Divorce is a significant life event that can have far-reaching implications, impacting various aspects of one's life, including immigration status.
For individuals who obtained their immigration status through marriage to a U.S. citizen or permanent resident, the prospect of divorce raises questions about how it will affect their immigration status and legal residency in the United States.
In this article, we'll explore the potential implications of divorce on immigration status, the options available to individuals facing divorce, and the importance of seeking guidance from an immigration lawyer.
Conditional Residence and Marriage-Based Immigration
Many individuals obtain their immigration status in the United States through marriage to a U.S. citizen or permanent resident.
In such cases, the non-citizen spouse may initially receive conditional residence, typically valid for two years.
To remove the conditions and obtain permanent residency (green card), the couple must jointly file a petition to remove the conditions within the 90-day period before the conditional residence expires.
Impact of Divorce on Conditional Residence
If a marriage ends in divorce before the non-citizen spouse's conditional residence is converted to permanent residency, it can complicate the immigration process.
In cases where the divorce occurs before the joint petition to remove conditions is filed, the non-citizen spouse may lose their eligibility for permanent residency based on marriage to a U.S. citizen or permanent resident.
Options for Divorced Individuals
Despite the challenges posed by divorce, individuals facing this situation still have options to maintain their immigration status and pursue permanent residency in the United States:
- Waiver of Joint Filing Requirement: If the divorce is finalized, and the non-citizen spouse can demonstrate that the marriage was entered into in good faith but ended due to circumstances beyond their control, they may be eligible to request a waiver of the joint filing requirement. This waiver, known as the "good faith marriage waiver," allows the non-citizen spouse to file the petition to remove conditions individually.
- Self-Petition under VAWA: Victims of domestic violence may be eligible to self-petition for permanent residency under the Violence Against Women Act (VAWA). This option allows abused spouses, children, or parents of U.S. citizens or permanent residents to seek immigration benefits independently of the abuser.
- Cancellation of Removal: In certain cases, individuals facing deportation proceedings due to the termination of their conditional residence may be eligible for cancellation of removal. This discretionary relief allows individuals to demonstrate their eligibility for permanent residency based on factors such as family ties, length of residence in the U.S., and hardship to U.S. citizens or permanent resident relatives.
Importance of Seeking Legal Counsel
Navigating the complexities of immigration law, particularly in the context of divorce, can be daunting and overwhelming.
Seeking guidance from an experienced immigration lawyer is crucial for individuals facing divorce and its potential impact on their immigration status.
An immigration lawyer can provide valuable assistance in the following ways:
- Assessment of Options: An immigration lawyer can evaluate the individual's immigration status, marriage history, and eligibility for alternative immigration pathways. They can assess the feasibility of options such as waivers, self-petitions, or cancellation of removal based on the individual's circumstances.
- Legal Representation: An immigration lawyer can provide representation and advocacy throughout the immigration process, including preparing and filing petitions, gathering supporting documentation, and representing the individual in immigration court proceedings if necessary.
Divorce can have significant implications for individuals with immigration status based on marriage to a U.S. citizen or permanent resident.
However, individuals facing divorce still have options to maintain their immigration status and pursue permanent residency in the United States.
By seeking guidance from an experienced immigration lawyer, individuals can navigate the complexities of immigration law, assess their options, and take the necessary steps to protect their immigration status and legal residency in the United States.
Whether pursuing a waiver of the joint filing requirement, self-petitioning under VAWA, or seeking cancellation of removal, having competent legal representation is essential for achieving a successful outcome in immigration proceedings.
