The Impact of Divorce on Immigration

According to the National Center for Health Statistics, Colorado ranks #10 in the top states where couples are likely to get divorced, with 3.7 divorcees per 1,000 people. And, while most have the best intentions when choosing to marry, statistics show that subsequent marriages are even more likely to end in divorce than the first marriage. Now, to a family law attorney, these statistics aren’t surprising, as we deal with these issues every day. However, when a party to a divorce or separation is not a US citizen, our everyday family law issues can become much more complicated.

How to Obtain a Green Card

The easiest way for a non-citizen to get a green card, and eventually citizenship, is still by marrying a U.S. citizen. This explains why the marriage itself, as well as the timing of a separation or divorce is so highly scrutinized by the U.S. government. The parties must be able to prove they entered into a “bona fide marriage” at inception and not for any other purpose. In other words, it needs to be for love and not for immigration status. Separation and divorce may have a significant negative impact on the lawful status and ability of a non-citizen to remain in the U.S.

Conditional Permanent Resident & Lawful Permanent Resident

If the parties are married for less than 2 years, the non-citizen can obtain a conditional green card and will be a “conditional permanent resident” (CPR). If the CPR status was obtained through marriage to a US citizen, that status is limited to two years. In order to obtain a green card and “lawful permanent resident” (LPR) status, the CPR must file a Form I-751 during the final 90 days prior to the expiration of the conditional green card.

Typically, the parties will file the form together and will include necessary documentation evidencing the fact they are still married and living together. The Form I-751 process can take 20-30 months and the parties must continue to live together, as this process can be negatively impacted if the parties are separated or divorced during this time. This explains why the timing of the separation and/or divorce is so important in instances where a party to the action is a conditional permanent resident, and it may be worth it for the parties to wait until after the conditions are removed and the individual obtains lawful permanent resident status before proceeding with a separation or divorce.

Jointly Filing the I-751

If waiting is not an option and the parties are separated, pending divorce, divorced, one is the victim of domestic violence or can demonstrate extreme hardship, the CPR can file a waiver of the requirement to “jointly” file the Form I-751. However, this person must still be able to prove that it was a “bona fide marriage” at inception. While still possible, a divorce during the first 2 years may make it much more difficult to become a lawful permanent resident, as it will subject the CPR to increased scrutiny which will require evidence that the CPR shared a normal married-life with the former spouse. In cases where neither party is a US citizen, and a person’s legal status depends upon their spouse’s legal status, divorce or separation may disqualify the “dependent” spouse’s ability to obtain a green card.

Applying for Naturalization

If the individual already has a green card, and is a lawful permanent resident at the time of divorce, the divorce will likely not impact that status. However, it could result in a delay in the ability to apply for naturalization. In those cases, they would need to wait for 5 years, rather than 3, before applying. Bottom line, is that it is extremely important for the family law attorney to work in conjunction with the immigration attorney regarding timing to ensure the divorce proceeding doesn’t negatively impact the client’s immigration status.

Would you like to know more?  Contact Denise Gonzales at dgonzales@pollartmiller.com or call 800-808-0012.

 

Also posted in the August 2018 Pollart Miller Newsletter

2018-08-30T20:24:54+00:00