Immigration Law and Divorce Basics

Pro-immigration activists hold a demonstration near the White House calling on President Biden to secure a path to citizenship for immigrants living in the country illegally, in Washington, U.S., April 28, 2021. REUTERS/Kevin Lamarque

A divorce is a difficult situation. When you add immigration to the mix, things really become complicated. It’s important to be aware of the ways a divorce can affect a person’s immigration status. It has been estimated that close to 400,000 people in the United States marry individuals from foreign countries each year taking steps to secure permanent residency for their foreign-born spouses. The law states that spouses of U.S.-born citizens are considered “immediate relatives.” This conditional status provides a much faster route to getting a green card.

In the event that a marriage fails, you will need to consider immigration issues and how they should be handled. This is especially true when there are children involved. In most cases a foreign-born spouse going through the divorce process will be granted conditional permanent residence. This means that he may continue living in the U.S. for two more years. This provides time to take the next steps necessary to obtain permanent residency.

If the foreign-born spouse has already obtained a green card before the marriage ends, she has what is considered unconditional permanent residence. The only immigration issue that may occur is a delay in obtaining full citizenship status. If the marriage to a U.S. citizen ends within three years, and the immigrant spouse has not secured a green card in a span of five years, he has to wait five more years before being able to file an application for a green card.

If an immigrant spouse was in the process of getting a green card before the marriage ended, he will not be able to secure one based on marriage. Divorce means that the spouse no longer has conditional permanent residence status. If the marital union occurred in good faith, a foreign-born spouse can apply for a waiver of termination. This is confirmation that the marriage was valid and the immigrant spouse was not at fault for failing to obtain permanent legal resident status.

A Houston immigration attorney can assist with the application process. A spouse must be able to prove that the waiver is necessary. The applicant will also be required to participate in an immigration interview. Reasons for obtaining a waiver include:

* Providing proof that the marital union was valid (proof can include shared marital property, or children resulting from the marriage)

* Proof that the immigrant spouse will suffer extreme hardship if sent back to the country of origin.

* Proof of having suffered extreme cruelty or abuse from a U. S.-born spouse.

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