Divorce is challenging, but it becomes even more overwhelming when it affects your U.S. immigration status. You’re not only ending a marriage, but also facing the risk of losing your right to stay in the country you call home. This article aims to provide the understanding and guidance you need to navigate these turbulent waters with confidence.
How Divorce Affects Immigration Status
For some foreign nationals, their legal status in the U.S. is closely tied to their marriage. The end of that marriage can trigger a cascade of legal challenges, making an already painful situation even more stressful. In these scenarios, it is important that the parties who are divorcing speak with an immigration attorney, such as Riddhi Jani, to better understand the impact of a divorce on their immigration status. Immigration counsel can advise you about potential concerns to your status and proactive steps to protect your immigration status.
In general, here’s how divorce might impact your immigration status depending on your specific situation:
Conditional Residency After Divorce
Marriage-based green cards (GCs) are issued for either 2 or 10 years. Why the difference? If at the time DHS issues you a green card your marriage is less than 2-years old, you will get a 2-year green card. These 2-year GC holders are referred to as conditional permanent residents (CPRs) and their GC will expire two years after issuance.
So, if you were married on June 16, 2022 and received your GC on June 16, 2023, your Green Card will expire on June 16, 2025. The law requires that you and your spouse file a joint petition to remove the conditions on your residency before June 16, 2025
But what happens if your marriage ends before the two years?
Divorce doesn’t mean your immigration journey ends. There are legal mechanisms in place to help you stay in the U.S. if your marriage dissolves, but they require careful navigation and a clear strategy. You might feel like there is no hope if you get divorced before the two-year timeframe, but there are paths forward. You can apply for a waiver to remove the conditions on your residency, even without your ex-spouse’s cooperation. The two most common waiver paths are Good Faith Marriage and Abuse.
Good Faith Marriage
The Good Faith Marriage basis is your chance to prove that your marriage was genuine even though it ended in divorce. Collecting the right documentation, such as proof of comingled assets, affidavits from people who knew you as a couple, and photographs of your shared life, can support this waiver.
Abuse
Second, if there has been abuse in the marriage, you can file your petition together with evidence of abuse. Importantly in this scenario you do not need to wait to file until the 2-year GC expires NOR do you need to get a final divorce decree – you can file under this basis at any time. However, you do still need to demonstrate that the marriage was genuine (same as above). It is crucial to discuss this with both your divorce attorney and an immigration attorney to understand how these circumstances could affect your ability to obtain citizenship or remove conditions on your residency.
Divorce Implications When You Are on a Dependent, Non-Immigrant Visa
For those on a dependent visa, such as an H-4 visa, L-2 or F-2, the end of a marriage can feel like the ground is slipping out from under you. As its name suggests, a dependent visa is granted to the dependent family members (spouses and children under 21) of the principal visa holder, allowing them to live in the U.S. while the primary visa holder works. However, the dependent’s status is directly tied to the status of the principal visa holder, which means that divorce can jeopardize the dependent’s legal status in the U.S.
If your marriage ends, you may lose your right to stay in the country unless you take action. Here are the key steps to consider:
- Explore Alternative Visa Options: Depending on your situation, you may be eligible to apply for a different visa, such as an employment-based visa (if you qualify to work) or a student visa if you wish to pursue further education. It’s crucial to act quickly to avoid falling out of status.
- Consult an Attorney: Legal guidance is essential in this situation. An immigration attorney can help you understand your options and guide you through the process of changing your visa status or exploring other legal pathways.
Impact on Children: Custody and Immigration
When divorce involves children, the stakes are even higher. Custody battles can be complex, and when immigration is part of the equation, it adds another layer of difficulty. Here are some critical considerations:
- Child’s Immigration Status: If your child is a foreign national, make sure their immigration status is secure. You may need to apply for a change in status or adjust custody arrangements to protect their ability to stay in the U.S.
- Custody Arrangements:The court will prioritize your child’s best interests. However, you must be ready to address how custody affects both your and your child’s immigration status. If the foreign national parent gets primary custody, it could impact their ability to remain in the U.S.
