In cases where a married couple includes a non-U.S. citizen seeking or holding immigration status, legal issues concerning divorce and immigration can become intertwined. Here are some common questions and answers for such couples; as well as their children, if any.
A person who immigrates to the U.S. based on a marriage that is less than two years old at the time of admission to the U.S. (meaning approval for lawful permanent residence by USCIS or entry to the U.S. on an immigrant visa given out by the U.S. consulate) will receive what's called "conditional permanent resident status." This status is much like regular permanent residence, except that it lasts for only two years.
The purpose is basically to test the marriage. The U.S. government is hugely concerned with people entering into sham marriages in order to obtain permanent residence for the non-citizen, whether for a payment of money, based on friendship, or something else. Although every couple is asked for extensive documents proving that their marriage is real early on in the immigration process, the U.S. government knows that such things can be faked. It wants to see whether the couple can really uphold the possible fraud for another two years.
To attain full permanent residence status, the conditional resident will, within the 90 days before this two-year testing period is over, need to file a petition (USCIS Form I-751) with U.S. Citizenship and Immigration Services (USCIS).
Ideally this is done as a joint petition signed by both spouses, and including new documents and information showing that the marriage is ongoing. (Recently born children's birth certificates, for example, are an excellent form of proof. Even records of visiting a marriage counselor can help; couples trying to commit marriage fraud don't ordinarily seek out therapists to help save the relationship.)
After USCIS completes its review of the I-751 submission, the immigrant spouse will hopefully receive full permanent residence. The period of conditional residence will "count" as permanent residence when the immigrant later applies for U.S. citizenship, too. Of course, not all marriages make it long enough to file a joint petition, and often for reasons other than fraud.
USCIS does not view divorce as an automatic indicator that the marriage was a sham, though a divorce can definitely raise questions.
If the marriage ends in a final divorce before the I-751 petition is due, this is not necessarily the end of the immigrant's ability to stay in the United States. When filing the I-751, however, the immigrant spouse will need to ask USCIS for a "waiver" of the joint filing requirement and include evidence that the marriage was bona fide (not a sham) when entered into.
If divorce proceedings are ongoing when the I-751 is due, and the U.S. citizen refuses to sign a joint petition, the timing issues can get complex. There are ways to finesse this with USCIS, essentially to ask for more time to obtain a final divorce decree, but you'll want to hire a lawyer for help.
In the worse-case scenario, the immigrant could lose immigrant status and become deportable from the United States. For more information, see How Can I Protect My Immigration Status in a Divorce If I'm Still a Conditional Resident?.
For the most part, the status of the immigrant's children, if they were included on the parent's application, will track that of the parent after a divorce. If the divorce takes place before the I-130 is approved by USCIS, everyone loses out.
If the divorce takes place when the parent has received approval as a conditional resident, the children would have gotten conditional residence at the same time. If the parent decides to file an I-751 with a waiver request, the children can be named on that petition and be approved (or denied) at the same time.
Even if the parent were to decide to drop the matter and give up on immigrating to the U.S., the children could separately file Forms I-751 asking for the same waiver and to receive permanent residence. But they, like the parent, would need to provide evidence that the parent's marriage was bona fide in the first place. See Filing Form I-751 as Conditional Resident Child of Divorcing Parents for details.
Or, there are other waivers a child could apply for as part of submitting Form I-751. One is for children who have been battered or subject to extreme cruelty by one of their parents during the time the two were married. The other is to prove that having to go back to the home country would cause "extreme hardship."
If the children have already been approved for U.S. permanent residence at the time the divorce takes place, their status will be unaffected by the divorce (unless there was fraud involved, in which case everyone could be placed into removal proceedings).
If you are a U.S. citizen or lawful permanent resident who petitioned for your non-citizen spouse to immigrate, but the marriage is ending, you might need to act quickly to avoid having to support your ex for years to come.
A family petitioner like you who signs an affidavit of support (USCIS Form I-864) for the spouse, as is required in all family-based immigration cases accepts legal responsibility for providing financial support until one of four things happen:
Divorce, as you will notice, is not on that list. Indeed, divorce does not terminate your financial responsibilities toward your immigrant spouse, as described in Does I-864 Really Force Me to Support Immigrant Ex-Spouse Who Has Plenty of Money or Can Work?.
Whether you will be on the hook for financial support depends on whether your Affidavit has already been submitted to the U.S. government, and on whether your spouses' application for permanent residence ultimately gets approved. If it's still early in the process, you should write to USCIS to withdraw your I-130 Petition for Alien Relative as soon as possible, then refuse to supply the I-864 and any other requested documents, so that final green-card approval does not go through.
