Divorce and Visa Status

A person will no longer be eligible for a green card in most cases if the person has applied for permanent residence based on marriage to an American citizen, but divorces before that visa is granted. If they have divorced after filing the petition, that person must contact the Bureau of Citizenship and Immigration Services (BCIS) and inform them of the divorce.

The first step in seeking a green card for the noncitizen spouse of a U.S. citizen is to file USCIS Form I-130 with the U.S. Citizenship and Immigration Services (USCIS). In connection with this, the couple must establish two facts, i.e., that their marriage is legally valid and that it is bona fide, that is,not fraudulent for the sole purpose of getting a green card.

The first fact, the legal validity of the marriage, is shown by presenting a legally valid marriage certificate. The second fact is established by presenting such evidence as wedding announcements, joint banking accounts and auto registration, a lease in the names of both parties to the marriage and the like.

If an immigrant applying for permanent residence status on the basis of marriage has been married for less than two years and USCIS approves the application, the immigrant receives a “conditional” green card. This gives the immigrant conditional (or “temporary”) permanent residence for a period of two years.

The immigrant loses conditional permanent residence if the spouses fail to complete a joint application to remove the condition on the permanent residence status or fails to prove that the marriage is bona fide. Specifically the couple needs to apply during the 90 days before the second anniversary of their conditional residence status. The expiration date on their green card is the date of the second anniversary of the conditional resident status.

If the couple fails to apply, the immigrant spouse could lose conditional resident status and could be removed from the country. Also if the immigrant spouse divorces their U.S. spouse before the two-year mark, USCIS does have the right to revoke the immigrant’s status as a conditional permanent resident.

If, after the divorce, the U.S. citizen ex-spouse is still willing to give the immigrant spouse an “Affidavit of Support”, promising to support the ex-spouse, then the immigrant spouse might still qualify for a green card. But if not, then the immigrant spouse will probably not be granted permanent resident status.

If the divorce occurs after the immigrant spouse and the U.S. spouse adjust the conditional green card status to a permanent one, USCIS will not revoke the immigrant’s status on the basis of the divorce only. But the divorced immigrant spouse who has permanent resident status must wait five years to obtain citizenship and the USCIS will still inquire whether the marriage was bona fide or not.

If one spouse is a U.S. citizen and the immigrant spouse is already living lawfully in the U.S. or has made a lawful entry, they can seek an Adjustment of Status by submitting the required packet of application materials. They do not need to file the I-130 as a separate step one.
If the immigrant spouse gets divorced before their status is adjusted, the USCIS can deny the Adjustment of Status application and begin removal proceedings.

If the immigrant spouse was already living in the U.S. before the marriage and had entered lawfully on the basis of a visa that was unrelated to the marriage, e.g. an H1B visa, then the immigrant spouse may have alternative routes to permanent resident status that do not involve their marriage.

Then any subsequent divorce from the U.S. citizen spouse may not be the end of their quest for permanent resident status. This is where the services of an immigration attorney may become very helpful. An experienced immigration attorney may be able to find a pathway to permanent resident status even if the citizen and the immigrant have divorced.

What If I Am a Victim of Spousal Abuse?

An immigrant spouse, that is, one with temporary permanent residence status, is not required to stay in an abusive relationship in order to gain permanent residence. If the person applying for permanent residence status is a noncitizen married to a U.S. citizen and must leave the marriage due to domestic abuse, they are still eligible for a permanent green card. However, additional steps must be taken. Most importantly, the immigrant spouse will need to file a special self-petition instead of a joint petition.

Unfortunately, a U.S. citizen spouse who has become physically or emotionally abusive before their immigrant spouse has attained permanent resident status might not be willing to help the immigrant spouse file the I-751 application to gain permanent residence. In some cases a U.S. citizen spouse might try to control the immigrant spouse by threatening them with immigration enforcement, deportation or the like.

If a U.S. citizen spouse promised to file the I-751 petition but did not, an immigrant spouse can file the I-751 petition on their own along with a request for a waiver of the joint filing requirement. Several different waivers are listed right on the petition form, Form I-751. One waiver is called the “battery/cruelty” waiver. Unlike the joint filing petition for permanent residence, an immigrant spouse can file a battery/cruelty waiver at any time, before or after your conditional residency status expires.

While sorting out their immigration status, an immigrant spouse who does not yet have a green card has the right to call the police to report a crime. They can report a crime to the police even after the crime occurred. They have a right to report a crime while it is in progress by calling 9-1-1 from anywhere in the United States.

Local police agencies that respond to 9-1-1 calls are not the same as the immigration agency. In some instances, however, the immigration agents who work for Immigration and Customs Enforcement (ICE) work in partnership with local police agencies. That means, for example, that ICE agents might be seen at police department stations and courthouses.

If an immigrant spouse should have contact with ICE, they have a right to remain silent. They do not have to answer questions about their immigration status, even if they know they are in the U.S. legally. They do not have to submit to any kind of search of their person or property and do not have to give consent to a search of any kind of their property.
.
If an immigrant spouse feels unsafe around their spouse, they can also seek protection from the courts. They may seek a domestic violence restraining order–sometimes called a “DVRO” or “Order of Protection.” A restraining order is a legal protection granted by a state court to stop a spouse from certain activity. In some cases the order can direct a spouse not to have contact with the immigrant spouse.

An immigrant spouse who is applying on their own for permanent residence status needs to meet a new set of requirements to qualify on their own and without the support of their U.S. spouse. The requirements are:

• The applicant had a qualifying spousal relationship, i.e. they were married;
• The applicant suffered battery or extreme cruelty at the hands of their U.S. citizen spouse;
• The applicant entered into the marriage in good faith and not solely for immigration purposes;
• The applicant resided with their spouse;
• The applicant is of good moral character.

Children and parents may also qualify, but will need to meet separate requirements.

Am I Eligible for a Waiver?

If a nonresident obtained conditional (or “temporary”) permanent residence through marriage but is now unable to file for an adjustment of their status to unconditional permanent residence because they are now divorced, they may be eligible for a waiver of the joint petition requirement.

To be eligible, the nonresident spouse must have married in good faith and not only to obtain a certain immigration status. They must also show that deportation would cause extreme hardship. Those who have been victims of domestic violence may also request a waiver as stated above.

Do I Need an Immigration Lawyer?

Immigration law is extremely complicated and only becomes more complicated when divorce becomes a factor. If you or a relative have recently filed for divorce or are considering filing for divorce, and your permanent residence petition is still pending, it would be wise to seek the advice of an experienced immigration lawyer immediately.

You are most likely to get the best possible outcome in your case if you have an experienced immigration lawyer representing your interests.