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Can A Divorce Affect My Immigration Status?

Spouses who marry U.S. citizens and lawful permanent residents and get visas in order to stay and work in the U.S. may sometimes worry about what will happen to their status if they get a divorce. The answer to this can be complicated depending on the type of visa the spouse has, and what stage of the immigration process the spouse has reached.

For immigrant spouses who have already made the application for permanent residence or citizenship and been approved for a change in status, their status rarely gets changed after a divorce. There is an exception if immigration officials can prove that the marriage was based on fraud, that is, that the marriage was not really a marriage and was entered into simply for immigration purposes.

Immigrant spouses who receive lawful permanent residence as a result of marriage can become U.S. citizens after three years of becoming lawful permanent residents. A divorce only affects the amount of time the lawful permanent resident has to wait to naturalize. After a divorce, the immigrant spouse would have to wait five years instead of three.

Conditional Status

When an immigrant spouse seeks lawful permanent residence status through marriage, he or she is required to have the U.S. citizen or lawful permanent residence spouse sponsor or support the application. Generally, the spouse first receives conditional permanent status, and the conditional status can be removed after two years. If the couple was married for less than two years before the granting of conditional permanent residence, they have to wait for a longer period of time to get the conditional status removed.

Because removing a conditional status or even being granted the status requires a showing that the marriage was entered into in good faith and is bona fide, a divorce can complicate things. If the U.S. citizen or lawful permanent resident spouse files the divorce alleging that the marriage was not real, that can cause the U.S. government to deny the other spouse’s application.

If the marriage was real, and the claim of bad faith is used as a tactic to get more favorable terms in the divorce or simply to get back at the immigrant spouse, then the spouse can present his or her own evidence to prove that the marriage was real. This can include letters and statement from people who know the couple, and proof that the couple cohabited and lived like a married couple can help dispute the allegation that the marriage was fake.

Filing For a Waiver from Filing a Joint Petition

If the divorce goes through without any allegations of a fraudulent marriage, the immigrant spouse can still continue with the application to remove the conditional status on his or her permanent residence alone. The immigrant spouse would have to file a waiver of requirement to file joint petition to remove conditions. Once again, in submitting this waiver, the person applying must prove that the marriage was entered into in good faith.

If a couple gets married and never gets around to applying for permanent residence status for the immigrant spouse, perhaps because that spouse is in the U.S. under another visa category, a divorce can end the immigrant spouse’s chance at applying for lawful permanent residence as a spouse of a U.S. citizen or permanent resident.

Contact Us for Divorce Assistance

If you are considering a divorce and are worried about your immigration status, you may need to consult both an immigration attorney, and an experienced divorce attorney. For more information on filing for divorce in Florida, contact our experienced Boca Raton, Florida divorce attorneys, at the Law Offices of Schwartz l White for legal assistance.




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