Immigration, Marriage, and Divorce: When Your Spouse is From Another Country
A divorce between a U.S. citizen and an immigrant can be substantially more complex than a divorce between two people born in the US, which is why it’s usually necessary for couples to dive into the details as early as possible. When dealing with this type of situation, it is important to consider whether the immigrant spouse’s immigration status will remain in place after the marriage, and how that status could be affected in other ways. Plus, your residence, property division, and child custody could all be impacted if either you or your spouse relocates based on immigration status.
To ensure you are ready for your upcoming split, make sure you know everything you need to about how immigration plays into a divorce.
Understanding Immigration Status
If your spouse gained immigration status through your marriage, the divorce could impact that status. The U.S. Citizen and Immigration Services (USCIS) could suspect the marriage was fraudulent and only took place in order to obtain a green card for the migrant spouse, especially if the marriage was relatively short.
In accordance with U.S. law, an immigrant spouse will be granted conditional residence in the U.S. during the first two years of the marriage. After a couple has been married for two years, however, the immigrant spouse can seek approval for a permanent residence.
The Immigration Application
When a U.S. citizen marries an immigrant, the resident spouse may act as the sponsor for their spouse’s immigration application, especially if their marriage is the reason for the immigrant spouse’s move to the United States. However, once you choose to divorce, you may not wish to remain your ex-spouse’s sponsor. As a sponsor, you are responsible for supporting the applicant and his or her dependents—which is something you might not wish to do once your marriage has ended. Also, if the application was filed based on the condition of your marriage, the immigrant spouse may need to file additional paperwork to retain lawful residency, and perhaps need to qualify under a new provision of the immigration law.
The core of the issue with immigration and marriage from the immigration standpoint is whether the marriage was real or bona fide. If you are able to prove that your marriage was genuine and not just used to gain legal status for the immigrant spouse, then the USCIS will likely grant the immigrant spouse legal residency even if the marriage was less than two years old. In any case, following the law and filing the correct paperwork is key in securing legal residency after a divorce. It is also very important for the immigrant spouse to work with a qualified immigration attorney throughout the divorce process to access their personal situation and options. The earlier the immigrant spouse speaks to their immigration counsel, the better as the immigration attorney may advise on the timing of a divorce filing or ask for the filing to be a legal separation rather than a divorce.
If your marriage involved immigration, whether you were the immigrant or your spouse was, you need to make sure your interests are protected. If you are divorcing a spouse who immigrated to the United States to marry, you need to remove yourself from the immigration application to prevent any ongoing responsibility, but you also want to do so in a way that does not raise any concerns that you took part in a potentially fraudulent marriage. Conversely, if you are the immigrant spouse, you need to make sure you are ready to secure legal residency separate from your spouse so that you can remain in the U.S. lawfully. Both spouses should work with qualified divorce and immigration counsel to ensure that both steps of the process are being handled correctly to help prevent any unintended circumstances for either spouse.
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