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How Can Divorce Affect My Legal Status?

How Can Divorce Affect My Legal Status?

By Zach Wallin 

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In this post, Attorney Zach Wallin, breaks down how divorce can affect a Permanent Resident’s Legal Status.

Many people have a misconception that if a person in the process of obtaining legal immigration gets a divorce they will automatically be deported.  This is, generally not true, but divorce can impact your immigration status depending on when you get the divorce.

Divorce Occurs before Permanent Residence Status is conferred:  If the divorce occurs before permanent residence status is granted to the foreign spouse a green card cannot be issued because the divorce ended the legal marriage and the foreign spouse cannot be granted legal status based on that marriage.

Divorce Occurs after the conditional green card is granted:   If the divorce occurs after the conditional permanent residence status is granted his/her conditional status may be revoked if the divorce occurred within two years of the conditional green card being granted.

Two years after being granted conditional status the parties must apply jointly to have the conditional status removed from the foreign spouse’s green card.   If the joint petition is filed timely and United States Citizenship and Immigration is convinced the marriage is still viable, the foreign spouse will have the conditional status removed from his/her green card.

If the couple has divorced prior to filing the joint petition at the two year mark then the joint petition cannot be filed.   At that point, the foreign spouse would need to file a waiver petition.   To get a waiver the divorcee will need to show that:  1.  the marriage was a marriage entered into in good faith and that the marriage was terminated at no fault to the immigrant (this is likely to be found if the couple lived together as husband and wife, if the couple had a child together, or if the couple owned property together); 2.  the immigrant would face extreme hardship if deported; or, 3. the immigrant was battered or treated with extreme cruelty by the spouse who was the U.S. citizen.

If the immigrant spouse does not file for the waiver he/she will most likely face deportation proceedings.

Divorce Occurs after the unconditional green card is granted:

If an unconditional green card has already been granted, the divorce will not negatively impact the green card itself.

The timing of the divorce may still impact when you can apply for US citizenship.   If the divorce occurs prior to the immigrant’s application for US citizenship, the immigrant must have been a US permanent resident for 4 years and 9 months before he/she is eligible to apply for citizenship.   If the marriage had remained intact then the immigrant could have been eligible for citizenship after waiting only 2 years and 9 months.  So, if you have an unconditional green card, your divorce won’t affect your green card status, but it will affect when you can apply for US citizenship.

Will my Immigration Status be affected if my spouse and I are only separated?

If you are only physically separated and living in different houses, then your immigration status will not be affected by the separation.  If, however, you are legally separated, your immigration status can be affected because USCIS may see the separation as a termination of the marriage for immigration purposes.

Family Law and Immigration Law are two entirely different specialties.   When you work with Zach Wallin to help resolve your family law issues, he will immediately contact Jacob J. Sapochnick, Esq. to help with any and all immigration law needs you may have.  I am confident this teamwork approach to your unique situation will help you get the best legal advice possible.  I look forward to your call!

Zach Wallin is a family lawyer who services Orange, San Diego, Riverside, San Bernardino, and Los Angeles counties.  Zach is a graduate of Chapman University School of Law.   He focuses his practice on divorce litigation, custody battles, spousal and child support, property division, and prenuptial agreements.  Contact his firm by visiting The Wallin Family Law Group or reach him directly at 949.294.9475.