If, however, all application materials are in and your foreign-born spouse has already been approved for conditional or permanent residence, it's probably too late to back out. The only way USCIS is likely to undo your spouse's grant of a green card, and therefore your support obligation, is if it was obtained through fraud. But if that's the case, you might also be implicated in the scheme, and could face penalties.
See What If I Change My Mind About Petitioning for My Family Member to Immigrate? for more on these issues.
Again, a divorce is not automatically viewed as a sign of immigration marriage fraud. Plenty of truly married couples argue or see their marriage collapse, despite their earlier plans and hopes. Whether someone immigrating through marriage can obtain or keep their green card after a divorce depends on how far along they are in the immigration application process.
If the I-130 immigrant petition is still pending before USCIS, the agency ultimately won't approve it, assuming the U.S. petitioner writes in to advise of the situation and withdraw the petition. Or, if the I-130 has already been approved but the case is awaiting an interview at a U.S. consulate or at a USCIS office within the United States, the government officials handling the case will ask enough questions to uncover the divorce and deny the case at that time.
If the immigrant spouse is living in the U.S. with no other legal immigration status at the time of the denial, USCIS is likely to issue a Notice to Appear (NTA). This will initiate removal (deportation) proceedings in immigration court.
If the immigrant was already a conditional resident when the marriage ended in divorce, see the previous discussion.
If the immigrant is already a permanent resident when the marriage ends, divorce will have no effect on the person's immigration status. However, if and when the person applies for naturalized U.S. citizenship, USCIS could take another look at whether the marriage was real in the first place, as described next.
Some years after obtaining a green card, the immigrant can apply for naturalized U.S. citizenship. This could go smoothly or not.
For starters, exactly how long the immigrant needs to wait before applying for U.S. citizenship could be affected by the divorce. An immigrant who is married to and living with a U.S. citizen enjoys a special privilege. That person needs to wait only three years before applying for U.S. citizenship, instead of meeting the usual five-year residency requirement.
In order to benefit from this three-year eligibility period, though, the immigrant will need to stay married and living with the U.S. citizen for the entire three years, all the way up to the time of being approved for U.S. citizenship. If a divorce occurs first, the immigrant will have to accrue a full five years of permanent residence before becoming eligible to apply for U.S. citizenship.
The second possible issue concerns whether the divorce raises questions about whether the marriage was real in the first place. During the naturalization interview, the USCIS officer might ask about what went wrong with the marriage. If, for instance, the immigrant has remarried, and it turns out the relationship with the new spouse predated the marriage to the U.S. spouse, that could be a red flag indicating possible marriage fraud.
The USCIS officer might choose not to make a decision on the immigrant's citizenship the day of the interview. Instead, it's common for an officer who has questions about the marriage issue to require the person to submit additional documentary evidence showing that the marriage was entered into in good faith, with the intention of joining the couple's lives. For more on how to do this, see Can I Apply for Citizenship If I've Divorced the Person Who Got Me My Green Card?.
If you married someone whom you later come to suspect was merely using you as a path to a U.S. green card, you might want to file a tip with USCIS or Immigration and Customs Enforcement (ICE). The U.S. government has the power to initiate an investigation and ultimately place the immigrant in deportation (removal) proceedings. With fraud on record, your (presumably ex-) spouse would likely never again be able to receive a U.S. visa or green card.
Think carefully before taking this step, however. In particular, consider whether USCIS or ICE might have grounds upon which to suspect that you were complicit in the sham marriage. You would not want to file a tip only to become the target of an investigation. If it goes the wrong way, you could conceivably face fines and other criminal penalties. (See Penalties for Committing Immigration Marriage Fraud and Immigration and Nationality Act § 275(c), 8 U.S. Code § 1325(c).)
Also consider whether you have enough convincing evidence to convince the government to follow up on your tip. They receive lots of these tips, and many in the past have turned out to be attempts at revenge by U.S. citizens or residents who felt betrayed after a marriage fell apart; even if the marriage truly was entered into in good faith on both sides.
Still, a possible reason to file such a tip is that, in order to get your spouse's initial green card application approved, you had to sign a Form I-864, Affidavit of Support promising to financially maintain your non-citizen spouse. It is legally unclear whether you, as a duped spouse, could successfully argue that your responsibility under the I-864 should be ended. As mentioned earlier, divorce by itself will not terminate a petitioner's obligations under the Affidavit of Support. However, these obligations would definitely end if your ex were to lose the green card and leave (or be deported from) the United States. See The U.S. Sponsor's Financial Responsibilities for more on this.
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