Rochester, MN
888-399-7281 507-218-7935
St. Charles, MN
507-932-4461

Top 10 questions on how your divorce may affect your immigration status

Going through a divorce can be enough stress without the added element of immigration issues. While all your time and energy may be focused on terminating your marriage, you cannot neglect how this change in your relationship may affect your ability to remain in the United States after your divorce. Here are ten common questions and answers which arise when divorce and immigration intersect:

Going through a divorce can be enough stress without the added element of immigration issues. While all your time and energy may be focused on terminating your marriage, you cannot neglect how this change in your relationship may affect your ability to remain in the United States after your divorce. Here are ten common questions and answers which arise when divorce and immigration intersect:

  1. Will separation from my spouse affect my immigration benefits?
    Generally, no. A separation in your marriage does not constitute a termination of your marriage and will not affect your immigration status. An exception to this would be if you lived in a state where an extended legal separation automatically turns into a divorce after a period of time. In these instances, your immigration status would be terminated if it is dependent on your marriage.

  2. Will my divorce affect my non-immigrant status?
    If your status is based on your marriage to a temporary immigrant (i.e. your current status is H-4, L-2, J-2) then your divorce would terminate your U.S. immigration status. In these cases, you would need to apply for another type of immigration status prior to the termination of your marriage if you would like to continue to remain in the United States.

  3. I have an approved family (I-130) petition based on my U.S. Citizen spouse and my application for permanent residency (I-485) is pending. Will my divorce prevent me from being granted permanent residency?
    Yes. Your eligibility for permanent residency status is dependent on your marriage to your U.S. Citizen spouse. If your marriage has ended prior to the granting of your permanent residency, you will no longer be eligible.

  4. My immigrant spouse has an approved employment-based immigrant (I-140) petition. Based on this, I have a permanent residency application (I-485) pending. Will my divorce affect my ability to be granted permanent residency?
    Yes. You are filing as a dependent of your spouse. Your ability to be granted permanent residency is wholly dependent on your marriage to your spouse. If that relationship is terminated through divorce, your right to permanent residency is also terminated.

  5. I am currently a conditional permanent resident ("green card" holder). Will my divorce have an affect on my status?
    Yes. If your marriage was less than two years old when you were granted permanent residency then you received a conditional green card. After two years as a conditional permanent resident, you and your spouse file a joint petition to remove these conditions. If you and your spouse are no longer together to file the joint petition, you may be eligible for a waiver. A waiver is available after divorce if it can be shown that the marriage was genuine and the immigrant spouse is not at fault for the failure to file the joint petition with their spouse.

  6. I am currently a permanent resident ("green card" holder). Will my divorce terminate my status?
    No. A divorce will not terminate your immigration status once you have been granted unconditional permanent residence.

  7. Will my divorce affect my ability to be granted U.S. Citizenship?
    Maybe. Immigration law allows you to apply for permanent residency three years after becoming a permanent resident if your residency was based on your marriage to a U.S. Citizen. If your marriage is terminated, you will need to wait five years before you can apply for U.S. Citizenship.

  8. Will a step-child lose their permanent residency which was obtained through their parent's marriage to a U.S. Citizen?
    No. Even though the marriage creating the step-parent relationship has ended, the child will remain a permanent resident so long as it is outside the conditional stage.

  9. I am a U.S. Citizen who petitioned and sponsored my spouse for immigration benefits. Will divorce end my obligations?
    No. While divorce will end your marriage, your obligation of financial support continues even after the termination of your marriage. The only events which end this obligation are (1) the immigrant becomes a U.S. citizen; (2) the immigrant works for over 40 quarters; or (3) death. For these reasons, you may want to consider your spouse to become a U.S. Citizenship during the divorce process.

  10. I believe that my immigrant spouse married me solely for immigration benefits.
    While an annulment is possible when there is marriage fraud. Marriage fraud related to immigration is taken very seriously for both the U.S. Citizen and the immigrant. If you are the U.S. Citizen, you may face criminal allegations and if you are the immigrant you should active defend yourself against any allegation of fraud in pursuit of an annulment or you will face immigration issues.

If you are divorcing your spouse and one of you is an immigrant, you should consult with an attorney who is knowledgeable on the consequences the termination of your marriage will have on your immigration status or on your obligations toward your immigrant spouse. Should you have any questions regarding divorce and immigration, please feel free to contact Susannah Nichols at nichols@ryanandgrinde.com or 507.282.8118.

No Comments

Leave a comment
Comment Information

Privacy Policy | Business Development Solutions by FindLaw, a Thomson Reuters business.