IMMIGRATION CONSEQUENCES OF DIVORCE
Going through a divorce is typically a traumatic and stressful event for a family to endure, but noncitizens of the United States face additional concerns beyond dividing marital property and child custody, such as whether they will lose authority to live, work, or study, in the U.S.
CATEGORIES OF FOREIGN NATIONAL SPOUSESA foreign national spouse will most likely fall into one of the following categories: (1) a spouse who does not have a green card, (2) a spouse who has a conditional green card, or (3) a spouse who has an unconditional green card. Each category will have unique immigration consequences as a result of divorce and are addressed differently under immigration laws.
(1) A SPOUSE WHO DOES NOT HAVE A GREEN CARDIf a foreign national is immigrating to the U.S. as the spouse of a U.S. citizen or permanent resident, and the couple divorce before the application is adjudicated, the foreign national will no longer qualify as a spouse of a U.S. citizen or permanent resident which will result in the denial of the application. The foreign national will have to immigrate under a different category for which he or she qualifies. Likewise, nonimmigrant derivative visa holders who obtain their immigration status based on their marital relationship, will lose their immigration status as a result of divorce. In such cases, the immigrant spouse may consider self-petitioning for a green card under the Violence Against Women Act (VAWA), if eligible. Under the Violence Against Women Act ("VAWA") the immigrant spouse may "self petition" for his or her own green card, and obtain their green card without relying on the abusive spouse to participate. Under certain circumstances, the applicant is not required to be married to their abusive spouse at the time of filing. If the applicant is divorced from their abusive spouse, he/she can still self-petition under VAWA, but only if the divorce is 2 years old or less at the time of filing and it can be proven that the abuse was related to the reason for, or was the reason for the divorce. It is also not necessary that the victim be divorced in order to apply for the immigrant visa under VAWA. However, if the applicant remarries before filing or after filing and before the self-petition is approved, the VAWA application will not be granted. If the foreign national is a victim of domestic violence but ineligible to self petition under VAWA, the victim may be eligible to apply for a nonimmigrant U visa. A U visa is for victims of certain crimes who have suffered mental or physical abuse and who have been, or are presently helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. It is advisable to consult with an immigration attorney about options and eligibility before applying.
(2) A SPOUSE WHO HAS A CONDITIONAL GREEN CARDA person who immigrates to the U.S. based on a marriage that is less than two years old at the time of his/her admission will receive conditional permanent residence status. In order to become a permanent resident, the conditional resident must apply to remove the conditions within 90 days before the second anniversary of the card. Removing the conditions requires additional evidence of the bona fides of their marriage, and sometimes an interview. Generally, the foreign national must remove the conditions jointly with their spouse. However, there are a few exceptions to the general joint-filing rule, which include,1) you entered the marriage in good faith but subsequently divorced, 2) you are a battered spouse or child, and 3) termination of your status and removal could result in extreme hardship. If the spouses are divorced before the conditions of a temporary green card are removed, the foreign national will have to file a waiver, using one of the exceptions above. It is best that the foreign national seeks the help of a qualified immigration attorney when handling these types of cases, as denial of a removal of conditions application would likely result in the initiation of removal proceedings.
(3) A SPOUSE WHO HAS AN UNCONDITIONAL GREEN CARDGenerally, a divorce will have no affect on the immigration status of an immigrant who has already obtained permanent resident status without conditions, besides a longer statutory period for eligibility for naturalization. Generally, to qualify for naturalization an applicant must be a permanent resident for 5 years, but will qualify after only 3 years if the applicant has been a permanent resident for 3 years and has been married to a United States citizen during that period. Spouses of United States citizens that divorce during that period will have to wait until they have been a permanent resident for at least 5 years before applying.