Divorce can be immensely stressful, especially when immigration status is involved. Here’s what to know about divorce and immigration status.
Getting a divorce and becoming a permanent resident is possible, but can be more difficult. File Form I-751 in the specific allotted time as well as not claim bad faith as grounds for divorce.
Will Divorce Affect Immigration Status?
Divorce or separation may affect the legal status of conditional residents. An individual is granted a “conditional permanent resident status” if they immigrated to the U.S. within two years of their marriage. If an individual moves to the U.S. for marriage, they are a conditional resident.
Divorce or separation may affect immigration status if one spouse’s status depends on their spouse’s status, which may make becoming a permanent resident more challenging.
Related: How Divorce and Remarriage Affect Immigration
How To Become a Permanent Resident
However, one may become a permanent resident even when going through a divorce. In order to become a permanent resident, a conditional resident can file Form I-751 (Petition to Remove Conditions of Residence) with U.S. Citizenship and Immigration Services (USCIS), which must be filed during the final 90 days before the conditional residency’s expiration date. Both spouses can file this form together and include documents proving they are still married.
However, if the marriage has already ended under state law, one may file the I-751 themself. A spouse can file a waiver of the joint filing requirement and provide ample evidence the marriage was legitimate.
One must show the marriage happened in “good faith,” meaning the individuals involved married out of love and not for immigration status purposes.
Related: How Does Divorce Affect the Immigration Process
Marriage in Bad Faith
The spouse who is an American citizen may accuse the non-American citizen of marriage in order to obtain a green card. The American citizen spouse can claim “bad faith” as grounds for divorce, meaning the American citizen spouse is swearing under oath the marriage is fake and the non-citizen spouse married in an attempt to obtain a green card.
Bad Faith in a Settlement
A “bad faith” claim can become problematic when a divorce settles, especially when considering immigration status. Once the judge accepts the agreement and enters it into the court record, there is no way to undo the U.S. citizen spouse’s allegation of bad faith post-settlement. An exception can be if the American citizen spouse admits to lying under oath.
Related: What is Immigration Marriage Fraud Under U.S. Law?
Bad Faith in a Court Proceeding
The bad faith claim can be problematic if a case goes to a court proceeding. If the U.S. citizen spouse alleged bad faith and is able to prove it to the court, the exact language in the divorce decree issued by the judge will become crucial to determining how the non-citizen’s immigration matter will proceed. If the divorce decree specifically mentions the marriage occurred in bad faith, the non-citizen’s chances for immigrating to the U.S. are virtually nonexistent.
The USCIS will require a copy of either the divorce decree or marital settlement agreement as part of the non-citizen spouse’s I-751 paperwork and will take note of any allegation the marriage occurred in bad faith.
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