- Travel Restrictions: Dual citizenship or different immigration statuses between the child and a parent can complicate travel or relocation after the divorce.
Protecting your child’s immigration status during a divorce requires careful planning and legal intervention, so it’s crucial to involve both a divorce attorney and an immigration attorney. Finally, it is important to discuss with your attorney how your or your spouse’s immigration status could impact your minor children and their residency.
Spousal Support and Financial Implications
Divorce also brings up questions of spousal support, especially when one spouse is an immigrant:
- Spousal Support Obligations: In some cases, the courts may award spousal support. This is particularly likely if one spouse has been financially dependent on the other. This can be particularly relevant if the immigrant spouse has not been working because they do not possess work authorization.
- Impact of Affidavit of Support: Every family-based Green Card holder has a U.S. sponsor who signs an Affidavit of Support (Form I-864). In marriage cases, the U.S. citizen spouse signs this legally binding document. Its obligations last beyond the marriage. Even after a divorce, the U.S. citizen spouse must ensure the foreign national spouse does not become a “public charge.” This responsibility lasts until the foreign national becomes a U.S. citizen or earns 40 quarters of U.S. work credits. It’s crucial to disclose this Affidavit to your attorney, as it can greatly affect your divorce case.
- Division of Assets: Any shared assets must be divided according to family law and immigration considerations. For example, if the foreign national spouse plans to return to their home country, this could impact the division of assets.
Understanding your rights and obligations regarding spousal support and financial arrangements is crucial. Both parties should seek legal advice to ensure their financial futures are protected.
Considerations for U.S. Citizen Spouses
As a U.S. citizen, you might think that divorce only impacts your foreign national spouse. However, the legal and financial responsibilities can extend long after the marriage ends.
- Financial Obligations: The Affidavit of Support you signed obligates you to ensure your spouse stays off welfare, food stamps etc. even after divorce. This commitment lasts until they either become a U.S. citizen or work for 40 quarters. It’s a heavy responsibility that doesn’t end just because your marriage does.
- Accusations of Marriage Fraud: Divorce can lead to accusations of marriage fraud, especially if your spouse was still in the process of securing permanent residency. Even baseless claims can result in legal complications that are stressful and time-consuming to resolve.
- Custody and Immigration Issues: If you and your spouse divorce, the divorce might affect your children’s immigration status. It’s essential to consider how custody arrangements could impact their ability to stay in the U.S.
Understanding these potential pitfalls and your continued responsibilities is crucial. Working with a legal team that understands both divorce and immigration law can help you navigate these challenges effectively.
This article has been collaboratively authored by Jessica Marshall, Divorce and Family Law Attorney at Anderson Boback & Marshall, and Riddhi Jani, Immigration Attorney and Managing Partner at Jani Law Group. Together, they offer a unique perspective on navigating the intersection of divorce and U.S. immigration laws. Riddhi Jani specializes in immigration law, providing clients facing both divorce and immigration challenges with comprehensive legal advice. For immigration-related concerns, contact Riddhi Jani to explore your options and protect your status during this critical time.
Steps to Take During a Divorce
Facing a divorce when your immigration status is at stake can feel overwhelming. However, you can take proactive steps can help protect your future.
- Consult Both Attorneys: You need guidance from both a divorce attorney and an immigration attorney to understand the full scope of your situation. They can help you plan the best legal strategy to protect your rights.
- Document Your Marriage: Keep detailed records of your marriage, including joint financial documents, communications, and photos. These will be invaluable if you need to prove the legitimacy of your relationship.
- Consider Your Options: Don’t assume that divorce means the end of your time in the U.S. Depending on your situation, you may qualify for a different visa or relief to help you stay.
Moving Forward
Divorce is never easy, and when your immigration status is part of the equation, it can be even more daunting. But you don’t have to go through it alone. Jessica Marshall and Riddhi Jani are here to help you navigate these complexities with compassion and expertise. Whether you need divorce guidance or immigration advice, you’re not alone. Contact us today to explore your options.
