. WE APPLIED TO ADJUST MY STATUS AND WE WERE CALLED FOR AN INTERVIEW. WE WENT TO THE INTERVIEW AND I RECEIVED MY CONDITIONAL 2 YEARS GREEN CARD. AFTER THAT BY FEB 22 2017 SHE APPLIED FOR A DIVORCE. WE STILL DID NOT APPLY FOR THE UNCONDITIONAL GREEN CARD. DOES THAT AFFECT MY CASE?? DOES IT FORBID ME OF APPLYING AND ADJUSTING MY STATUS?? SHE WENT AND GOT MARRIED WITH ANOTHER MAN NOW.

  4. Hello,

    My sister got married to a US Citizen while she was visiting US on her B1/B2 Visa in early 2016. They subsequently filed for Green Card after the wedding in November 2016, with the interview being due still. Due to irreparable discord between her and her husband, they decided that they wanted a divorce in August 2017. So it’s been more than 12 months of stay in the US for her. So if she gets divorced and comes back home, would it affect her chances of going back to the US again. She is a doctor who wants to pursue a career in the USA. How should we proceed further?

    1. Hi, Ahmed. Your sister should definitely talk to a lawyer before taking any action. If she was in undocumented status for 6 months and departs the US she is forbidden for returning to the states for 3 years. If it was 12 months of unlawful presence then she is barred for ten years. The pending adjustment application may prevent this result, but it also appears that the adjustment application is likely to be denied (that will depend on what’s happening once the matter is set for interview). THis is a situation where she needs careful, individualized advice *before* decisions are made and actions taken.

  5. I wanna ask about the period that I need to have a us passport after marriage im coming to the US next December 2017 and will start the process asap .. any ideas 🙂

  6. My husband and i have been separated for 3 months and getting divorced soon in maryland due to his infidelity. he filed i-130 for me but i’m withdrawing it. I recently met someone and who knows, i might get remarried. how would my previous marriage affect my Adjustment of Status process which would be filed by 2nd spouse

    1. This scenario could lead to concerns about marriage visa fraud. You’ll want to talk to an attorney about the details of the scenario. Then – assuming you can continue – they will need to take care in the second 485 application to document why fraud is not present. Tred carefully with this.

      1. Thanks for your advice. I would be seeing a lawyer soon. however, what are some of the things i need to prove that it was a bonafide marriage. My soon to be ex husband and i have car insurance in both of our names, we have a both a credit and checking/Savings account also in our names and lots of pictures. Does this help?

  7. Good Morning
    I am US citizen and I petitioned my wife to come to the USA with her two children. They came to the USA in 12/2014. Shortly after arrived to USA, she began to see other men and abandoned the home. She lived in the house for four months. I learned that all she wanted is to get the green card and no being seriously in the marriage. We have one daughter (US Citizen) and the child is leaving permanently and legally with full custody with me. presently, she is expecting another child from another man.I filed for divorce last year before their conditional permanent resident was expired. I informed the immigration to removed the petition for their permanent green card and I am not going to continue to be part for the process their permanent card. I learned that she did submit the application for the permanent resident after I filed for the divorce.
    Would their got the permanent green card when I informed the immigration that I am not longer part of the process?

    1. Hi, Leonardo. At the conclusion of the two-year conditional residency period the foreign national has to file an I-751 petition to remove the conditions on her status. If the US citizen sponsor does not participate in the process, the foreign national can still go forward based on one of the “waiver” grounds. (Learn more here). The US citizen’s consent is not required to file a Form I-751 waiver, and attempting to withdraw support would have no consequence with respect to an I-751 waiver (except that USCIS can consider the withdrawal request as evidence when adjudicating the I-751).

  8. Hello,
    My fiance (a naturalized US citizen through the green card lottery), was previously married and petitioned for his foreign based wife. They got divorced 3 years ago. Now we are planning to get married and he plans to petition for me as well. Will his previous marriage and petition hurt my chances of getting a green card? I currently reside in the US.
    Thanks

    1. Hi, Amanada: A previous divorce doesn’t automatically hurt a subsequent petition. But multiple petitions can lead to concerns about fraud in some circumstances. You would want someone to assess the history carefully before you move forward.

