Divorce and Your Immigration Status
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Divorce and Your Immigration Status
When a marriage that provided the basis for immigration status ends, two areas of law collide. Most family law firms cannot advise on the immigration consequences, and most immigration firms do not handle the divorce. Because Law Offices of Paul Marinov, P.C. practices in both areas, we are able to advise clients on how the divorce case and the immigration case affect one another — and, importantly, on how the timing and terms of the divorce can be structured to avoid unnecessary damage to the immigration side.
The most common situation involves conditional permanent residence. A person who obtained a green card based on a marriage less than two years old receives conditional residence and must ordinarily file a joint petition with the spouse to remove the conditions. Divorce makes a joint filing impossible, but it does not end the matter: a waiver of the joint filing requirement is available, including where the marriage was entered into in good faith but has been terminated, or where the applicant or a child was subjected to battery or extreme cruelty. These cases turn on documentary proof that the marriage was genuine, which is why what is said and filed in the divorce case matters.
Other situations arise regularly. A pending adjustment of status application based on a marriage will generally not survive a divorce, and alternative paths must be identified. A spouse or child who has been abused by a U.S. citizen or lawful permanent resident spouse may be able to self-petition under the Violence Against Women Act, which is available to men and women alike and does not require the abuser’s knowledge or participation. And a U.S. citizen or resident who signed an Affidavit of Support remains bound by that contract after divorce — the obligation is owed to the sponsored immigrant and to the government, and a divorce judgment does not terminate it.
Timing and the record created in the divorce can matter a great deal. Statements made in pleadings, the length of the marriage as recited in the judgment, and whether a case proceeds by default can all affect a later immigration filing. If your status is connected to a marriage that is ending, or you are a U.S. citizen divorcing a spouse you sponsored, contact our office before the divorce is finalized rather than afterward.
What Our Clients Say
“Mr. Marinov was my divorce lawyer, and later my immigration lawyer for my wife and her daughter. The case was very difficult but he succeeded in solving all problems in a very professional manner.” — Rosen V.
Common Questions
Will I lose my green card if I get divorced?
Not automatically. A lawful permanent resident who already holds a ten-year green card does not lose it because of divorce. The situation is different for conditional residents, who must address the joint filing requirement.
What is conditional permanent residence?
If your green card was granted based on a marriage that was less than two years old at the time, you receive conditional residence and must ordinarily file jointly with your spouse to have the conditions removed.
I am divorcing and cannot file jointly to remove conditions. What now?
A waiver of the joint filing requirement is available, including on the basis that the marriage was entered into in good faith but has been terminated by divorce. The case rests on proving the marriage was genuine.
How do I prove my marriage was genuine?
Through documentary evidence of a shared life: joint leases or deeds, joint accounts and tax returns, insurance, photographs, correspondence, evidence of children, and statements from people who knew you as a couple.
What if my spouse abused me?
You may be able to self-petition under the Violence Against Women Act, which is available to spouses and children of U.S. citizens and lawful permanent residents, applies to men and women, and does not require the abuser’s knowledge or consent.
What happens to my pending adjustment of status if we divorce?
An adjustment application based on the marriage will generally not survive the divorce. It is important to identify alternative options before the divorce is finalized rather than afterward.
Does my sponsor still have to support me after divorce?
The Affidavit of Support is a contract with the government that is generally not terminated by divorce. It is enforceable by the sponsored immigrant and ends only on specified events, such as the immigrant becoming a citizen or being credited with the required work quarters.
I sponsored my spouse. Can I get out of the Affidavit of Support?
A divorce judgment does not by itself end the obligation, and a provision in a marital settlement agreement purporting to waive it is generally not binding on the government. This should be understood before you sign a settlement.
Does it matter what our divorce papers say?
Yes. Statements in pleadings, the recited length of the marriage, and whether the case proceeds by default can all be relevant to a later immigration filing. The divorce record should be prepared with that in mind.
Can I be removed from the U.S. because of a divorce?
Divorce is not itself a ground of removability. Risk arises where status lapses or where an application is denied, which is why alternatives should be identified early.
Do you handle both the divorce and the immigration case?
Yes. Our office practices in both Illinois family law and U.S. immigration law, which allows the two matters to be coordinated rather than handled separately by firms that do not speak to each other.
What documents should I bring to my first consultation?
Any court papers you have been served with or have filed, recent pay stubs and tax returns for both spouses if you have them, a list of significant assets and debts, and any existing court orders or agreements.
