Marriage is not always forever.
Every relationship has ups and downs. Sometimes couples are faced with challenges that lead to separation and divorce.
The consequences of breaking up can be disastrous, especially for an immigrant spouse in a mixed status marriage.
In my permanent residence law practice, I’ve witnessed the devastating impact of marital ruptures on many marriage green card cases, causing dreadful havoc in the lives of many immigrants and their children.
Often, if not handled carefully, divorces can lead to fraud allegations when immigrants remarry.
As a result, besides discussing the impact of a failed marriage in such circumstances, this article outlines how foreign-born husbands and wives, trapped in divorce, can nonetheless preserve their immigration dreams.
Table Of Contents
- Green Card Marriages: The Relationship Between Your Immigration Status And Divorce (A Three-Part Analysis)
- What Happens If Divorce Occurs Before Permanent Residence Is Granted?
- What Happens If You Divorce Before The Conditional Residency Period Expires?
- What Happens If Divorce Takes Place After Green Card Status Has Been Granted?
- Conclusion: Take Caution To Protect Your Immigration Status In A Divorce
Green Card Marriages: The Relationship Between Your Immigration Status And Divorce (A Three-Part Analysis)
To assess how a dissolution could impact green card holders, we need to address the timing of the matrimonial split. At what stage of the green card process did the parting of the ways take place?
There are three different junctures we need to explore. Since the effects of a disunion at each phase vary, they must be evaluated separately.
Here are the three divorce and green card stages we’re going to look at:
- A divorce before permanent residence is granted, after the I-130 petition approval
- A divorce that occurs during the two-year conditional permanent resident period
- A divorce after permanent residence is granted, when applying for citizenship
What Happens If Divorce Occurs Before Permanent Residence Is Granted?
The first step in the family immigration process is filing an I-130 immigrant relative petition.
When the petition is approved, it doesn’t give the immigrant any rights. Whether the I-130 was filed by a United States citizen or a permanent resident spouse, if the marital union ends before a green card is granted, legal residency is not possible any longer.
In other words, because matrimony is the basis for the becoming a green card holder, the severance which terminates the marriage simultaneously ends the immigrant’s eligibility for such benefits. The visa petition, for purposes of a marriage-based green card, is rendered dead.
On the other hand, after your I-130 has been validated, if you separate but do not divorce before your green card marriage interview has taken place, you may be able to preserve your efforts to become a lawful permanent resident.
The Grandfathering Significance Of Immigrant Petitions
There is a slight caveat here you should know about the “death” of your petition. Allow me to digress for a moment.
If your wedding was legitimate, and it only ended because you and your partner learned, after living together, that your life styles, goals, or dreams were incompatible, the I-130 petition could still be good for limited purposes should the immigrant spouse ever marry again or become eligible for legalization through a child, parent, or sibling in the future. This is known as “grandfathering“.
It enables an immigrant, who entered without permission, to seek adjustment of status to permanent residence.
At the present time, this rule only applies to petitions filed before April 30, 2001. In my view, I think the 2001 cut-off date on this issue will change someday, perhaps to 2005, perhaps to 2010, and perhaps much later.
To be sure, these dates are not the law now. However, your older paperwork could be critical to your success in a future green card case. This is often true even 10, 20, 30 years after the union has ended.
Hence, I strongly encourage you to hold onto your approved I-130 alien relative petition. Save it in a safe place.
Other than this possibility, the spousal petition is dead for now.
These rules can be tricky so if you think you can avail from grandfathering, you should not hesitate to discuss this possibility with experienced immigration counsel.
What Happens If You Divorce Before The Conditional Residency Period Expires?
Many spousal-based petitions are filed by U.S. citizens soon after the wedding bells have stopped ringing.
That’s natural. A citizen marries an immigrant and wants to make that special person a part of their life. Why risk deportation? Why delay?
Once the I-130 is approved, the green card marriage case moves to the second stage.
After the newlyweds file an I-485 green card application, their interview is scheduled by USCIS shortly afterwards. The immigrant spouse receives a conditional green card – which means the privilege of of permanent residency has a two-year limit.
This step is designed to weed out fraudulent marriages.
The two-year restriction is imposed because the husband and wife duo was married less than two years on the date that the temporary green card was authorized. In the view of immigration authorities, short term relationships are suspect. .
Before the second anniversary of the conditional residence award, they are required to jointly file a petition to remove the temporal constraint. If USCIS believes the marriage is authentic, the removal of the conditions will be granted.
But what happens if, prior to the removal of conditions, the couple divorces?
The couple is supposed to file the I-751 petition to remove the conditions together.
Ironically, if the dissolution is finalized before you file the I-751, you may be better shape to file alone than if your divorce is still pending.
Because a final judgment of dissolution is one of the three grounds to remove the conditions on your green card without your U.S. citizen spouse.
The other grounds are based on domestic violence and extreme hardship.
To be sure, whether you’re divorced or separated, it will be harder to win the removal of conditions on your green card status if you file alone.
But it’s not impossible.
