Can I Adjust My Immigration Status After Divorce?

Divorce can bring emotional and legal challenges, especially for immigrants navigating their residency process in the United States. The answer to whether you can adjust your immigration status after a divorce depends largely on your specific situation, such as the type of visa or residency status you currently hold. While divorce may complicate the process, it doesn’t always mean your pathway to permanent residency or citizenship is entirely blocked. Understanding the legal considerations and your options is crucial.

At Villarrubia & Rosenberger, P.C., we have extensive experience helping clients navigate their immigration status after a divorce, and we are here to provide guidance and support for your unique case.

Key Considerations and Legal Complexities

Here are important scenarios to consider when navigating your immigration status after divorce:

1. Conditional Green Card Holders

If you hold a conditional green card through marriage, your residency status is tied to your relationship with your U.S. citizen or lawful permanent resident spouse. Conditional green cards are typically issued to marriage-based green card applicants who have been married for less than two years at the time their residency is approved.

To maintain your status, you and your spouse are generally required to file Form I-751 (Petition to Remove Conditions on Residence) jointly within 90 days before your two-year conditional period ends. If you divorce before this, you can no longer file jointly but may still request a waiver, depending on your circumstances. Examples of accepted grounds for a waiver include:

• Marriage entered into in good faith: You must prove that your marriage was legitimate and not solely for immigration purposes. Supporting evidence can include joint financial documents, pictures, or affidavits from friends and family.
• Abuse or hardship: If your divorce was preceded by abuse in the marriage, you may qualify for a waiver under the Violence Against Women Act (VAWA).

2. Non-Immigrant Visa Holders (e.g., Spousal Visa)

If your immigration status is tied to a spousal visa, such as a K-3 visa or H-4 visa, divorce terminates the basis for your status. Once divorced, you may need to leave the U.S. unless you qualify to change statuses, such as by pursuing an employment-based visa or a student visa. Consulting with an immigration attorney quickly is essential in these situations.

3. Pending Adjustment of Status Applications

If you are going through the adjustment of status process and divorce occurs before your green card is approved, your eligibility may be affected. For marriage-based applications, you must be able to demonstrate that the relationship was bona fide. If the relationship ends, severe scrutiny may be applied to your application.

Practical Advice and Legal Steps

While challenges exist, you can take proactive measures to protect your immigration status after divorce. Here are key steps to consider:

• Gather strong evidence to prove the validity of your marriage. Examples include shared tax returns, lease agreements, and photos of family events.
• File for a waiver of the joint petition if applicable, providing detailed and credible documentation to demonstrate your reasons for divorce and good faith marriage.
• Consider alternative visa options, such as a work visa or non-marriage-related green card category, if your marriage-based pathway is no longer available.
• Seek legal advice from an experienced immigration attorney to understand the full scope of your options, deadlines, and obligations. An attorney can strengthen your case by crafting persuasive arguments and effectively showcasing supporting evidence.

Moving Forward

Divorce does not have to be the end of your immigration story, but it requires careful navigation, preparation, and legal guidance. At Villarrubia & Rosenberger, P.C., we understand the personal and legal complexities of these situations.

If you are experiencing divorce and are concerned about your immigration status, consult with us today. Together, we can help you explore your options and work toward securing your future in the United States.