In instances where a married couple includes a non-U.S. citizen either seeking or holding immigration status, there may be legal concerns regarding how divorce factors in. Divorce and immigration may become intertwined for such couples, so it is important to understand the multiple factors of how a spouse’s immigration status may be affected by divorce and remarriage. Here’s everything you need to know about how divorce and remarriage affect immigration.

Will My Immigration Status Be Affected By Divorce?

Depending on whether or not an individual is a conditional resident, a divorce may affect their legal status. A conditional resident is defined as a person who used their spouse’s status as a U.S. citizen or lawful permanent resident to immigrate within two years of marriage. In order to become a permanent resident, a petition to remove conditions of residence must be filed with U.S. Citizenship and Immigration Services. If a person is unsure of their current status, it may be useful to contact an experienced immigration attorney. Divorce may affect an individual’s status if it is based on their spouse’s current visa or pending application. As explained on the U.S. Citizenship and Immigration Services website, a naturalization applicant who is recently divorced is no longer the spouse of a U.S. citizen and is now ineligible to naturalize as a spouse of a U.S. citizen before or after the naturalization application is filed.

Related: How Divorce Affects Immigration Status

Impact of Divorce on Status of the Immigrant’s Children

Generally, if children are included on the non-citizen parent’s application, then their status will track that of the parent after the divorce. If a divorce takes place when the parent of immigration status receives approval as a conditional resident, then their children will receive conditional residence at the same time. However, in the event of a divorce, the children would need to provide evidence that their parent’s marriage was legitimate in the first place. Further details on this process can be found by filing an I-751 Form as a Conditional Resident Child of Divorcing Parents.

Related: Understanding Divorce with Children in California

Remarriage’s Impact on Immigration

It is incredibly important that an individual’s divorce is valid and legitimate prior to seeking remarriage. If someone is seeking a marriage-based green card without receiving a valid divorce, then any subsequent marriage will be invalid and their green card will be denied. An experienced immigration attorney may be a useful resource for any difficulties that may arise in proving a valid divorce.

FAQs About How Divorce and Remarriage Affect Immigration

Does the impact on immigration status from a legal separation differ from a divorce?

Generally, after legal separation, the applicant will no longer be residing with their U.S. citizen spouse and therefore will not be living in a marital union together. Even if the individual continues to reside in the same household after filing for legal separation, their marital relationship will be considered altered and they will no longer be living together in a marital union.

How does an individual prove they were in a valid marriage for the required period of time?

This burden of presenting evidence will usually be on the application to establish the validity of their marriage to a U.S. citizen spouse. A spouse of a U.S. citizen must submit an official civil record along with a naturalization application in order to establish that the marriage is legal and valid. Utilizing legal help from an experienced immigration attorney may prove to be valuable if any difficulties arise in proving a valid marriage.

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