Immigration and Divorce: What You Need to Know

Does a divorce affect the immigration process?

Yes! Divorce can be overwhelming. First there is the required one year of separation. Then, there are issues over spousal support, asset division, child support, custody, and visitation. The divorce process will likely involve a separation agreement, mediation, and court hearings. Even when the separation is friendly and amicable, it is still a life changing process and therefore stressful. This process is even more complicated and difficult when there are immigration issues involved.

Just like divorce laws are complex, so are immigration laws. The laws in both realms change constantly and are never dormant. The laws also vary from state to state and country to country. This overview will assist with understanding how these two areas of law overlap.

What happens to immigration status when an immigrant divorces a US citizen?

Immigration is a complicated process. It can take years to obtain a lawful residency and even longer to become eligible to become a citizen. A lot can happen between the time period that a person applies for legal status and citizenship, and of course, relationships can change during this time as well. The Center of Immigration Studies estimates that almost 400,000 US citizens marry foreign nationals each
year. If that marriage ends before two years, the immigrant spouse loses his or her immigration status.

A “red flag” is sent to the US Citizenship and Immigration Services (USCIS) because in order to convert one’s conditional residency into permanent residency, the following must be met: married in good faith and the marriage lasted two years. Thus, timing and proof of a good faith marriage are important factors in both divorce law and immigration law.

Every immigration case is going to be different, just like every divorce case. As such, we’ve laid out some

Some immigration law basics:

  • Citizens of certain countries are allowed to visit the US for up to 90 days without obtaining a visa, such as people on a vacation.
  • US citizens can sponsor family members, immediate relatives, like a spouse, parents, and unmarried children under 21. This is referred to as family-based immigration.
  • The most common method for granting legal status is through family-based immigration.
  • The Green Card is named for the color of the lawful permanent resident status; to have a green card means one has obtained permanent residency.
  • If one has not applied for a green card before divorce proceedings start, it is too late. One can’t use their spousal status. Another way to obtain permanent status must be used.
  • A spouse can’t deport a spouse – that control does not belong to the spouse. But, if one is in the US on a visa that was based on spouse’s application, a divorce may affect one’s status and ability to stay in the US.
  • If one used spousal status to immigrate within two years of marriage, the immigrant spouse is a conditional resident. Divorce may affect your conditional residency. A person may need to wait for five years before applying to become a citizen.
  • A person can be deported even if married to a US citizen – until one is a naturalized US citizen, deportation is an unfortunate possibility.
  • Undocumented immigrants do not automatically become naturalized after marrying a US citizen.
  • Child custody and property rights should not be affected by one’s immigration status.
  • During the process of becoming a citizen, USCIS may investigate the marriage, looking for proof that the marriage is “real and in good faith”, like reviewing bank records for proof of joint accounts, property ownership, family outings, and other evidence of an authentic marriage. There will likely need to be some cooperation between the parties while being investigated in the course of a divorce as well. Yes – sometimes there needs to be cooperation during divorce.

If you have immigration and divorce issues, it is wise to consult with both an experienced immigration attorney and divorce attorney. Divorces take at least a year to finalize and immigration issues can linger for much longer. There may be a need to use language that incorporates cooperation and sharing of documents in a separation agreement or court order. Legal rights are vitally important in both of these areas of law, and this is especially true when these two areas intersect.