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How Will Divorce or Separation Affect My Lawful Status?
Regardless of whether you are in the United States in lawful immigrant or nonimmigrant visa status, a pending divorce or separation may affect your lawful status and future ability to remain in the U.S. in lawful status if your status is derived from your spouse whose application for an immigrant/non-immigrant visa was granted. Thus, the question of whether and when to pursue a divorce or separation in the event that you and your spouse are experiencing marital difficulties is one that deserves careful consideration. This article is intended to help you weigh your options.
When would a divorce or separation affect my legal status?
Your legal status may be affected by a divorce or marriage if you are a conditional resident. You are considered a conditional resident if you immigrated through your spouse within two (2) years of the date of marriage. Thus, if within two (2) years of marrying a U.S. citizen spouse or lawful permanent resident, and you (1) enter the U.S. after consular processing, or (2) adjust status within the U.S., then you are a conditional resident. If you are not certain of your status, please [contact an experienced immigration attorney] (Insert hyperlink to web page).
A divorce or separation may affect a conditional resident's status because conditional residents are required to submit Form I-751 Petition to Remove Conditions of Residence during the 90 day period before the two-year anniversary of the date the immigrant spouse received conditional residency. The two-year anniversary date will appear as the "Card Expires" date on the residency card ("green card").
Your legal status may also be affected by a divorce or separation if you are dependent on your spouse's current visa and/or pending applications. For example, if you are married to an H1B visa holder, and s/he has an approved adjustment of status application, but the priority date is not yet current, a divorce or separation may disqualify you as a "dependent" and you may not be able to obtain a green card once the priority date becomes current.
What is the difference between divorce and separation?
For purposes of obtaining immigration benefits as a dependent spouse, it is critical to understand the difference between divorce and separation. Divorce is the legal termination of your marriage by a court. Separation, on the other hand, usually allows a couple to remain legally married and, at the same time, live separate lives.
While the concepts of divorce and separation seem clear cut, they are not. This is because whether a person is divorced or separated is controlled by State law. Thus, in some states there is an absolute divorce versus a limited divorce. Other states recognize and distinguish between a spouse's rights and privileges under an informal separation versus a formal separation. In some states, a formal separation may become a divorce by the mere passage of time.
To further complicate matters, and regardless of the parties' intent when they entered into a separation agreement or limited divorce, the U.S. Citizenship and Immigration Service (USCIS) and/or Board of Immigration Appeals (BIA), gets to interpret the State law and determine whether or not the separation or divorce did in fact terminate the marriage.
This complex interplay between State law and Federal immigration law makes it all that more important to consult with an experienced attorney who has a comprehensive understanding of [family/divorce/domestic law and the impact on your immigration status] (insert hyperlink to web page).
How could divorce or separation affect my immigration status?
The answer will depend on your spouse's status and, under the immigration laws, what immigration benefit was conferred to you, how, and when status is conferred.
For the purpose of this discussion, we will consider the case of the conditional resident, who has to file the I-751 Petition to Remove Conditions of Residence. Although a conditional resident's status was conferred at the time of the marriage that status was granted only for a 2-year period. In order for the conditional resident to become a "full fledged" lawful permanent resident, anytime in the 90 days before the conditional residence expires, the conditional resident and his/her spouse have to file the I-751 jointly with supporting documents proving that they are still married.
However, as 40% of marriages in the U.S. end in divorce, our conditional resident clients face the same dilemma with the added stress of having to deal with the possible immigration consequences. How to mitigate the immigrations consequences, if any, of a pending or possible divorce will depend many factors including where the parties are in the divorce/separation process and the immigrant's status.
For instance, if the conditional resident has already had their marriage to the U.S. or lawful permanent resident spouse legally terminated under State law, then s/he would file the I-751 without the support of the U.S. or lawful permanent resident spouse by filing a waiver. Although a divorce may make it more difficult to remove the conditions of residence, it is not impossible if the conditional resident can demonstrate that s/he had entered into the marriage in "good faith" – that is to say that s/he intended to live together with the spouse as husband/wife at the time they entered into the marriage. Just because the marriage ended in divorce does not change the parties' intent at the time they got married. To demonstrate a good faith marriage, the conditional resident may submit documents which show that the parties shared a typical married life together. This may include having a joint lease, joint bank account, joint credit cards, and coverage under the same auto and health insurance providers.
In cases in which the immigrant spouse has a green card and has already been granted lawful permanent resident status, divorce should not have an effect on the spouse's legal status in the United States. It may, however, require the immigrant spouse to wait longer to apply for naturalization, generally five years rather than three.
Lastly, and perhaps the most difficult situation, may be where the conditional resident and/or his/her spouse is thinking about or in the process of separating and/or has filed for divorce. There isn't one correct answer to such a situation. Rather, devising a successful strategy to minimize any possible immigration consequences is fact dependent and will include an assessment of the relevant State family law, the nature of the parties' relationship, where the parties are in the separation or divorce process, whether the parties are living together or apart, and if there has been any abuse in the relationship. Depending on these factors, it may be advisable for the get divorced as quickly as possible or to delay the divorce/separation as long as possible.
Contact an experienced Columbia, Maryland immigration attorney
To avoid any unintended consequences your family/domestic/divorce matter may have on your immigration status, it is crucial that your attorney understands the complex interplay between State family/domestic/divorce law and Federal immigration law. Contact our offices to speak with a qualified Maryland family-immigration lawyer with experience handling cases similar to yours and who can help you understand your options and can advise you on the best course of action.
Categories: Immigration Law
