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Impacts of Divorce in Immigration and Naturalization

Divorce & Conditional Resident Status

When an immigrant applies for permanent residence “green card” based on their marriage to a U.S. citizen, the immigrant is first granted a “conditional permanent residence” until the couple has been married for two years. Conditional permanent resident status lasts for a period of two years. Within ninety (90) days of the two year anniversary, a conditional permanent resident must petition USCIS to “remove conditions” thereby becoming a permanent resident. The petition to remove conditions (I-751) must be filed jointly with the US citizen spouse. A divorce within the two years of conditional permanent residence can have a serious impact on one’s immigration status and ability to remain in the United States. First, a divorce within the two years would result in the intending immigrant being “out of status” and therefore subject to deportation. Even if a divorce is just pending, and not finalized within the two years, it can impact the immigrant spouse’s ability to obtain full permanent residence.

In limited circumstances, the immigrant spouse may file a waiver of the joint filing requirement before the two-year period. Some reasons for a waiver include:

  1. The marriage was entered into in good faith, however, the marriage was terminated due to no fault of the immigrant;
  2. The immigrant would face extreme hardship if deported; or
  3. The immigrant was battered or treated with extreme cruelty by the US citizen spouse.

The standard for proving any of these is extremely high and it is the immigrant’s burden to prove. If you find yourself in this situation, you must consult an immigration attorney immediately to prevent any mistakes that could lead to deportation.

Divorce & Citizenship/Naturalization

When a legal permanent resident divorces his or her spouse, the ability of the permanent resident to apply for naturalization/citizenship may be impacted. If the permanent resident obtained a green card through marriage to a U.S. citizen spouse, that permanent resident is usually eligible to naturalize after three years of becoming a legal permanent resident. If, however, the couple divorces before the permanent resident naturalizes, the permanent resident would not be eligible to naturalize until five years from the date he/she became a permanent resident. Naturalizing after a divorce may also raise questions about whether the initial marriage was truly a bona fide marriage and not entered solely for immigration purposes. It is imperative to consult with a knowledgeable immigration lawyer before filing an application for naturalization / citizenship.

Divorce & Affidavit of Support

It is crucial for the US spouse to understand the responsibilities and implications of sponsoring an immigrant spouse. USCIS requires that the US citizen sponsoring their immigrant spouse file an I-864, Affidavit of Support. Essentially, this is a contract between the US citizen and the US government affirming that the immigrant spouse will not become a public charge. It obligates the US citizen sponsor to support the immigrant at an amount that is 125% or more of the U.S. Poverty Guidelines levels. A subsequent divorce does NOT terminate this financial obligation. The US citizen will continue being financially responsible, notwithstanding a divorce, until the immigrant either:

  1. becomes a U.S. citizen
  2. earns 40 work quarters credited toward Social Security (approximately ten years of work)
  3. dies, or
  4. permanently leaves the United States.

As experts in both family law and immigration, the attorneys at Helfand & Associates can advise you how best to deal with issues arising out of the Affidavit of Support.

Helfand & Associates are very experienced matrimonial attorneys.  A free half-hour consultation is available.  Please call 973-428-0800.

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