How Divorce Can Affect Your Immigration Status In The U.S.

Quick Recap:

• Divorce can significantly impact your U.S. immigration status, especially if your residency is based on marriage.
• Conditional residents must file Form I-751 to remove conditions; divorce requires a waiver.
• Victims of abuse may seek protection under the Violence Against Women Act (VAWA).
• Permanent residents face fewer issues but may encounter challenges during naturalization.
• Consulting an immigration lawyer can help navigate these complexities.

Divorce can be a difficult life change. For immigrants in the U.S., it may raise added concerns about legal status and the ability to remain in the country. Knowing how divorce affects your immigration journey protects your rights and planning for the future.

The information below outlines how divorce can impact different immigration situations. It includes conditional and permanent residency, and explains legal options that may be available to help you move forward.

Conditional Residency & Divorce

If you received your green card through marriage and were married for less than two years, it is conditional. This two-year status ensures your relationship is legitimate and not used solely for immigration purposes.

To keep your residency, you must file Form I-751 before your conditional card expires. This petition usually requires joint filing with your spouse, supported by proof that the marriage was genuine and ongoing.

If divorced, you may still request a waiver of the joint filing rule. Submit strong evidence that your marriage was real, along with an explanation of the circumstances that caused the divorce.

Filing Form I-751 After Divorce

Typically, Form I-751 is filed jointly by both spouses within 90 days before the conditional green card expires. If the marriage ends before filing, you must request a waiver instead.

The I-751 waiver requires proof that you entered the marriage in good faith. Acceptable evidence includes joint financial records, shared property documents. You can also submit affidavits from friends or family who know your relationship was genuine.

Risks Of Denial Or Not Filing

Failing to file Form I-751 or having the petition denied can result in removal (deportation) proceedings. USCIS scrutinizes these cases closely to prevent marriage fraud, making it vital to provide comprehensive and credible evidence.

Permanent Residency & Divorce

If you have a 10-year permanent green card, divorce will not automatically take away your status. You can stay in the United States and keep moving toward naturalization.

Impact On The Process

Divorce may change your timeline if you apply for U.S. citizenship. If you are a U.S. citizen spouse, you can file after three years. However, if you divorced before filing, you must usually wait for five years.

Scrutiny During Naturalization

During the naturalization process, USCIS may review your marital history to ensure the original marriage was bona fide. Be prepared to provide documentation supporting the legitimacy of your marriage, even if it ended in divorce.

VAWA Protections For Abused Spouses

The Violence Against Women Act (VAWA) protects abused immigrants by their U.S. citizen or lawful permanent resident spouses. You can self-petition for lawful permanent residency without your abuser’s knowledge or consent.

Eligibility For VAWA

To qualify, you must demonstrate that you were married to a U.S. citizen or lawful permanent resident in good faith. You have suffered battery or extreme cruelty during the marriage.

Under VAWA, abuse is not limited to physical violence. Acts like emotional manipulation, verbal threats, financial control, and intimidation can qualify if they create an environment of fear or restrict a person’s independence.

Abuse includes threats of deportation, humiliation, or isolation from friends, family, and community, all of which can be used to exercise control over the victim. Sexual coercion, stalking, and patterns of controlling behavior may also meet VAWA’s definition of abuse.

The law uses an “any credible evidence” standard. It means survivors can use personal statements, witness letters, medical records, or other documentation to prove the harm they experienced. This is so even without police reports or restraining orders.

Benefits Of VAWA

An approved VAWA petition allows you to apply for work authorization and, eventually, a green card. It also provides you protection from deportation and the ability to apply for certain public benefits.

Divorce During The Visa Process

If you’re in the process of obtaining a marriage-based visa or green card and divorce occurs, the process typically halts. Since your eligibility is based on the marital relationship, the end of the marriage removes the basis for the visa.

In some situations, you may be eligible to adjust your status through other means. For example, employment-based visas or family sponsorship from another relative. Consulting an immigration lawyer can help identify alternative pathways.

Affidavit Of Support Obligations Post-Divorce

When a U.S. citizen or permanent resident sponsors an immigrant spouse, they sign an Affidavit of Support (Form I-864). It’s a contract between the sponsor and the government committing to financially support the immigrant.

Affidavit Of Support Duration

This obligation generally continues even after divorce until the immigrant becomes a U.S. citizen, has worked 40 quarters, leaves the U.S. permanently, or dies.

Enforcement Of Support

If the sponsor fails to meet this obligation, the immigrant can sue for enforcement. Knowing these responsibilities is vital for both parties during and after divorce proceedings.

Extreme Hardship Waivers

If divorce could result in removal from the U.S., you may seek a waiver based on extreme hardship. You must show that removal would cause serious hardship to yourself or qualifying relatives.

Criteria For Extreme Hardship

USCIS looks at many factors when deciding extreme hardship cases. For example, medical conditions needing treatment in the U.S., financial challenges, education disruptions, and strong family ties in the country.

Provide Detailed Documentation

You must prepare detailed documentation for your waiver request to be successful. Submit medical records, financial statements, school records, and affidavits. These would show that your removal would create extreme and lasting hardship.

Legal Assistance Can Create A Difference

Steering through the divorce and immigration journeys can be challenging and sometimes frustrating. However, help is within reach. A skilled immigration lawyer provides support by helping gather necessary documentation and representing you in proceedings.

Legal assistance can ensure the timely and accurate filing of forms. It helps build a strong case for waivers or VAWA petitions and provides strong representation in court or USCIS interviews.

Legal support can positively change the outcome of your immigration status post-divorce.

Choose Your Option Wisely

Divorce can have a great consequence on your immigration status in the U.S., if not done right. This is especially true if your residency is marriage-based. Knowing your rights and legal remedies can protect your status and residency.

Lincoln-Goldfinch Law can guide you through it all. Whether it’s filing an I-751 waiver, seeking protection under VAWA, or exploring alternative visa options, we are here to help.

If you’re facing divorce and are concerned about your immigration status, talk to us at Lincoln-Goldfinch Law today. We will guide you through the complexities of immigration law with compassion and help protect your rights to stay in the U.S.