Immigration Status and Divorce

Everyone knows that getting a divorce can be one of the most stressful events in life.  But getting divorced if you are an immigrant can escalate those levels of anxiety because if you’re not already a citizen, getting divorced can mean more than dividing assets or building a functioning parenting plan; it can mean actual deportation.

Understanding Your Situation

While it’s true that many immigrants have experienced divorce without facing the threat of deportation, there are some circumstances that can be perilous. Anyone who is currently a lawful permanent resident should be able to maintain their status. However, for conditional residents, things could get messy.

Conditional Residents

What is the difference between a conditional resident and a permanent resident? A conditional resident is someone who is married to a lawful permanent resident or a citizen and has been so for at least two years. Before becoming a permanent resident, a married conditional resident must reside in the country for three years, which is shorter than the typical waiting period of five years. In other words, those with conditional residency status, who have been married for two years, and who have been in the country for three years are eligible to apply for United States citizenship.  But there is one more test.

A Good Faith Marriage 

In order to successfully complete the application procedure to become a U.S. citizen, it will be essential to prove that the marriage occurred in good faith and the couple was living in a marital union. There must be substantial evidence that the marriage did not occur simply to get citizenship.  Demonstrating this could be a matter of showing that you have shared assets such as bank accounts, a home, or shared credit cards, and by showing pictures of you and your spouse together.  Once that hurdle has been passed, your citizenship application should progress as any other. However, for a conditional resident to divorce prior to this point could mean the immigrant may be deported.

The Exception 

If your divorce is a result of domestic violence, one may file a self-petition under the Violence Against Women Act, which would make one eligible to become a lawful permanent resident with a Green Card. Failure to do so, however,  could lead to removal proceedings.

For Undocumented Individuals 

Marriage doesn’t immediately impact immigration status, and getting divorced does not, either. Rest assured that, assuming the divorce court is aware of your undocumented status, they are not permitted to contact U.S. Customs and Immigration Enforcement to let them know. Essentially, your ability to remain in the country will be the same as before the divorce until ICE learns of your new status. At that point you could face deportation proceedings.

The Divorce Itself 

Your immigration status may or may not be known by the court, but, either way, it will not impact your rights in property division, child custody, support or visitation, or alimony.

Let Us Help 

The experienced Boca Raton divorce attorneys at WiseLieberman always look out to ensure the best outcomes for you. To discuss, schedule a confidential consultation in our office today.

Source:

uscis.gov/green-card/green-card-eligibility/green-card-for-vawa-self-petitioner