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What You Need to Know About Divorce and Immigration 

Savage law Feb. 29, 2024

Women with passport in lap removing ring from handDivorce is a life-altering event, but for immigrants in the United States, the implications can be even more profound. This is because a divorce can significantly impact an immigrant's legal status, particularly if their presence in the U.S. is tied to their marriage.

If the marital bond breaks, it could potentially jeopardize the immigrant spouse's legal status, putting their ability to reside in the country at risk. Therefore, individuals in this predicament must understand the potential repercussions and take appropriate steps to safeguard their immigration status. 

When Your Immigration Is Tied to Your Marriage

Many immigrants secure their place in the U.S. through marriage to a U.S. citizen or permanent resident. In such scenarios, their immigration status hinges on the marital relationship. The end of this marital bond due to divorce can directly affect the immigrant spouse's ability to maintain their legal status. It's fundamental for individuals in this situation to be aware of the specific visa or green card they hold and grasp how a divorce may impact their immigration standing. 

So, You're in the U.S. Because of Your Spouse — What Happens if You Split Up? 

If an immigrant finds themselves in the U.S. because of their marriage and that relationship ends in divorce, they may confront several challenges concerning their immigration status. It's crucial to seek legal counsel to navigate the complexities of divorce and immigration, ensuring the best possible outcome for their future in the country. 

Can I Stay in the U.S. After Divorce?

The answer to whether you can remain in the U.S. after a divorce largely depends on the type of visa or residency status you have acquired through your marriage. For those holding a conditional green card, known as the CR-1 visa, you may be able to remove the conditions of your residency with a waiver even after a divorce, but you must prove that the marriage was bona fide.

For those with a permanent green card or visas that are not dependent on marital status, divorce may not impact your ability to stay. It is best to consult with an immigration attorney like the Savage law for personalized advice. 

Understanding the Time Limits Before Remarriage

When considering remarriage for the purpose of maintaining immigration status, it is essential to know that U.S. Citizenship and Immigration Services (USCIS) scrutinizes subsequent marriages closely. They look for evidence that both the previous and current marriages are genuine and not conducted for the sole purpose of evading immigration laws.

There is no specific mandated time limit before you can remarry and sponsor a new spouse for a visa, but a very short time interval between divorce and a new marriage can raise red flags. It’s advisable to consult with an immigration attorney to ensure that any steps you take are in compliance with the law and will not adversely affect your immigration status. 

The Process of Divorce for Immigrants 

Divorce as an immigrant in the U.S. generally involves the same legal process as citizens but with additional considerations for maintaining a legal immigration status. Here is an outline of the usual steps in the divorce process for immigrants: 

  • Determine the Type of Divorce: Identify whether your case is uncontested, where both parties agree on all terms, or contested, where disagreements might require legal intervention or mediation. 

  • Understand Your State's Requirements: Divorce laws vary by state, so it's important to be aware of your specific state's residency requirements and grounds for divorce. 

  • File the Divorce Petition: Complete and submit the necessary paperwork to the court in the county where you live, providing grounds for the divorce and any initial requests for support or custody. 

  • Serve the Papers to Your Spouse: Once filed, provide your spouse with a copy of the divorce petition, usually done through a process server, sheriff, or by mutual agreement. 

  • Await a Response from Your Spouse: Your spouse will have a set period to file a response or counter-petition with the court. 

  • Negotiate Settlements and Agreements: Work out details concerning the division of assets, child custody, and support. If an agreement cannot be reached, the court may order mediation or set a date for trial. 

  • File for Temporary Orders if Necessary: These orders can address immediate needs such as child support, spousal support, or protection until the divorce is finalized. 

  • Attend Court Hearings if Required: Some cases may require court appearances, especially if the divorce is contested or if temporary orders are at play. 

  • Finalize the Divorce: Once all issues are resolved, the court will issue a final judgment and decree of divorce, officially ending the marriage. 

Immigrants should be particularly mindful of how each step impacts their immigration status, especially when it comes to filing and serving divorce papers. Consulting with an attorney who specializes in family and immigration law is crucial throughout this process to avoid jeopardizing your status in the U.S. 

Getting a Divorce Isn't Fun, But It's Important to Know How to Do It Right 

Divorce can be emotionally taxing, but immigrants must understand the proper procedures and requirements when filing for divorce. Teaming up with an attorney who is well-versed in both divorce and immigration law can help ensure that the process is handled correctly, thereby minimizing potential negative repercussions on their immigration status. 

Removal of Conditions After Divorce 

For immigrants who are conditional permanent residents, holding a two-year conditional green card (CR-1 visa), the process of removing conditions on their status after a divorce requires careful navigation. Normally, joint filing with a spouse is required to remove these conditions.  

However, in the case of divorce, an individual must file a waiver to the joint filing requirement (Form I-751) with the USCIS.  

It's imperative to provide substantial evidence that the marriage was entered in good faith, and not for immigration benefits. This evidence may include but is not limited to joint financial records, property leases or ownership, and affidavits from friends and family attesting to the relationship's authenticity. The success of removing conditions post-divorce hinges on the ability to prove that the marriage was legitimate from the start, despite its eventual dissolution. 

Applying for Citizenship Post-Divorce 

Despite a divorce, some individuals may still aspire to pursue U.S. citizenship. It's important to understand the implications of divorce on the citizenship application process and any additional requirements that may need to be fulfilled. Consulting with an attorney who is proficient in both divorce and immigration law can provide valuable guidance in this scenario. 

Get Professional Support 

Individuals going through this process are not alone. It's crucial to understand the specific implications of divorce on immigration and take proactive steps to protect one's future in the U.S. For personalized advice and guidance, consider reaching out to the Savage law. Armed with years of experience, they can provide support to safeguard one's immigration status and ensure a favorable outcome.