USA and the UK
Does getting a divorce affect my immigration status?
Foreign citizens who are married to a U.S. citizen and living in the United States under a marriage-based green card could have their immigration status affected by a divorce. However, the degree to which their permanent resident status will be affected will depend on several factors such as the amount of time that the couple was married, the foreign spouse’s green card status at the time, and the unique circumstances of both the divorce and previous immigration history.
To better find out just how a divorce can impact your permanent residence status, it is always best to seek legal advice from both your divorce attorney and immigration attorney who can best inform you of your specific options.
Divorce while transitioning from a K1 Fiancé Visa to a CR1 (Visa)
Those who entered the United States under a K1 Fiancé Visa for the purposes of marriage will need to adjust their visa status after getting married to their American spouse. In order to do this, they will need to apply for Form I-130r (Petition for Alien Relative) and start the process of transitioning to a Conditional Residence Permit (CR1 Visa).
This temporary green card is valid for 2 years after which, the foreign-born spouse can then file for an IR1 (Marriage Green Card). If the couple decides to get divorced during the time of the adjustment status from a K1 Fiancé Visa to a CR1 visa, the entire immigration process stops. The foreign-born spouse will no longer be eligible for a green card. As a result, the foreign partner will need to leave the country or be placed in deportation proceedings.
What is a conditional green card?
Conditional resident status is given to the visa recipient through a conditional green card (CR1 visa) which is a marriage-based visa given to foreign nationals who are married to U.S. citizens. The purpose of this conditional green card is to test whether or not a marriage is bona fide and help deter people from entering into sham marriages in order to obtain a green card in the United States via marriage fraud.
As a way of implementing stricter standards for marriage-based green cards, the U.S. Citizenship and Immigration Services (USCIS) now issues conditional green cards to foreign spouses whose marriage is less than 2 years old. After 2 years have passed on the conditional green card, the foreign spouse and U.S. citizen have both proven that their marriage is genuine, bona fide, and entered in good faith and can therefore apply for permanent resident status.
In order to adjust their status from a CR1 visa to an IR1 visa, the couple will need to file Form I-751 (Petition to Remove the Conditions on Residence). This is a joint petition that must be completed by both spouses.
Divorce while on a conditional residence permit
If a couple decides to divorce within the first 2 years of marriage while the foreign spouse is on a CR1 visa, the foreign spouse can still stay in the United States under certain conditions. In order for the non-citizen spouse to keep their permanent residency status, the green card holder will need to file Form I-751. Normally this is a joint petition to remove the conditions on the green card, however, in the case of divorce, the foreign spouse can file for this petition with a waiver to the joint filing requirement.
If you decide to file for an I-751 with a waiver for the joint filing requirement, you should seek legal advice from your immigration attorney as this process can be complicated and if denied, the spouse may be subject to removal proceedings.
A divorce casts doubt on whether or not the relationship was genuine and not for the purposes of gaining a green card via a fraudulent marriage. Therefore, in order to file for your I-751 petition after divorce, you will need to submit the petition with a waiver and the following documents:
- The divorce decree
- Any evidence that supports that both spouses entered the marriage in good faith such as children born out of the relationship, shared bank account statements, mortgage or lease agreements, letters or photographs that prove the marriage was legitimate
- A statement written by you that explains why you got divorced
It should be noted that the U.S. Citizenship and Immigration Services (USCIS) can deny your I-751 petition if you were found to be at fault for the marriage ending.
Eligibility for an I-751 Waiver Request
If you need to file for an I-751 independently without your ex-spouse either in the after or whilst in divorce proceedings, you can apply for a joint filing waiver. You can file for a waiver in the following circumstances:
- The U.S. citizen spouse is deceased and the marriage was in good faith
- Both partners married in good faith, but the marriage ended through divorce or annulment
- The foreign spouse married in good faith, but he/she or their child were subject to domestic violence and/or extreme cruelty at the hands of the U.S. citizen spouse
- The termination of the immigrant’s green card status and deportation would result in extreme hardship
Again, before requesting a waiver, the foreign spouse should seek the legal advice of their immigration attorney who can best advise on what evidence needs to be submitted in order to support their claim.
