How Divorce Can Affect Your Immigration Status

Divorce can raise unique questions for immigrants living in the U.S. If your spouse sponsored you, or if your residency depends on your spouse’s job, separating from your partner can create anxiety about whether you will be able to maintain your residency in the U.S. and continue on your path to naturalization.

If you are an immigrant considering divorce, your immigration attorney and your divorce attorney should work together to minimize any negative impact of separation. Depending on where you are in the process of gaining U.S. citizenship, divorce can affect your immigration status and influence the time it will take to become a citizen. Still, it doesn’t always mean immediate deportation or loss of status.

Divorce as a Permanent Resident

Most permanent residents who possess a U.S. green card do not have to worry that divorce will affect their immigration status. If you are a lawful permanent resident with a 10-year green card, divorce or separation will not affect the renewal process or your immigration status. If you legally change your name after divorce, you can update it on your green card by submitting Form I-90 with a copy of the legal name change document.

However, a permanent resident who divorces within three years of gaining residency may have a lengthier citizenship process. Immigrants who are married to and living with a U.S. citizen have a significant advantage: they only have to wait three years to apply to become a citizen, rather than the typical five. If you divorce before this three-year period is up, you will lose this benefit and must wait five years to apply for citizenship.

Divorce as a Conditional Resident

If you obtained your green card through marriage to a U.S. citizen or permanent resident and you have been in the U.S. for less than two years, you are considered a conditional resident. At the end of this two-year probationary period, couples must file Form I-751 and demonstrate that the marriage is legitimate for the immigrant spouse to receive permanent residency.

If you divorce before you file Form I-751 or before your petition is approved, United States Citizenship and Immigration Services (USCIS) will likely take a close look at your marriage to ensure it wasn’t a sham. Although divorce won’t automatically lead to deportation, cause you to lose your status, or prevent you from filing I-751 and attaining permanent residency, you will need to prove your marriage was in good faith. You should be prepared to provide ample evidence to USCIS to demonstrate that you did not enter the U.S. under false pretenses. This can be a delicate process, so it is important that conditional residents who are divorcing work with an immigration attorney and a divorce attorney to maintain their status.

Divorce During Green Card Application

When one spouse’s status depends on the other’s and permanent or conditional residency has not yet been established, divorce may put an immediate stop to the immigration process. For example, when one spouse is sponsored for a green card by an American employer, the second spouse and their minor children are covered under the same immigration petition. They are known as “derivative applicants.” Derivative applicants can apply for their own green cards after the primary applicant is approved.

If the couple divorces before green card approval, the derivative applicant cannot continue the immigration process because they are no longer married to the primary applicant. The derivative applicant’s spouse must exit the U.S. and seek immigration through other means if desired. The primary applicant can continue the immigration process through their employer, and minor children may continue to seek a green card once custody is established.

If the immigrant spouse was sponsored by their U.S. citizen or permanent resident spouse using Form I-130, a divorce while the petition is still pending will also stop the immigration process. Upon divorce, USCIS will deny the Form I-130 petition, and the immigrant spouse will be required to exit the U.S. If the immigrant spouse is living in the U.S. with no other legal immigration status, USCIS will likely initiate deportation proceedings.

Seeking U.S. Citizenship After Divorce

A divorce generally will not bar permanent residents from naturalizing as U.S. citizens, but immigrants should be aware that the naturalization process includes a close review of your immigration file. If you entered the U.S. through your spouse and later divorced, you should be prepared to present evidence that your marriage was legitimate.

If USCIS believes your marriage was fraudulent, your application for naturalization may be denied. In the worst-case scenario, you could be referred to court for deportation proceedings. Most divorced permanent residents with legitimate relationships do not need to worry about this outcome. Still, it is beneficial to work with an immigration attorney to ensure your application is successful.

During your divorce, it is important to work with a divorce attorney who understands the impact that divorce could have on your immigration status now and in the future. A skilled divorce lawyer can help you maintain your immigration status and lay the groundwork to prove your marriage was legitimate.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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