Many individuals obtain legal immigration status in the United States based on their marriage to a United States citizen, United States permanent resident or a beneficiary of an immigrant petition. A common misconception people have is that if a person in this situation gets a divorce, he or she will automatically be deported. Generally, this is not true; however, divorce can in some cases impact an individual’s immigration status.
A permanent resident is someone who has been granted authorization by the United States Citizenship and Immigration Service (USCIS) to live and work in the United States on a permanent basis. An individual can obtain permanent resident status (or a green card) based on their marriage to a United States citizen or permanent resident. Additionally, many people become permanent residents through a job or offer of employment. When an individual obtains permanent residence based on a job, that individual may also obtain permanent resident status for his or her spouse. In these instances, the spouse obtains permanent resident status by qualifying as a derivative beneficiary. Other individuals can obtain temporary legal status if they are married to a beneficiary of an immigrant petition. For example, the spouse of an H-1B specialty worker may obtain legal status (H-4 status) solely based on the legal status of his or her spouse.
Getting a divorce may adversely impact an individual’s immigration status if the divorce occurs before permanent resident status is conferred. In these cases, the beneficiary or derivative beneficiary will no longer be eligible for permanent resident status. Divorce can also adversely impact an individual’s immigration status when the status was obtained based on marriage to a United States citizen or permanent resident if the marriage took place two years before the date permanent resident status was conferred. In this situation, an individual will receive what is called “conditional permanent residence.” Conditional permanent residence means that the permanent residence is only valid for two years. Your permanent resident status is conditional, because you must prove that you did not get married to evade immigration laws and for purposes of obtaining permanent residence status.
Normally, the conditional permanent resident and the spouse must apply jointly to remove the conditions on their residency. The conditional permanent resident must apply to have the conditions removed 90 days before the permanent residence status expires. If a person’s spouse withdraws the petition, the individual’s conditional status can be terminated and the individual may be placed in deportation proceedings. However, the individual can apply to waive the joint filing requirement. A waiver is granted and the conditions will be removed if the individual can prove to the immigration service that the marriage was entered into in good faith.
Divorce does not adversely affect an individual’s immigration status if the individual obtains permanent residence without conditions. The only affect divorce may have on an individual who obtains permanent residence without conditions is that it may delay the person’s ability to apply for citizenship. If an individual is married to a United States citizen, he or she must only be a permanent resident for three years as opposed to the normal five-year requirement to be eligible for citizenship.
Divorce is never easy, and not knowing how a divorce affects your immigration status can make it even more difficult. An attorney who is familiar with all these procedures can help your immigration process move smoothly and make life easier for you.