What You Need to Know About Divorce in the Middle of the Immigration Process

For some couples, the divorce process and the United States immigration process can occur simultaneously, which could cause worries about citizenship status. Here’s what you need to know about how divorce can affect the immigration process.

If one spouse is dependent on the other for American citizenship, divorce could potentially affect the non-citizen spouse’s legal status if they are a conditional resident, or depending on their spouse’s visa status.

How Divorce Could Affect Conditional Residents

A conditional resident is a foreign national who is granted permanent resident status in the United States based on a condition, such as if they are married to a United States citizen. In the case of a divorce, a conditional resident could be at risk of losing their citizenship because the condition in which they are living in the United States is their spouse.

In order to transition from a conditional resident into a permanent resident based on marriage to a U.S. citizen, one must show that their marriage was in good faith. Green cards given to conditional residents last two years, and must petition to have their “conditions” of residence removed before their green card expires.

Usually, couples petition together (with Form I-751) and include documents that prove that they are still married. However, if the couple already got a divorce, the non-U.S. citizen spouse can fill out a waiver to petition for citizenship alone. They must still prove that their marriage was in “good faith,” and that if the couple hadn’t gotten divorced, that they had planned to live together as a married couple. They can prove this through things like a joint bank statement or joint lease.

How Divorce Could Affect Dependents on their Spouse’s Visa Status

Divorce may also affect one’s status if they are listed as a dependent on their spouse’s visa status. For example, if one spouse holds an H1B visa, which allows foreign national workers to work in the United States at American companies, and their status application priority date is not yet current, a divorce could disqualify the other spouse as a dependent, making them ineligible to obtain a green card when the priority date becomes current.

Related: How Divorce Affects Immigration Status

What are Alternatives to Divorce that Could Preserve Immigration Status?

Because of the effect legal divorce can have on the immigration process, it may be in the couple’s best interest to consider alternatives to divorce, such as a legal separation.

A legal separation does not end a marriage, but still provides orders on things like custody and visitation, child support, and property division. To get a legal separation in California, one or both spouses must be living in California at the time. Some couples may have the option to, over a certain amount of time and after meeting certain requirements, transition their legal separation into a divorce.

Related: Legal Separation Laws in California: The Basics

If you are considering getting a legal separation to preserve immigration status during the immigration process, it is encouraged to speak with a lawyer who can best understand your specific situation and advise you accordingly.

Related: How Divorce and Remarriage Affect Immigration

FAQs

Where can I find Form I-751?

You can find it online on the U.S. Citizenship and Immigration Services website or at this link.

What if I’m already a permanent resident when I’m getting divorced?

If you’re already a permanent resident and have a green card, divorce should not affect your immigration status.

What if my spouse tries to prove that our marriage was not in good faith, in order to make it harder for me to become a U.S. citizen?

To prove that your marriage was in good faith (and wasn’t just a way to circumvent immigration laws), you must show that if not for your divorce, you and your spouse planned to live together as a normal married couple. This can be shown through things like joint credit cards or a joint bank account.

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If you have any more questions about how divorce can affect the immigration process, contact us. Get your free consultation with one of our experienced immigration attorneys today!