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How Divorce Affects Your Marriage-Based Permanent Residence Case

divorce-impacts-marriage-green-card-cases

Marriage is not always forever.

Every relationship has ups and downs. Sometimes couples are faced with challenges that lead to separation or 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 divorce on many marriage green card cases, causing havoc in the lives of many immigrants and their children.

As a result, besides discussing the impact of a failed marriage in such cases, this article outlines how immigrants, trapped in divorce, can nonetheless preserve their immigration dreams.

Green Card Marriages: The Relationship Between Your Immigration Status And Divorce (A Three-Part Analysis)

To assess how a divorce could impact marriage-based permanent residence, we need to address the timing of the divorce. At what stage of the green card process did the divorce take place?

There are three different stages of the green card process we need to explore.  Since the effects of a divorce at each stage vary, they must be evaluated separately.

Here are the three stages we’re going to look at:

  • A divorce after the I-130 visa petition approval, before permanent residence is granted
  • A divorce that occurs during the two-year conditional permanent residence stage
  • A divorce after permanent residence is granted, when a petition for citizenship is filed
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What Happens If A Couple Divorces After  The Spousal Petition Has Been Approved, 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 spouse any rights. Whether the I-130 petition was filed by a United States citizen or a permanent resident spouse, if the marital union ends at this stage before green card status is granted to the immigrant spouse, filing for permanent residency is not possible any longer.

In other words, because marriage is the basis for the granting of a green card, the divorce which terminate the marriage simultaneously ends the immigrant’s eligibility for permanent residence. The petition, for purposes of a marriage green card, is rendered dead.

On the other hand, after your immigrant petition has been approved, 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 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 marriage was legitimate, and it only ended because you and your spouse 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 immigration benefits 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, since older petitions could be very important in a future green card case, I strongly encourage you to hold onto your petition, even after a divorce, and to save it in a safe place.

Other than this possibility, the petition is dead for now.

These rules can be tricky so if you think you can benefit from grandfathering, you should not hesitate to discuss this possibility with experienced immigration counsel.

What Happens If The Couple Divorces During The Two-Year Conditional Residency Period?

Many immigrant relative petitions are filed by U.S. citizens soon after the couple marries.

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 petition for a spouse is approved, the marriage green card case moves to the second stage. The couple’s interview is scheduled by USCIS shortly afterwards and the immigrant spouse receives a conditional green card – which means the green card has a two-year limit.  This step is designed to weed out fraudulent marriages.

This limit is imposed because the marriage was less than two years old on the date that the conditional green card was granted.  In the view of immigration authorities, short term marriages are suspect.    .

Before the second anniversary of the grant of conditional permanent residence, the couple is required to jointly file a petition to remove the conditions from the green card. If USCIS believes the couple’s marriage is authentic, the removal of the conditions on the immigrant spouse’s green card will be granted.

But what happens if, prior to the removal of conditions, the couple divorces?

The couple is supposed to file the petition to remove the conditions jointly.

Ironically, if the divorce is finalized before you file the petition to remove the conditions on your green card, you may be better shape to file alone than if your divorce is still pending.

Why?

Because a divorce is one of the three grounds to remove the conditions on your green card without your U.S. citizen spouse:

  • Your divorce is finalized and filing jointly wiith your ex-spouse is not a possibility
  • You were the victim of domestic violence perpetuated by your former spouse
  • You will suffer extreme hardship if your permanent residence status is terminated

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 just because you’re getting a divorce, immigration officials 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 marriage was in good faith and not a marriage sham. 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 divorce being a reason for filing alone applies only to a completed divorce.

Generally, if your divorce proceedings started prior to the removal of conditions filing date, the government will allow a short extension, up to about three months, for proof of divorce completion.

Once your divorce is finalized and a judgment has been entered by the state court, you must file proof of the divorce.

The government 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 on your permanent residency will be granted by the government.

But let’s say the divorce is ongoing, not yet finalized, within the allotted time, or no divorce papers have been filed and you are merely separated from your spouse.

Should this be your situation, you will need to rely on one of the other two grounds to file your petition alone and win the removal of the permanent residency conditions.

You will need to demonstrate that either (1) you have been a victim of domestic abuse by your U.S. spouse or (2) you will suffer extreme hardship if permanent residence status is not granted.

And, of course, you will need to show the marriage was genuine.

What Happens To Permanent Residence If A 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 resident status.

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. However, if you’re no longer married, an immigrant spouse has to wait until the fifth anniversary of being granted permanent residence 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 impacting your green card status 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 obtain permanent legal status.

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 immigration petition or application, 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 USCIS would spot check such issues on selected cases. Now, the government is reevaluating the circumstances of a naturalization applicant’s immigration past and green card marriage in greater depth and far more often.

Here’s an example.

Recently, a woman visited my office to discuss naturalization.

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 divorce.

She had been married 12 years.

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What happened at the interview?

She was questioned, once more, about her marriage and the suspicion that it 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.

Prefer Podcasts? Tune In To Hear Carlos Discuss The Impact Of Divorce On Green Card Marriages

Conclusion: Take Caution To Protect Your Immigration Status In A Divorce

A divorce doesn’t have to mean the end of your immigration hopes and goals.

Depending on the stage of your immigration proceedings, a divorce will have a different effect on your green card status.

At the petition stage, a divorce 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 jeopardy, but 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 . . .

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