      1. I get married to a usc, in 2015 June I file for aos in September 2016 from then I don’t here fr immigration ,all my website say Shudle for an interview

        1. Hi, Sophia. We would usually expect for an immediate relative 245(A) adjustment to be scheduled within a year. But we don’t know the history of your case. If your case involves a waiver or had RFEs that could easily put it past the one-year mark.

  9. Good Afternoon, I have a question,
    My husband and I got married back on August of 2017, I got the conditional, now I am on a extension that expires on Feb of 2018, we applied to remove conditions back on Dec of 2015 which was 3 months before the conditional expires, went for the bio metrics on Jan of 2016 and never got anything until Dec of 2016, we got a letter requesting more evidence, my husband lost the letter and requested a new one because we were supposed to send the evidence along with the letter, so waited to get the new one but sent everything together by March 1st, which was 2 days after the deadline to send evidence (by this time we were having a really hard time in our marriage because my husband was unfaithful, he left the house a couple of times, our situation has not got any better, he sometimes comes home and sometimes sleeps somewhere else and I don’t know what to do because now we just got a letter a week ago that says ‘I-751 REMOVAL OF CONDITIONAL STATUS INTERVIEW”. He does not even care because he said we can do whatever I want, either go together and tell them the truth that things are not working out, or go by myself and tell them the truth, or get divorce. I really don’t know what to do I am frustrated, my interview is in 2 weeks. what should I do?. Also on a side note , somewhere last year when we got into and argument and he left for a month for the first time, he changed the address on his driver’s licence, is that going to be a problem as well?
    Please help
    thank you

    1. Hi, Andrea. That’s an extremely difficult. If your husband is withdrawing support for your petition then you will need to be prepared to amend the I-751 to be re-filed as a “waiver” petition. There are multiple waiver grounds, including abust by the US citizen petitioner. You should get a lawyer to advise you on that ASAP so that you’ll be prepared for the interview.

  10. My niece applied for I 130 to come to her mom to US. She was single at that time. While waiting for her papers, she got married for over 3 years. The marriage didn’t work out and she divorced last year. This year she was notified to go for the interview to the embassy. Is that marriage going to affect her coming?

    1. Generally a parent’s marriage – and subsequent divorce – would not impact a case like this. But she should be sure to update here visa application so that it is accurate.

  11. Hello, back in 1998 I married my fiance but the marriage was not consummated. Immediately I left and the reason was I finally came out (Gay). The only process we did was to get marry and nothing else, right after that I realized this is not what I want it and I left and never so her again. I found out that she filed for divorced in 2002 and re-married someone else. Today I’m in the process of filling a K1 to bring home with me the person that I’m in love with and we are engaged (same sex partner). Would the previous marriage affect my K1 fiance petition? This week I’m going to pick up from the court my copy of divorce certificate, would that be sufficient proof that my previous marriage ended and would it be necessary to provide a cover letter to explain the reason why I did not proceeded with the process after we got married? Thanks

    1. Hi, Julio ~

      The main thing that comes up in these scenarios is that USCIS/DOS may question the bona fides of the current relationship. Where a same-sex petitioner was previously in a heterosexual relationship/marriage, that can lead USCIS/DOS to question whether the current homosexual relationship is “real.” Now, for those in the LGBT community and their allies, we know that this scenario is actually very common. It doesn’t mean that the current relationship isn’t real, since there are plenty of reasons why a gay person might have had a heterosexual relationship earlier in life. But I just raise the issue to note that you should be prepared for that sort of push-back. You’ll want to do an outstanding job documenting the bona fides of the current relationship. Let us know if you want help.

  12. 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.

  13. 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.

  14. 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

  15. 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.

  16. 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.

  17. 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.

  18. 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?

  19. 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.

  20. 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.

  21. 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…)

Comments are closed.

Back To Top