Immigration and Divorce: The Fallout

 Posted on June 17, 2015 in Immigration

For those who marry a U.S. national, immigration to the United States is a common occurrence. Often, it is the method by which immigrants obtain either a green card (Lawful Permanent Resident [LPR] status) or citizenship. However, in some situations, if your divorces your foreign spouse, it may adversely affect his or her immigration status.

While the Application is Pending

Generally speaking, a divorce during the application process will affect your visa or green card application because your spouse’s sponsorship must be rescinded. When someone sponsors you for a green card or for a visa, he or she is saying that they agree to vouch for you and be responsible for your financial upkeep. Only certain family members may serve as a sponsor (if you seek LPR status via family petition, as most do); an ex-spouse is unfortunately not one of them.

If your spouse has submitted his or her I-130 (Petition for Alien Relative) but no reply has been received at the time of your divorce, you may not pursue that petition any further, because your sponsor has effectively been disqualified. The I-130 merely begins the immigration process; true progress does not occur until you have been interviewed and investigated. While no binding presumption will be attached to you, United States Citizenship and Immigration Services (USCIS) may take a divorce or withdrawal of your petition as a point against the veracity of your marriage.

The other common scenario where divorce might play a role is if you have been approved for conditional permanent residence. Sometimes, if a foreign national has been married to a U.S. citizen for less than two years, USCIS may grant LPR status on a conditional basis, usually for two years. If their concerns are addressed and the person appropriately files for the conditions to be lifted, then a full, unconditional green card is issued and the person becomes an LPR. However, part of the appropriate filing to lift the conditions is a showing that your marriage is continuing and legal. If you divorce or receive an annulment before that two year period has passed, you will become deportable, as you will be out of legal status according to USCIS.

After the Application is Approved

Once your application for (unconditional) permanent residence has been approved, there are very few adverse consequences for a foreign national divorcing his or her U.S. citizen spouse. The only consequence of any note is that it may take you longer to obtain citizenship than it would if you were still married. Citizenship requires that you have 5 years of continuous residence in the U.S., but if you are married to a U.S. citizen, only three years are required.

It is important to note that at the time of your citizenship application, USCIS may review your file again to reassure themselves that nothing was fraudulent or deceitful, but it is very rare that this review results in any negative consequences unless you are actually guilty of fraud. Still, you may be asked to provide more information to USCIS before your citizenship application can go forward.

An Immigration Attorney Can Help

If you are going through a divorce, worrying about your immigration status is likely the last thing on your mind. The skilled Chicagoland immigration attorneys at Mevorah & Giglio Law Offices can help handle this complex process, ensuring that you are free to focus on your divorce being handled appropriately. Contact us today via telephone to discuss your options.