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Immigration & Naturalization Law

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What Happens When You Divorce a U.S. Citizen Prior to Becoming a U.S. Citizen?

The lives of most divorcees change once a marriage ends and the divorce is finalized. However, if you are not a United States citizen, you might face additional challenges and will need to fight for the right to remain in the United States.

Generally, if you are an immigrant and you marry a U.S. citizen and you and your spouse reside in the United States, as the immigrant spouse, you would receive conditional permanent resident status until you have been married for two years.

You can obtain full permanent resident status after filing a petition with United States Citizenship and Immigration Services (USCIS) prior to the second anniversary of obtaining a conditional permanent resident status. If, at that time, you are still married, you would become a full permanent resident. However, if you divorce before your joint application for full residency is filed, you could lose your status and face deportation.

Filing I-751 Petition to Remove Conditions on Residence

If you are divorcing your spouse after you have status as a conditional resident, you may need to file form I-751 Petition to Remove Conditions on Residence with the USCIS. As a divorcee, you would need to file this form with a request to waive the joint filing requirement.

Exceptions To the Deportation Rule

While many people believe that if you are divorced and don’t have permanent resident status you will automatically be deported, there are exceptions. An immigration attorney may be able to help you file a waiver and remain in the United States if you can prove one of three exceptions to the deportation rule.

  • Good faith: If you can prove that you entered your marriage in good faith (not just for immigration status purposes) but it was terminated due to no fault of your own, you might qualify for an exception. Some of the ways you may be able to prove to the court that you entered into the marriage in good faith include living together as husband and wife, having a child together, and owning property together.
  • Extreme hardship: If you would face extreme hardship if deported from the U.S., you could qualify for an exception.
  • Domestic abuse: You may also qualify for an exception if you were battered or treated with extreme cruelty by your spouse, a U.S. citizen.

Couples Who Divorce After Two Years of Marriage

Generally, an immigrant who divorces a United States citizen after two or more years of marriage is less likely to face deportation if you have already obtained a Green Card or permanent residency.

However, the divorce may delay the citizenship process since there is only a three-year residency requirement for immigrants married to U.S. citizens and a five-year residency requirement for immigrants who are not married to U.S. citizens. In any event, if you divorce after two years of marriage, you will likely be allowed to remain in the United States.

Your Divorce May Affect the Immigration Rights of Others

Keep in mind that your divorce could affect more than just your ability to remain in the country. The divorce could also impact visa applications for other relatives you were sponsoring to bring to the United States.

Child Custody and Property Rights Should Not Be Affected

Getting a divorce has many implications for an immigrant spouse in the United States. However, it is important for both spouses to understand that your citizenship status has no bearing on a court’s award of child custody or property division decisions. Child custody decisions are still made according to the child’s best interests – not the parents’ immigration status. Likewise, marital property is divided according to the laws of your state and not whether you are a U.S. citizen.

A divorce can raise real and serious concerns for an immigrant in the United States. However, in many cases, an immigration attorney can help you remain in the United States and obtain a fair child custody agreement and division of marital property agreement. Any immigrant divorcing a United States citizen should seek prompt legal assistance from an attorney with experience in immigration law.

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