Divorce is a complicated matter. A divorce when your immigration status is dependent on your spouse can take complications to a whole new level. While we always recommend consulting with an immigration attorney in any situation that affects your visa status, this article provides an overview of divorce and your current status, permanent residency applications, undocumented immigrant status, financial responsibility, child custody, and more.
A divorce doesn’t have to mean immediate deportation, but it does mean that you should be aware of your options. Talk to an immigration lawyer to have a plan in place to secure your future, whether in the United States or back in your home country.
Divorce and your current visa status
Divorce does not change permanent residency status, but it does affect non-resident visa statuses such as:
Conditional residency – A visa status for immigrant spouses that are married for at least two years to a US citizen or a lawful permanent resident.
Dependent visas – Spouses that have entered into the US as part of their spouse’s visa status. For example, you are married to an H-1B visa holder, and you have an H-4 status that is dependent on his or her good standing.
Conditional residents have a three-year residency requirement to earn US citizenship as opposed to the standard five-year residency requirement. To receive the shorter residency requirement, you must be able to prove that you were married in good faith to a US citizen or permanent resident for at least three years. If you get divorced before then, you will have to wait five years to apply for US citizenship.
If your divorce was finalized while you’re a conditional resident and you’d like to obtain permanent residency status, you will need to submit the Petition to Remove Conditions on Residence, Form I-751, and a request to waive the standard requirement to file the I-751 jointly with your spouse.
You’ll also need to submit to with your petition:
- Your divorce decree
- Proof that your marriage was entered in good faith, such as proof of children together, evidence of shared bank accounts or mortgage documents, or letters or photographs that prove that the marriage was legitimate
- And a statement on why you got divorced. If it is determined that you were at fault for the marriage ending, USCIS could deny your I-751 petition.
If you are a recipient of a dependent visa, you lose your immigration status when your divorce is finalized. Your Employment Authorization Document (EAD) will also be revoked. However, in situations such as an abusive relationship, you can work with a reputable immigration attorney to file for a work permit that applies only in those circumstances. But in most cases, you will have to leave the US or apply for a different visa that is free from a spouse sponsorship.
Does divorce affect your permanent residency application?
Married conditional residents must file a petition with USCIS before the second anniversary of their admission into the US to receive full permanent resident status. If the marriage ends, the non-citizen spouse will lose their immigrant status and become deportable.
If you have been approved for permanent residence before you are divorced, your divorce will not affect your immigration status. However, divorced non-citizens will have to wait five years to apply for a green card, versus the three years if you were married and have conditional residency. Once you become eligible to apply, USCIS will take a look at your entire immigration history, and you will have to prove that your marriage was not fraudulent during the green card interview process.
As in other circumstances where you will need to prove your marriage was in good faith, you will have to provide supporting documents that contain evidence of your life together and its legitimacy. If you are unable to prove that your marriage was out of love and not to obtain a visa, USCIS can deny your citizenship and may even trigger removal proceedings.
Divorcing while undocumented
Being married to a US citizen does not automatically provide an undocumented immigrant with legal status, and filing for divorce does not prompt deportation proceedings. Although the divorce court is not permitted to contact US Immigration and Customs Enforcement (ICE), others may do so.
Divorce can also affect any income the undocumented person receives since they have no right to legally work in the US. However, in divorce proceedings, undocumented immigrants have the same rights as lawful permanent residents to receive alimony.
Undocumented spouses may also be awarded child custody, spousal support, and child support. To stay in the US after the divorce is final, with the help of an experienced immigration attorney, an undocumented immigrant will need to prove:
- The marriage was entered in good faith, and the divorce was at no fault of the undocumented party
- The threat of extreme hardship if deported
- Or that you were battered or abused by the US citizen spouse
As part of the visa requirements for a sponsored non-citizen, the US citizen or permanent resident spouse must sign the Form I-864, the Affidavit of Support. This document shows that the non-citizen has adequate means of financial support and is not likely to rely on the US government for financial assistance.
The affidavit creates an obligation for the sponsoring spouse to annually support the non-citizen at an amount that is 125% or more of the US Poverty Guideline levels. This obligation ends when the non-citizen:
- becomes a US citizen
- earns 40 work quarters credited toward Social Security (approximately ten years of work)
- dies, or
- permanently leaves the United States.
The obligation also ends when the sponsoring spouse dies. Divorce does not end financial commitments. Excluding divorces prevents the non-citizen from going on welfare or requiring government assistance after the divorce. The US government could sue the US citizen sponsor to recover any government assistance that the non-citizen received.
However, if the sponsoring spouse knows divorce is imminent, they can withdraw the Affidavit of Support. But the withdrawal must take place before a lawful permanent resident visa is issued because once it’s approved, the affidavit can no longer be withdrawn. Withdrawal of support automatically cancels the permanent resident petition.
Death of the sponsoring spouse
As mentioned above, when the sponsoring spouse dies, all financial obligation to support the non-citizen spouse ends. Their death could also affect your citizenship status. In the situation of a sponsoring spouse’s death, the surviving spouse can petition for their own US citizenship regardless of how long they were married. However, you must self-petition within two years of your spouse’s death with the I-360 Self Petition as a Widow(er) of a US Citizen form. Only spouses of US-born citizens are eligible to self-petition, spouses of deceased lawful permanent residents are not qualified.
State laws generally do not factor in immigration status when determining child custody cases. However, courts usually rule in the best interest in the child, and any potential removal proceedings of the parent may affect the final decision. If the parent is undocumented, other factors are also considered, such as the parent’s inability to obtain legal employment, secure suitable living space, and the potential of deportation.
Regardless of your immigration status, to be awarded custody, you will have to prove to the courts that you are fit to care for your children. You will need to provide evidence that you can supply your child with reliable financial resources, education, and the care and support that they need.
Reach out to a reputable immigration attorney to help you navigate through the complications of a divorce. You have options, and an experienced attorney can help you plan out the best next steps for you and your family, regardless of your immigration status.
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