Know the Effects of Divorce or Separation on your Immigration Status
This article provides basic information about the effects of divorce or legal separation on one’s immigration status where a foreigner marries a US citizen (USC) or a legal permanent resident (LPR) and is given an immigrant benefit because of the marriage. Where a couple is contemplating divorce or separation, it is important for the foreign spouse to understand the impact a divorce or separation can have on his or her immigration status. It should also be pointed out that marriage to a USC does not automatically confer any type of immigration status on the foreign spouse.
Divorce decree obtained before Green Card:
Where a foreign spouse is attempting to obtain permanent residency through the sponsorship of his or her USC spouse or LPR spouse as a result of marriage to him or her and a divorce decree is granted before the foreign spouse has obtained a green card, then the foreign spouse cannot be granted the green card because the divorce has ended the legal marriage and the foreign spouse cannot be granted the green card based on marriage.
The same is true, where a divorce takes place prior to the adjustment approval, typically, the foreign spouse almost always finds himself or herself out of status, unless he or she maintained (typically L-1 or H-1B) non-immigrant status.
Divorce granted after foreign spouse receives Green Card:
- Where a divorce is granted after the foreign spouse obtains a green card (now called an immigrant spouse), the effect of a divorce is minimal and it does not change/ invalidate a granted green card where the immigrant spouse has been married to the USC for three years or more and has received an unconditional green card. However, the foreign spouse may have to wait 5 years (instead of being able to take advantage of the 3 year residency requirement where married to a USC) to apply for naturalization.
- Where a foreign spouse is married to the USC for a short time (two years or less) and a conditional green card has been granted, the implication is very different. The conditional permanent residence status is typically granted for two years and to attain full permanent resident status, the conditional resident must file a petition within the 90 day period with the USCIS before the conditional residency expires and this petition needs to be signed jointly by the USC spouse. At that time, if the spouses are still married, the immigrant spouse will receive a full permanent residence. Conversely, if a divorce decree has been obtained than the immigrant spouse’s conditional permanent resident status can be terminated and s/he can lose his/her immigrant status because divorce terminates the conditional permanent residency granted. In certain circumstances, a waiver can be granted. For instance, if the marriage was based on good faith and the couple have a child together or own property jointly, then it is possible for the foreign spouse to obtain a waiver.
Separation can mean either legal separation or physical separation. Physical separation i.e. spouses living apart, in general does not in itself constitute termination of the marriage for immigration purposes and a petition may not be denied merely because the couple cohabits separately. Legal separation, on the other hand, is a court order or a written agreement directing or authorizing the spouses to live separate and apart. Legal separation can constitute termination of marriage for immigration purposes and the USCIS may deny a green card in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the green-card.
If any of the above described situations is applicable to you or whether you are contemplating separation or divorce, it is recommended that you discuss your circumstances with an experienced immigration attorney who can help you understand the implications and guide you about your best options.