What Happens If You Divorce an Immigrant

The United States is one of the world’s choicest destinations for immigrants. According to the American Immigration Council, 44.9 million of the American demographic consisted of immigrants as of 2019. This makes up a sizable 14 percent of the American population, with a further 12 percent (38.3 million citizens) having at least one immigrant parent. These numbers are influenced by several factors, including the welcoming policy for immigrants. This policy makes residence and citizenship easily attainable through various means. One of these is through obtaining a Form I-130, officially known as a Petition for an Alien Relative.

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Form I-130 is usually used by US citizens who wish to marry non-citizens. The goal of the form might be for the immigrant to receive a lawful residence permit and, subsequently, eligibility for citizenship if the requirements are met. Many benefits become available for the immigrant, such as lawful and improved work conditions. Unfortunately, many marriages do not work out, and the couple may need to file for a divorce. Determining how to get a divorce from an immigrant spouse may not be as difficult as applying for residency, but what must be considered are the implications of a divorce on the immigrant.

What You Need To Know If You’re Divorcing an Immigrant

As a US citizen or green card holder married to an immigrant, you need to know that the dissolution of the marriage will affect the immigrant’s status under the following categories:

  • Residency;
  • Affidavit of support;
  • Child support; and
  • Alimony and division of assets.

Residency 

Residency issues tend to revolve around the category the immigrant spouse belongs to under immigration laws, as well as the details of the marriage. An immigrant spouse could be classified as either a conditional resident or an immediate relative. A conditional resident immigration visa allows a spouse to migrate to the United States when the marriage is less than two years old. A conditional residency expires on the second anniversary of the marriage, during which time both spouses are expected to have filed for permanent residence, using Form I-751, the Petition to Remove Conditions of Residence, with proof of the subsisting marriage. An immediate relative is a spouse, widow/widower, a child under the age of 21, or parent of a US citizen who shares the prescribed relationship with the citizen and is, therefore, eligible for an immigration visa.

Divorce during immigration process means that the immigrant spouse may lose residency status if the marriage ends before the two-year time has lapsed. After the conditional residency expires, the immigrant will not be able to get a green card or citizenship based on the marriage without the following exceptions:

  • A signed waiver with evidence that the marriage was in good faith and in no way fraudulent; or 
  • Proof that it will be in the interest of equity and fairness for the residency to be granted. 

An immediate relative who divorces may be granted a conditional permanent residency if he or she continues the immigration application process. However, the application for citizenship usually must be on a basis other than marriage.

Affidavit of support

Form I-864, otherwise known as an Affidavit of Support, is a contract that legally binds the signatory as a sponsor to an immigrant under the terms of the contract, usually bearing financial obligations like immigration expenses. The sponsor’s obligations under the contract usually last from when the intending immigrant becomes a lawful permanent resident until the immigrant becomes an American citizen or is credited with 40 quarters of work, a period of usually ten years. If the dependent immigrant is a spouse, then it is important to understand how a divorce may affect the affidavit. Generally, ceasing to be a couple does not absolve the obligations of a sponsor under an Affidavit of Support. Consulting with an immigration attorney may help to clarify any ongoing responsibilities after the divorce and possible settlements to discontinue those responsibilities.

Child support

Child support claims are a frequent source of legal disputes and subsequent proceedings. Marriages involving immigrants are not exempt from these issues. In the event of a divorce from marriage to an immigrant, it may be helpful to seek legal advice about applicable child support, insurance, and custody practices. Child custody is usually left to the determination of the court if the parents cannot come to an agreement. The decision is mainly based on what the court believes is best for the child. The legal implications of a divorce on the immigrant do not absolve a spouse from child support responsibilities. Child support is usually still enforceable by law and is governed by international law in cases where the immigrant spouse has returned to his or her home country either by will or by deportation.

Alimony and division of assets

Another important issue to consider if you want to get divorced from an immigrant is alimony and the division of assets and how these affect an immigrant’s status and the court’s decision post-dissolution. The general rule allows spouses to choose laws governing division of assets from their country of residence. However, this can become tricky as a stipulation of the Hague Conference on Private International Law, and the case may involve countries that are not member states of that organization. Thus, it may be beneficial to enlist a skilled family and immigration lawyer for legal assistance to help you navigate this complex legal ground.

How Will Divorce Affect Immigration Status?

What happens if you divorce an immigrant? The residency and immigration status of the immigrant spouse depend on the category the spouse belongs to and on the details of the marriage. The immigration case can be decided on the following premises:

  1. If an immigrant’s status is still temporary or conditional, the immigrant will likely lose residency unless he or she files a fresh application or a waiver.
  2. If the immigrant’s status is already a permanent residency, a divorce will increase the timeframe required to obtain citizenship by naturalization from 2 years to 5 years.
  3. If the immigrant is already a US citizen, the divorce will not affect his or her immigration status.

What Happens If You Divorce an Illegal Immigrant?

An illegal immigrant might face deportation in the event of a divorce if he or she cannot file for a legal residency in time. Divorce courts do not notify authorities about illegal immigrants, but that does not guarantee that they are in the clear. An illegal immigrant loses benefits, such as a residency permit and possibly work benefits, due to a lack of a work permit. However, the immigrant has other rights, including alimony and child support entitlements, whether staying in the United States or going back to his or her home country. .

How Are Immigration Applications Treated After a Divorce?

Generally, immigration applications are not affected by the dissolution of a valid marriage conducted in good faith, though it might be an indicator of a more complicated process. Only the procedures are affected, as the immigrant must file applications with adjustments to the marital status, such as Form I-751 requirement waivers. However, a divorce could affect an application and attract penalties if it is discovered that the marriage was fraudulent, the spouse was guilty of illegal activity, or the divorce was caused by the faults of the immigrant. In these cases, the visa applications could be denied, or the process could become more tedious.

Final Thoughts

Divorce is not usually smooth. A lot of changes and decisions happen at once and affect many aspects of both spouses’ lives. For an immigrant, the legal implications of a divorce could range from a simple change in marital status to deportation. Everything depends on what resources and documents have been put in place and the immigrant’s conduct under the circumstances. The couple might choose separation to avoid the trouble of a divorce. However, federal and state laws outline consequences in each situation. It may be best to secure the legal assistance of a skilled and experienced family and immigration lawyer who can guide you through every step, from how to divorce an immigrant spouse to the effects on both parties.

Article by Megan Thompson

Megan Thompson is a legal writer at Lawrina. Megan writes about different law practice areas, legal innovations, and shares her knowledge about her legal practice. As a graduate of the American University's Washington College of Law she is an expert of law in Lawrina's team and has a slight editing touch to all content that is published on the website.

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