What You Need to Know About Divorcing an Immigrant Spouse
The divorce process becomes more difficult when your spouse is an immigrant. Here’s what you need to know about divorcing an immigrant spouse.
Divorcing an immigrant spouse sponsored through marriage can negatively impact their status. An immigrant spouse who holds a conditional green card might be deported unless both spouses file a petition for a permanent green card. Divorce settlements, such as child support, are internationally recognized and enforced through international agreements.
The Complexity of Divorcing an Immigrant
The filing and court process of a divorce to an immigrant remains the same as divorcing an American citizen. However, divorcing an immigrant spouse can affect their residence status and cause potential issues in marital settlements.
A divorced immigrant who has American residency through marriage may experience a delayed citizenship process, such as a three year waiting period versus the traditional five year waiting period. Spouses immigrate to the United States with a two year conditional green card. Conditions can be removed following the waiting period. Proving the marriage was entered in good faith is difficult following divorce, which risks the immigrant spouse’s ability to obtain citizenship status.
Related: Divorce Due to Immigration Fraud
Types of Green Cards:
A spouse who obtains a green card through marriage will receive a conditional two year green card or a 10 year, permanent renewable green card. Conditional green cards are issued to applicants married for less than two years at the time of issuance. Issuing conditional green cards ensures the marriage was entered in good faith. Permanent renewable green cards are given to spouses married for more than two years.
Spouses granted conditional green cards may petition for a permanent green card 90 days before the end of the two years. Spouses must file an I-751 joint petition to the United States Citizenship and Immigration Services (USCIS) to remove all conditions.
Related: How Divorce Affects Immigration Status
Divorce With a Permanent Green Card
Immigrants who have a permanent green card may not be negatively impacted in the renewal process because good faith marriages last longer than 2 years. Immigrants can renew their green card following the divorce as the Application to Replace Permanent Resident Card asks no questions about marital status.
Divorce With a Conditional Green Card
An immigrant spouse’s status and ability to receive a permanent green card can be affected during the two years they hold a conditional green card. The immigrant might lose their resident status and possibly be deported.
A spouse may file Form I-751 to remove the conditions on their green card despite divorce.
The former spouses must request a waiver of the joint filing requirement, which can only occur if the marriage was entered in good faith. A written statement detailing why the marriage ended is required. Spouses may submit joint financial records, proof they lived together, or evidence they sought marriage counseling to prove the marriage was genuine.
An immigrant spouse may also file for a permanent green card when deportation causes extreme hardship. USCIS takes family ties and impact, social and cultural impact, economic impact, health conditions and care, and country conditions into consideration when determining extreme hardship.
The spouse may also petition to remain in the country despite divorce when experiencing domestic abuse. The immigrant spouse may submit the divorce decree or court records describing these claims.
Immigrants can petition for a permanent green card before the divorce is finalized. USCIS sends notice of a one-year conditional residence extension to allow for finalization. USCIS may send a Request for Evidence for the divorce decree during the extension.
Divorce Settlements
Divorces end with agreements on division of assets, child support, and alimony. Agreements are internationally recognized and protected to ensure agreements are met.
The Hague Conference on Private International Law allows spouses to choose laws from either country of residence to divide assets. Over 80 countries are members of the Hague Conference, including the US.
The Convention on the International Recovery of Child Support protects child support agreements. Countries are required to enforce child support payments in other nations. The U.S. Department of State enforces international child support payments.
Courts may require spouses of foreign nationals to sign an I-864 Affidavit of Support. Affidavits of Support require the citizen to use their financial resources to continually support the immigrant spouse following divorce.
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