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How Will a Divorce Impact My Immigration Status?
Oct 05, 2022

How Will a Divorce Impact My Immigration Status?

Divorce is often stressful, especially when a spouse’s immigration status relies on their marriage. Since a marriage must have been made in good faith and lasted more than two years after your approval for conditional residence, the noncitizen spouse may face challenges in gaining permanent residency if they are divorcing. However, by exploring the potential issues you may face before your divorce is finalized, it may be possible to avoid some of the most serious outcomes. 

If you are living in the U.S. as a conditional resident and plan on getting a divorce, contact an immigration attorney at Villarrubia & Rosenberger, P.C. to discuss your case. 

Issue: Most Divorce Petitions Allege Bad Faith

The divorce process begins after a spouse files a petition to the courts. There are two main ways the divorce ends: either the spouses establish a Marital Settlement Agreement on the various issues of the divorce, or the case is brought to a judge at a hearing, who then issues a divorce decree. 

Commonly, when a divorce proceeding affects an immigration status, the opposing party may add “bad faith” as grounds for the divorce. This means that the other spouse swears under oath that the marriage was only done so that the noncitizen spouse receives a green card. The issue often occurs when the divorce is settled rather than continuing to a court determination. After the judge decides that the agreement is valid and submits it to court records, the divorce is officially settled and there’s no opportunity to unto the citizen spouse’s bad faith allegations. 

However, with the help of an attorney, it may be possible to work around the wrongful allegations. Even if a spouse alleged bad faith, the allegations are not legally defined as “facts,” meaning you can still provide evidence to demonstrate the marriage was made in good faith. Ultimately, the divorce decree should be filed to immigration authorities alongside Form I-751 to remove conditions for your residency.      

Submit a Request for Waiver of the Requirement to File a Joint Petition

To seek a green card after finalizing a divorce when you’re still a conditional resident, you will need to submit a waiver to USCIS for the requirement to file Form I-751 jointly with your spouse. In doing so, you may request that your conditional residency becomes permanent residency without your spouse’s support. This waiver must be filed alongside the divorce decree and the evidence demonstrating that your marriage was made in good faith. 

After you’ve submitted your waiver request and Form I-751, you must wait for USCIS to complete their review. USCIS will then issue you an extension of your conditional residency while you wait for them to finalize their decision regarding your request for permanent residence. 

Will My Divorce Affect My Progress to U.S. Citizenship?

An immigrant who has lived with and been married to a U.S. citizen can be naturalized once three years pass after receiving a green card. However, if you divorce your U.S. citizen spouse, this exemption no longer applies to your circumstances, and you will need to wait the typical five years before becoming naturalized. This is true even if you file for divorce after you’ve become a permanent resident. 

Contact an Immigration Attorney Today

Immigration is a complex process, especially when you are planning for a divorce. Our attorneys at Villarrubia & Rosenberger, P.C. are available for a consultation. Call today for advice specific to your case. 

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