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How Can a Divorce Impact You or Your Spouse's Immigration Status?

If you are a foreign spouse married to a U.S. citizen and living in the United States, a divorce could affect your immigration status. However, this will depend on the amount of time you were married, your Green Card status and your unique circumstances.

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    What happens if I get divorced before I get my Green Card?

    A foreign fiancé(e) of a U.S. citizen or any lawful permanent resident can enter the county until the K-1 (Fiancé(e) Visa) for the sole purpose of marriage.  After the marriage, the U.S. spouse will need to apply for Form I-130 (Petition for Alien Relative) which will start the process for a green card.

    This process is known as ‘adjustment of status’. This means that in order to obtain a Green Card, an I-485 form must be completed and submitted to the USCIS, along with all the other required documentation. This visa provides the spouse with a 2-year Green Card (CR1 visa) which will allow for conditional permanent resident status provided that they stay married during those two years.

    If at any time the couple gets divorced before the approval of their CR1 (conditional residence visa), the immigration process stops. The foreign-born spouse will no longer be eligible for a Green Card and must leave the country, or they will be subject to deportation.

    How can a divorce affect you or your spouses' immigration status

    Divorce Under a CR1 Visa (Conditional Permanent Resident Status)

    After marriage to a U.S. citizen, an immigrant spouse can apply for a conditional permanent residence status. The USCIS issues these Green Cards under a two-year period with the intention to prove that the marriage in a bona fide marriage entered in good faith.

    At the end of the 2 years, the couple must file a joint petition with Form I-751 (Petition to Remove the Conditions on Residence) along with any evidence to further prove the validity of the marriage.

    Filing for divorce whilst the foreign spouse is under this green card visa will put added scrutiny on the marriage and cast doubt as to whether or not your marriage was genuine or fraudulently entered into with the aim of securing a Green Card.

    If this is the case, it is important to reach out to an experienced immigration attorney who can provide you with the best legal advice on how to better navigate the divorce process with that of citizenship and immigration services.

    Can I file I-751 (Petition to Remove the Conditions on Residence) Independently?

    In order to transition from a conditional Green Card to a permanent residence permit (aka, green card), Form I-751 (Petition to Remove the Conditions of Residence) will need to be filed by both the U.S. spouse and non-citizen spouse. If this form is not filed, the foreign spouse will become “out of status” and subject to deportation from the U.S.

    If your 2-year conditional green card is expiring whilst you are in the midst of divorce proceedings, you still need to file Form I-751. If your marriage is terminated in divorce, you can still file Form I-751 without your U.S Spouse through a waiver request if:

    • The U.S. citizen is deceased and you entered the marriage in good faith.
    • You married in good faith, but the marriage ended through divorce or annulment.
    • You married in good faith, but you or your child were subject to domestic violence and/or extreme cruelty at the hands of your spouse.
    • The termination of your Green Card status and deportation would result in extreme hardship

    Furthermore, these guidelines also apply to children residing in the U.S. under a K-2 visa.

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      Divorce as a Lawful Permanent Resident

      If you have been married long enough to gain lawful permanent residence (aka, a Green Card), legal separation and divorce will most likely not affect your permanent residency. Being that you have already proven that your marriage was a bona fide legitimate marriage and therefore your permanent resident status is valid.

      For any Green Card renewals that may take place, you will need to file Form I-90 (Application to Replace Permanent Resident Card). There is a joint filing requirement for this application so you will not need your ex-spouse’s help to sign the petition nor will you have to file any waivers. Any visa renewals can be done by yourself indefinitely or until you achieve U.S. citizenship.

      Furthermore, if you wish to change your name back to your maiden name, you may do so at the time of renewal or replacement. To do this you will need a legal document as proof, such as a final divorce decree. You will need to indicate the name change on Form I-90 along with submitting a copy of the legal name change document.

      How can IAS Help?

      IAS has some of the best immigration lawyers available to assist you through every step of the process.

      We understand how difficult divorce can be, especially how it can impact a person’s immigration status.

      As a top legal firm we provide the best possible service to all our clients, no matter how small or large their case may be. We provide tailored packages 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.

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