In some cases, a divorce may be affected by immigration. Here are some common questions and answers.
A person who immigrates to the U.S. based on a marriage that is less than two years old at the time of his/her admission will receive conditional permanent residence status. This status lasts for two years. To attain full permanent residence status, the conditional resident must file a petition with the U.S. Citizenship and Immigration Services (USCIS) prior to the second anniversary of his/her admission as an immigrant. At that time, if the marriage is still intact, the immigrant spouse will receive a full permanent residence. Conversely, if the marriage is dissolved, the immigrant spouse will lose his/her immigrant status and become deportable.
If you sponsor your spouse’s immigration application and the marriage is ending, you should withdraw your sponsorship promptly because through sponsorship you have assumed the responsibilities of supporting your spouse and his and her dependents. When a person signs an affidavit of support, he or she accepts legal responsibility for financially supporting the sponsored immigrant(s) until he or she becomes U.S. citizens. However, divorce does not necessarily terminate your financial responsibilities toward your immigrant spouse before he or she becomes a U.S. citizen unless he or she leaves the United States. A spouse-sponsor should withdraw any Petition for Alien Relatives and the Affidavit of Support as soon as possible if divorce proceedings are imminent.
When an immigration application that is based on marriage is pending before the USCIS, an immigrant spouse will be considered out-of-status upon the dissolution of the marriage. There is also a strong possibility that the alien spouse could be subject to removal proceedings after the divorce case is finished. A person who immigrates to the United States based on a marriage that is less than two years old at the time of his/her admission will receive conditional permanent residence. If the marriage is still intact at the second anniversary, then the immigrant spouse will receive a full permanent residence. Meanwhile, if the marriage ends in divorce, then the immigrant spouse will lose his/her immigrant status and become deportable. Where the qualifying marriage has ended in divorce or annulment during the two-year conditional residency period, the conditional resident may apply for a waiver of the joint filing requirement based on the parties’ good faith when they entered into the marriage.
Learn more about Family Based Immigration.
Conditional resident status is conferred on an alien to the United States or a lawful permanent resident in a marriage that is deemed bona fide and that is less than two years old. The status is conditional for another two years. If the marriage lasts more than two years, then the alien can be approved for lawful permanent status without any condition. The U.S. citizen may petition for his or her alien spouse to receive an immigrant visa. An alien with an approved immigrant visa petition may be issued an immigrant visa by a U.S. consular post abroad and use the visa to be admitted to the U.S. as a permanent resident. Also, some aliens already in the U.S. may use an approved immigration visa to petition to gain permanent resident status through an adjustment inside the U.S. The USCIS will interview the couple to determine the bona fides of the marriage. Conditional resident status becomes permanent after the second anniversary of the residence status if the alien and the petitioning spouse jointly file an I-751 petition that is signed by both parties. This is filed within ninety days of the second anniversary of the granting of conditional resident alien status. Thereafter, they are interviewed by a USCIS examiner to see if their marriage is legitimate.
If an alien spouse is a conditional alien resident for at least two years, then he or she will not need their spouse’s assistance to process the I-751 petition. If the marriage is shorter than two years, then the alien spouse can request a waiver. The waiver can be based on one or more of the following grounds: extreme hardship if deported, termination of a good faith marriage, or battered spouse or child ground. The good faith waiver requires that the qualifying marriage was entered into in good faith by the alien spouse, that the alien was not at fault in failing to meet the requirement of filing the joint petition, and that the qualifying marriage was terminated other than by the death of the petitioning spouse.
Aliens who obtain their permanent residence based on their relationship with a U.S. citizen spouse or an alien parent's U.S. citizen spouse are granted conditional permanent residence if the qualifying marriage took place within two years prior to the date permanent residence was conferred. Conditional permanent residence means that the permanent residence is subject to termination if it is found that the qualifying marriage was a sham marriage or a marriage that was entered into only for purposes of obtaining an immigration benefit. Other than the conditional permanent resident being subject to having his status terminated, he is afforded the same rights as is any other permanent resident. Within ninety days before the two-year anniversary of the permanent residence being granted to the alien, the alien and spouse must apply to have the condition removed. The general rule is that divorce terminates the conditional permanent residence. Nevertheless, in this scenario, it is possible for the alien to obtain a waiver of the termination if the conditional permanent resident can show that the marriage was entered into in good faith, it is presumed that he was not at fault for failing to file a joint petition. Two ways to show that a marriage was entered into in good faith are proving that the couple had a child together and producing evidence that the couple owned property jointly.
Divorce does not adversely affect an alien's immigration status after the alien obtains permanent residence unconditionally. The only effect divorce may have on an alien at this stage is that it may delay obtaining citizenship. If a permanent resident is married to a U.S. citizen, he has a three-year residency requirement for U.S. citizenship as opposed to a five-year residency requirement. In order to benefit from the shorter residency requirement, the alien must be married to the U.S. citizen for at least three years prior to the exam date. Therefore, if the alien is divorced before being married to a U.S. citizen for at least three years before his exam date, and if he has not been a permanent resident for five years, he will have to wait until he has been a permanent resident for five years before he is eligible to apply for U.S. citizenship.
An allegation of marriage fraud may be made to obtain an annulment by the spouse of an alien who gained legal resident status through marriage. It is very important for an alien spouse to vigorously contest an annulment based on fraud. Note that a U.S. citizen could face criminal liability for a false marriage fraud allegation.
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