The lives of most divorcees change once a divorce is finalized. However, if one of the divorcees is not a United States citizen then that person may face an additional challenge and need to fight for the right to remain in the United States. Generally, when an immigrant marries a U.S. citizen and the couple resides in the United States, the immigrant spouse is provided with a conditional permanent resident status until the couple has been married for two years. In order to obtain full permanent resident status, the immigrant spouse must file a petition with the INS prior the second anniversary of obtaining a conditional permanent resident status. If the couple is still married then the immigrant spouse becomes a full permanent resident. However, if the couple is divorced then the immigrant spouse is deportable.
Exceptions to the Deportation Rule if the Couple Divorces Within the First Two Years of Marriage
While the presumption is that a divorcee who does not have permanent resident status will be deported, there are exceptions to that general rule. In order to remain in the United States, the divorcee, usually with the help of an immigration attorney, needs to prove one of the following:
· That the marriage was a marriage entered into in good faith and that the marriage was terminated due to no fault of the immigrant. A court is likely to find that the marriage was entered into in good faith, and not for purposes of immigration status, if the couple lived together as husband and wife, if the couple had a child together or if the couple owned property together.
· That the immigrant would face extreme hardship if deported; or
· That the immigrant was battered or treated with extreme cruelty by the spouse who was the U.S. citizen.
If any of these three exceptions are proven then the immigrant may remain in the United States.
Couples Who Divorce after 2 Years of Marriage
Generally, an immigrant who divorces a United States citizen after 2 or more years of marriage is less likely to face deportation if the immigrant has already obtained permanent resident status. A divorce may delay the alien’s citizenship process since there is only a three year residency requirement for immigrant married to U.S. citizens and there is a five year residency requirement for immigrants who are not married to U.S. citizens. However, the immigrant will be allowed to remain in the United States.
Your Divorce May Affect the Immigration Rights of Others
Often it is not just the immigrant spouse whose immigration to the United States is affected by a divorce. The divorce could also impact visa applications for other relatives whom 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 a spouse’s citizenship status has no bearing on a court’s award of child custody or property division decisions. Child custody decisions should be made in the best interest of the child and not based on a parent’s immigration status. Likewise, marital property will be divided according to the laws of your state and a spouse’s immigration status should have no bearing on that award.
There is no question that a divorce raises very real and very serious concerns for an immigrant in the United States. However, an immigration attorney can help an immigrant remain in the United States in many cases and obtain a fair child custody agreement and division of marital property agreement. Therefore, any immigrant should seek prompt legal assistance if he or she is divorcing a United States citizen.