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How Does Divorce Impact Immigration Status?

In 2016, 81,486 immigrant (i.e. “green card”) visas (IR-1) were granted to spouses of U.S. citizens. Another 51,979 conditional green card visas (CR-1) were granted to spouses who had been married to Americans for less than two years. These immigrants came from more than 180 different countries around the world.

Green cards and conditional green cards permit the resident spouses to live and work in the U.S. and otherwise enjoy the benefits granted to a permanent legal resident. Like other immediate relative visas, a marriage-based visa can open the path to citizenship for the immigrant spouse.

However, many permanent residents and those hoping to join family members in the U.S. are uncertain about the impact of divorce on their immigration status.

Divorce after a Green Card Based on Marriage

There are some important considerations for those planning to divorce after receiving a green card based on marriage to a U.S. Citizen. The first is that the legitimacy of the marriage may be subjected to additional scrutiny at a later point, such as during the naturalization process, particularly if the divorce comes soon after the green card was issued and/or the marriage was short-lived.

The second consideration, primarily of concern to the sponsoring spouse, is that divorce does not terminate the citizen spouse’s financial sponsorship obligation. That means that a divorced spouse remains responsible for the support of the holder of a marriage-based green card until the immigrant spouse becomes a U.S. citizen or 10 years pass.

Divorce and Conditional Green Cards Based on Marriage

The divorced holder of a marriage-based conditional green card may still petition to remove green card conditions, but he or she will be required to request a waiver. Although conditional permanent residents may be hesitant to divorce for fear of losing status, he or she has options to retain his or her green card.

The immigrant spouse may request a waiver and proceed on his or her own only under specific circumstances, such as when domestic violence is involved, when the couple has divorced, or when he or she will experience “extreme hardship” if he or she returns to his or her home country. In any case, it is important to note that the ability to proceed with a waiver depends on providing extensive proof that the marriage was entered into in good faith.

Of course, any change in legal status has ramifications, so the best course of action is to talk to an immigration lawyer before taking any action. The attorney can advise you as to the best way to proceed with removal of conditions and the termination of your marriage.

The Impact of Divorce on Adult Children

There is one area of family-based immigration in which divorce is generally advantageous. This involves the sponsorship of adult children by a U.S. citizen or permanent legal resident. U.S. citizens and green card holders can petition for single adult sons and daughters (i.e., children over the age of 21). Only U.S. citizens, though, can petition for a married son or daughter. So, if your parent is a green card holder, he or she can petition for you as a single adult son or daughter once you divorce. Although U.S. citizens can petition for married sons or daughters, the process can be long. Married adult children have a lower priority than single adult children. Depending on the country of origin, it may take a decade—or even much longer—to obtain a visa number for a married adult child. Once a married son or daughter divorces, he or she becomes a single son or daughter. While unmarried adult children must also wait for visa numbers, they receive higher priority—a difference that can mean obtaining a green card years earlier.

The Impact of Divorce on Non-Immigrant Visa Holders

Spouses of non-immigrant visa holders, such as H-1B or F-1 visa holders, typically hold a visa status that is dependent on their marriage to the non-immigrant visa holder. However, upon divorcing, the dependent spouse loses his or her non-immigrant visa status. There may be options to continue living in the U.S. if the dependent spouse qualifies for a different type of visa on his or her own.

Talk to an Attorney Experienced with Family-Based Immigration

Anyone who is in the U.S. on a visa or is in the process of applying for admission to the U.S. should consult with an experienced immigration lawyer before making any change in legal status or family relationship. It is in your best interests to thoroughly familiarize yourself with the impact of any such decision before taking action.