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Immigration and Divorce

By Theodore Sliwinski, Esquire

Each year, more than 400,000 citizens of the United States marry foreign-born persons and petition for them to obtain permanent residence in the U.S. Spouses of U.S. citizens is considered "immediate relatives" under the immigration laws, and are exempt form all numerical limitations. In other words, marriage to a U.S. citizen is the fast lane to a green card.

A fundamental doctrine of divorce and immigration cases is that a person who immigrates to the U.S. based on a marriage that is less than two yeas old at the time of his/her admission will receive conditional permanent residence status. The conditional permanent residence status lasts for two years. To attain full permanent residence status, the conditional resident must file a petition with the INS prior to the second anniversary of his/her admission as an immigrant. At that time, if the marriage is still intact then the immigrant spouse will receive a full permanent residence. Conversely, if the marriage is dissolved then the immigrant spouse will lose his/her immigrant status and become deportable.

How immigration applications based on marriage are treated after a divorce
When an immigration application that is based on marriage is pending before the INS, then the immigrant spouse will be considered out of status upon the dissolution of the marriage. There is also a strong possibility that the alien spouse could be subject to removal proceedings after the divorce case is finished.

A person who immigrations to the United States based on a marriage that is less than two years old at the time of his/her admission will receive conditional permanent residence. If the marriage is still intact at the second anniversary, then the immigrant spouse will receive a full permanent residence. Meanwhile, if the marriage ends in divorce, then the immigrant spouse will lose his/her immigrant status and become deportable. Where the qualifying marriage has ended in divorce or annulment during the two-year conditional residency period, then the conditional resident may apply for a waiver of the joint filing requirement based on the parties' good faith when they entered into the marriage.

Conditional Residence Status
Conditional resident status is conferred on an alien to the United States or a lawful permanent resident in a marriage that is deemed bona fide and that is less than two years old. The status is conditional for another two yeas. If the marriage last more than two years at the time for application of status, then the alien can be approved for lawful permanent status without any condition.

The U.S. citizen may petition for their alien spouse to receive an immigrant visa. An alien with an approved immigrant visa petition may be issued an immigrant visa by a U.S. consular post abroad and use the visa to be admitted to the U.S. as a permanent resident. Also, some aliens already in the U.S. may use an approved immigrant visa a petition to gain permanent resident status through an adjustment inside the U.S. The INS will interview the couple to determine the bona fides of the marriage.

Conditional resident status becomes permanent after the second anniversary of the residence status if the alien and the petitioning spouse jointly file an I-751 petition that is signed by both parties. This is filed with ninety days of the second anniversary of the granting of conditional resident alien status. Thereafter, they are interviewed by an INS examiner to see if their marriage is legitimate.

Will a divorce affect the issuance of my conditional green card?
Aliens who obtain their permanent residence based on their relationship with a U.S. citizen spouse or an alien parent's U.S. citizen spouse are granted conditional permanent residence if the qualifying marriage took place within two years prior to the date permanent residence was conferred. Conditional permanent residence means that the permanent residence is subject to termination if it is found that the qualifying marriage was a sham marriage or a marriage that was entered into only for purposes of obtaining an immigration benefit. Other than the conditional permanent resident being subject to having his status terminated, he is afforded the same rights as is any other permanent resident. Within ninety days before the two-year anniversary of the permanent residence being granted to the alien, the alien and spouse must apply to have the condition removed.

When permanent residence is granted conditionally to an alien spouse, that conditional permanent residence may be terminated within two years from the date permanent residence was granted if the marriage has been terminated through divorce. This rule also applies to the child of the alien spouse who obtains his conditional permanent residence based on the marital relationship of his parent. In other words, the general rule is that divorce terminates the conditional permanent residence. Nevertheless, in this scenario, it is possible for the alien to obtain a waiver of the termination. A waiver of the termination is granted to the alien if the alien can show that the marriage was a union in good faith and the alien was not at fault for his failure to file the joint petition to remove the condition. Generally speaking, if the conditional permanent resident can show that the marriage was entered into in good faith, it is presumed that he was not at fault for failing to file a joint petition. Two ways to show that a marriage was entered into in good faith are proving that the couple had a child together and producing evidence that the couple owned the property jointly.

Will a divorce affect an alien's immigration status after he or she has obtained unconditional permanent residency?
Divorce does not adversely affect an alien's immigration status after the alien obtains permanent residence unconditionally. The only effect divorce may have on an alien at this stage is that it may delay the alien in obtaining citizenship. If a permanent resident is married to a U.S. citizen, he has a three-year residency requirement for U.S. citizenship as opposed to a five-year residency requirement. In order to benefit from the shorter residency requirement, the alien must be married to the U.S. citizen for at least three years before the exam date. Therefore, if the alien is divorced before being married to a U.S. citizen for at least three years before his exam date, and he has not been a permanent resident for five years, he will then have to wait until he has been a permanent resident for five years before he is eligible to apply for U.S. citizenship.

What if I am a victim of marriage fraud. Can I contact the INS and request that my spouse be deported?
I have encountered many nasty divorce cases when an embittered spouse gets dumped by an alien spouse. The immediate reaction by the U.S. spouse is to try to deport the alien spouse. My advice to the U.S. spouse is to chalk it up as a bad experience and to avoid being vengeful. I also advise the U.S. spouse that he probably was aware of the risks of the marriage, and that he has to accept the failure of the marriage.

If the alien spouse is seeking to "shake down" the U.S. spouse, then I may advise that an annulment be pursued. Fraud in the inception of marriage is grounds for an annulment. An allegation of marriage fraud may be made to obtain an annulment by the spouse of an alien who gained legal resident status through marriage. It is very important for an alien spouse to vigorously contest any annulment based on fraud. An annulment complaint can really "soften up" an alien spouse. This strategy can really work wonders, and significantly reduce an alien spouse's demands in any divorce case.

Unfortunately, there are risks with this strategy. A U.S. citizen could face criminal liability for a marriage fraud allegation. It is important to inform any U.S. citizen that if they had any knowledge of an alien's intention to marry in order to gain legal resident status and that citizen participated knowingly in the sham marriage, criminal provisions subject U.S. co-conspirators to a felony prosecution under 18 U.S.C. Section 1001.

To conclude, the best strategy for a U.S. citizen to follow is to avoid the obvious impulse to try to deport your ex-spouse. You don't have to continue to sponsor his/her immigration application. However, you should avoid the impulse to try to "nuke" his/her application. If the alien spouse is seeking excessive alimony and unrealistic demands for equitable distribution, then the U.S. citizen may want to pursue an annulment. Alternatively, the U.S. spouse could insert a count of marriage fraud in the divorce complaint. It would be very rare for a U.S. citizen to be prosecuted for marriage fraud. However, the laws do exist on the books. If an alien spouse is money hungry in a divorce case, then pursuing an annulment or alleging fraud in the divorce complaint can really put a "monkey wrench" in his/her plans.

Theodore Sliwinski, Esquire, dedicates his practice to providing quality and very affordable legal services to the public. He believes that everyone should be able to afford quality legal services. He has twenty-one years of legal experience and has handled hundreds of divorces, bankruptcies, traffic violations, and criminal and civil cases. He is headquartered in central New Jersey. Affordability, accessibility, responsiveness and personal commitment is what every client receives.

Mr. Sliwinski can be contacted by phone at (732) 257-0708 or
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