Don’t think simply because the happy bride and groom days have passed, immigration agents will assume your marriage is a fraud.
Rather, to ensure your marriage was bona fide, they will put you to the test to demonstrate its’ legitimacy.
This is not the time to let fear overcome your emotions. It’s time to dig in.
Whichever of the three grounds you use, you must prove that your nupitals were taken in good faith and your wedding ceremony was not a fraud. You will need to put in time and energy to prepare a solid package of supporting evidence.
It can be done.
To be specific, the rule regarding dissolution being a reason for filing alone applies only to a completed divorce.
If your domestic law proceedings started prior to the I-751 filing date, the government will generally allow a short extension, up to about three months, for proof of completion.
Once your family law matter is finalized and a judgment has been entered by the state court, you must file proof of the divorce.
USCIS will still request that you provide evidence to show the marriage was authentic.
Assuming you demonstrate that not only the divorce is completed, but also the marriage was real, your application to remove the conditions will be ratified by the government.
A special warning is necessary here. If your divorce was marked by hostile allegations, any admissions you made or findings issued by the court could cause major problems. See What Every Immigrant Needs To Know About Hostile Divorce Cases for more information on this topic.
But let’s say the dissolution is ongoing, not yet finalized, within the allotted time, or no formal domestic law pleadings have been filed and you are merely separated from your U.S. spouse.
Should this be your situation, you will need to rely on one of the other two grounds to file your I-751 petition alone and win the removal of the permanent residency conditions.
And, of course, you will need to show the marriage was genuine.
What Happens If Divorce Takes Place After Green Card Status Has Been Granted?
Many individuals believe that after a marriage-based green card is granted, a divorce has no effect on permanent residents.
That’s true . . . to an extent.
First, there’s an impact on when an immigrant can apply for citizenship,
If you’re still married to a U.S. citizen, you could apply to naturalize within three years of the grant of the permanent residency card. But when no longer in a marital relationship with the former companion, a husband or wife spouse must wait until the fifth anniversary of being granted lawful status.
The extra two years to file for naturalization is usually a minor inconvenience – but during the two extra years of waiting of waiting, an issue jeopardizing your ability to remain in the country could arise.
The most ominous possibility is commission of a criminal offense in the period between permanent residence and citizenship.
There’s another problem that could occur.
It holds equal, if not greater, potential to destroy your hopes to win naturalization.
Under the current administration, applying for citizenship unlocks the door for a second review of a person’s entire immigration history.
In short, relatively small unintended mistakes, like a misstatement on a past filings, could become the death knell of an immigrant’s legal residency.
This possibility, to be sure, existed before the advent of The Trump presidency. Yet, in my experience as a San Bernardino immigration lawyer, it seemed officers would spot check such issues on selected cases. Now, USCIS representatives appear to be reevaluating the entire history of naturalization applicants’ immigration past in greater depth and far more often. Such review includes past green card marriage applications.
Here’s an example.
Recently, a woman visited my office to discuss citizenship.
She had applied many years beforehand but lost. At that time, she and her husband were separated but living in the same household. They were not divorced.
She went to the naturalization interview and the officer questioned her about the nature of her marriage. Her application was denied on a suspicion of fraud.
Well, there was no marriage fraud and, in fact, she reconciled with her spouse afterwards. Three years went by and they broke up again. This time she moved out. This time she filed for dissolution.
She had been married 12 years.
What happened at the interview?
She was questioned, once more, about the full period of the courtship and matrimony, as well as the suspicion her 12-year relationship was based on a marriage sham.
She had to relive her immigration history from when she entered the country on a fiancé visa. Her application for permanent resident status and the joint petition to remove the conditions on her green card were probed extensively.
In my view, this type of scrutiny seems excessive. Yet, USCIS has a great deal of latitude to conduct such reevaluations under the current administration.
Fortunately, we presumed this level of questioning would occur and my client prepared properly to address the posed questions. She was diligent and spent time studying the dates and events significant to an agency fact-finder and she passed the interview with flying colors.
The moral to the story?
Don’t assume that your divorce will not have any effect on your citizenship application.
Conclusion: Take Caution To Protect Your Immigration Status In A Divorce
Marital discord and break-up doesn’t have to mean the end of your dreams to become a lawful permanent resident and U.S. citizen.
Depending on the stage of your immigration proceedings, a divorce will have a different effect on your green card status.
At the petition stage, dissolution means the end of your immediate case. If you’re facing the removal of conditions, your case is not over, but you need to move forward cautiously.
On the other hand, at the naturalization stage, your green card status is not in direct danger. Still, you should carefully review your entire immigration history for any potential problems related to earlier filings.
Moreover, divorce does not mandate non-communication with an ex-spouse. In many instances, a former husband or wife can be your best ally when you’re responding to immigration concerns.
After all, when all is said and done, the end of your marriage may be the beginning of a new immigration future.
Ready to take a serious and honest look at the strengths and weaknesses of your immigration case? Let’s get started with a personalized strategy and planning consultation . . .