Divorce after a 10-year marriage-based green card approval
If a couple has been married long enough for the foreign spouse to transition to a 10-year IR1 visa, then a divorce will not affect their green card status. Immigration authorities consider a marriage that has lasted that long to have satisfied the requirements of a bona fide marriage.
Therefore, if the couple divorce while the foreign spouse is a permanent resident the USCIS has no need to re-evaluate the green card holder’s immigration status and the foreign spouse can keep their green card.
Green card holders can even change their name back on their green cards after divorce if they choose to when filing for a green card renewal or replacement.
Will I be deported if I get divorced?
If a couple decides to divorce after the foreign spouse has gained U.S. citizenship, then the foreign spouse is free to live and work in the United States as a U.S. citizen without the threat of removal. Furthermore, those foreign nationals who became lawful permanent residents with a marriage green card or any other U.S. immigrant visa will not be deported for leaving their spouses.
However, if you are on a conditional residence visa (CR1 visa) and then divorce, this will lead to that U.S. visa being terminated unless you apply to remove the conditions on your green card by filing for Form I-751. This change in immigration status means that you will have to leave the United States or live in the U.S. unlawfully. According to U.S. immigration law, if a person accrues enough days of unlawful presence in the United States, that individual will face possible inadmissibility bars.
Can Immigration Services revoke a green card?
According to U.S. Immigration law, a lawful permanent resident can lose their green card they have committed the following acts:
- Immigration fraud (Ex. entering a sham marriage to obtain a green card)
- Committing a serious crime (Those who have committed a serious enough crime may be subject to deportation)
- Committing Fraud (This can include intentional lying or omitting important information in their visa application or any other type of fraud committed in order to obtain a green card)
- Failure to Establish a Permanent Residence, or Abandonment of Permanent Residence (Green cardholders must maintain residency in the United States with no more than 180 days abroad. If they need to leave the country for an extended period of time, they must obtain authorization proving that they do not intend to abandon their permanent residence status)
- Failure to advise of a change of address (The USCIS must be informed of any changes in address within 10 days)
It should be noted that both citizenship and lawful permanent resident status are rarely revoked once given unless it has been proven that fraud was committed in order to obtain citizenship or a green card.
U.S. naturalization after divorce
Foreign citizens married to U.S. citizens and living in the United States under a marriage-based green card are eligible to apply for U.S. citizenship after 3 years of continuous residence in the country. However, if the green card holder divorces their spouse before becoming a naturalized citizen, they can apply for citizenship after 5 years.
It should be noted that a divorce can impact an immigrant’s application for naturalization. Immigration authorities look at divorce as a red flag and will do a complete review of your immigration file when you apply to become naturalized. USCIS officials will look for any evidence that suggests you have obtained your green card fraudulently including asking you a few questions regarding your marriage during the naturalization interview. These questions will be very personal. Officials will most likely ask you questions regarding what day-to-day life was like in your marriage, what led to the breakdown of the relationship, who initiated divorce proceedings, and if you considered or pursued other options to divorce like marriage counseling.
Depending on the interview, you may need to support evidence to help prove that you entered the marriage with good intentions.
How can IAS help me keep my green card after divorce?
Divorce can be a difficult time for everyone especially if a spouse’s permanent residence status hangs in the balance. If you are unsure of what your options are during this complicated and difficult time, contact IAS for help. We will help you match with the right immigration lawyer who can provide you with the attorney-client relationship that you can trust.
Our goal is to provide you with the best possible service, no matter how small or large their case may be. Our packages are t that best fit your needs and we are always on hand to communicate with you throughout the process.
Call us on +1 844 290 6312 and one of our immigration attorneys will be ready to work with you on your case. We are available to speak over the phone or by online call.
Last modified on November 8th, 2021 at 8:44 am
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