If you are in the United States (U.S) on a visa that was granted based on your spouse’s application, a divorce or separation may affect your lawful status and ability to stay in the U.S. You must be careful in choosing whether and when to separate or get a divorce. This article will help you weigh your options.
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What is the difference between divorce and separation?
To protect yourself and your immigration status, you must know the difference between divorce and separation. A divorce is when a court legally ends a marriage. Separation, on the other hand, usually allows a couple to remain legally married but live apart.
Divorce law varies from state to state. Some states, including Maryland, have both “absolute divorce” and “limited divorce.” (see The Difference between Absolute and Limited Divorce in Maryland) Other states give spouses different rights under an informal separation than under a formal separation. In some states, a formal separation may become a divorce after a certain amount of time.
Regardless of what the spouses intend when they separate or enter a limited divorce, the U.S. Citizenship and Immigration Service (USCIS) or Board of Immigration Appeals (BIA), will interpret state law and decide whether or not a separation or divorce ended the marriage.
If you are facing a divorce or separation, it is wise to find a lawyer who understands how family law affects immigration. Look for a lawyer who has experience with cases like yours and who can help you understand your options.
Will my status be affected?
Whether, and how, your immigration status is affected depends on many factors including:
- your spouse's status,
- the immigration benefit you received,
- and how and when you received the benefit.
The following provides an overview of the potential effects based on immigration status. If you are not certain of your status, you may wish to contact an experienced immigration attorney.
Status: Approved for permanent residence (Permanent Green Card)
Who you are: You submitted an application for permanent residency during the final 90 days of your conditional residency. You were still married at the time of you application and your application for permanent residency was approved.
Potential Effect: If you already have a green card and are a permanent resident at the time of the divorce, the divorce should not change your status.
While your divorce may not affect your immigration status, it will affect the time you must wait before applying for your permanent resident status. Because you are no longer married, you will have to wait 5 years to apply, versus the 3 years if you were still married. Once you are eligible to apply, USCIS will review your entire immigration history, and you will have to prove that your marriage was not fraudulent.
Proving your marriage was in good faith will require you to provide supporting documents that contain evidence of your life together and its legitimacy. If you cannot prove that your marriage was legitimate and not simply to obtain a visa, USCIS can deny your citizenship and may even trigger removal proceedings.
Status: Conditional Residency (Conditional Green Card)
Who you are: You used your spouse’s status (as a U.S. citizen or lawful permanent resident) to immigrate within 2 years of your marriage. This includes entering the U.S. and adjusting your status while in the U.S.
Potential Effect: If your marriage ends, you may lose your conditional resident status and become deportable.
If you got conditional resident status through marriage, that status is limited to 2 years. To become a permanent resident, you need to prove you are still married after 2 years. To do so, you and your spouse must file a Petition to Remove Conditions (Form I-751). This petition is a joint petition requiring both spouses to file together. You must file this form during the final 90 days before the date that the “green card” expires. (The date the “green card” expires is printed on the card.)
Because the Petition to Remove Conditions is a joint form, the process becomes more complicated if you are no longer married. The USCIS may question whether your marriage was genuine or whether you committed marriage fraud to get a permanent residency status. A divorce may make it harder to become a permanent resident, but it is still possible. You must show that you married in "good faith." That means that you intended to live together as spouses when you married. To show this, you may submit documents showing that you shared a normal married life with your former spouse. This could include having a joint lease, a joint bank account, joint credit cards, or coverage under the same auto or health insurance policies.
In addition to proving your marriage was in good faith, you will also need to request a waiver of the joint filing requirement. You will still have to file a Petition to Remove Conditions, but the waiver will allow you to file it on your own.
Conditional residents have a 3 year residency requirement to earn U.S. citizenship as opposed to the standard 5 year residency requirement. To receive the shorter residency requirement, you must be able to prove that you were married in good faith to a U.S. citizen or permanent resident for at least 3 years. If you get divorced before then, you will have to wait 5 years to apply for U.S. citizenship.
Status: Dependent visa
Who you are: Your immigration status depends on your spouse’s current visa or pending application.
Potential Effect: If you have a dependent visa, you may lose your immigration status when your divorce is finalized.
For example, if you are married to an H1B visa holder, and your spouse has an approved adjustment of status application, but the priority date is not yet current, a divorce or separation may disqualify you as a "dependent." In this case, you may not be able to obtain a green card once the priority date becomes current.
In addition, your Employment Authorization Document (EAD) may be revoked. However, in situations such as an abusive relationship, you can work with a reputable immigration attorney to file for a work permit that applies only in those circumstances. But in most cases, you will have to leave the U.S. or apply for a different visa that is free from a spouse sponsorship.