September 18, 2014 | Share
Divorce and Deportation: How divorce can affect immigration status
The Center for Immigration Studies estimates that approximately 400,000 U.S. citizens marry foreign nationals every year. The foreign nationals go through an immigration process that begins with a Visa petition to travel to the U.S. Once married, they are granted a green card with a conditional permanent residence status. After two years, they can file a joint petition with their spouse to have the conditions removed so that they are permanent residents, the last step before applying for U. S. citizenship. But what happens if the couple divorces before the foreign-born spouse becomes a U.S. citizen, or even before he or she obtains permanent residency?
Although the U.S. Citizenship and Immigration Services (USCIS) critically reviews the immigration history of an applicant to determine that their marriage was not for the sole purpose of obtaining U.S. residency, a foreign national who divorces prior to even being granted a green card is not necessarily without hope. Collin County divorce attorneys advise that the foreign-born spouse can be granted a conditional permanent residence status--a green card--by filing a waiver of termination (of the application process, which would otherwise be automatically terminated by the divorce of the parties). The waiver must be accompanied by proof that the marriage was valid, and/or that returning to the foreign national's country of origin would cause him/her extreme suffering and hardship, or that he/she suffered extreme cruelty or abuse by the U.S. citizen.
If the foreign national already has a green card which confers a conditional permanent residence status, the next step in the immigration process is to obtain an unconditional permanent residence status. Absent a divorce, a couple files a joint petition to remove the conditional nature of the residence status. If divorced, a foreign national must file the petition on his/her own. As with the petition for waiver, Collin County divorce attorneys caution that USCIS will most likely require proof that the marriage was valid before allowing the foreign national to proceed to the next stage along the path to citizenship. Alternatively, showing proof of extreme suffering or hardship upon return to his/her country of origin and/or showing proof of cruelty suffered at the hands of the citizen spouse are again factors that argue in favor of granting the petition.
Once a foreign national has unconditional permanent residence, the only effect a divorce has upon their immigration status would be a possible delay in obtaining U.S. citizenship; i.e the process may take a little longer. Citizenship will, however, be attainable, unless some factor other than the divorce intervenes.
Residence in the U.S. through marriage can be risky. But as long as the residence is not the reason for the marriage, a divorce need not result in deportation. Getting the right legal help can make all the difference. Contact Nordhaus Walpole, PLLC, and our Collin County divorce attorneys to assist you with your immigration and divorce issues.
Categories: Family Law & Divorce