Marriage, Divorce, and Immigration FAQ
If you are not yet a citizen or do not yet have Legal Permanent Resident status in the United States, you can gain legal status through marriage. But what happens if you have not yet become a Legal Permanent Resident or citizen of the United States and you are currently going through a divorce or legal separation with your United States citizen spouse? You may still qualify to retain your legal status.
How Does Marriage Affect Immigration?
Generally speaking, if you have a valid marriage to a citizen or a legal permanent resident of the United States, you can apply for your own citizenship. To do so, you must comply with the specific requirements and timelines provided by law.
Can I Get a Green Card by Marrying a U.S. Citizen?
If you are seeking to become naturalized by marriage to a United States citizen, the law states that you must continue the marriage from the time you file your paperwork until the time that you take the Oath of Allegiance. According to the USCIS, you must “live in marital union,” or actually live with your United States citizen spouse for at least three years after the date that you filed your application.
If you and your citizen spouse terminate the marriage before you take the Oath of Allegiance, or you do not live with your citizen spouse during the time you are required to “live in marital union,” you will not satisfy the legal requirements for becoming naturalized through marriage to a U.S. citizen.
Can I Get a Green Card by Marrying a Legal Permanent Resident?
The same rules for getting your green card apply to getting a green card by marrying a Legal Permanent Resident. However, if your spouse is a green card holder, you cannot submit your Form I-485 application until the Department of State determines that a green card is available via the visa bulletin.
What is the Process for Applying for a Marriage Green Card?
There are three steps to applying for a green card through marriage to a U.S. citizen or legal permanent resident. First, you must establish your marriage relationship. Second, you must apply for your marriage green card using Form I-485. Finally, you must attend the green card interview.
What is Conditional Permanent Residency?
You may receive conditional permanent residency status if you immigrated to the United States after marrying a U.S. citizen and your marriage is less than two years old. To obtain permanent residency status, you must file your petition to the USCIS less than two years after you immigrated to the United States.
If your marriage is still valid when you submit your application to USCIS, you should be granted permanent residency status. If, however, your marriage is terminated on that date, you will lose your conditional residency status and may be deported. You may only hold conditional permanent residency status for two years.
How Does Divorce Affect Immigration?
Divorces are naturally difficult situations. However, when one of the spouse’s immigration status is involved, the divorce may be even tougher. While you may be able to obtain your green card through marriage to a United States citizen or legal permanent resident, you may also lose your immigration status because of divorce or the termination of the marriage.
What Happens if My Spouse Alleges Bad Faith in their Divorce Petition?
It is not uncommon for the citizen spouse to allege “bad faith” as the reason for the divorce in cases where the other spouse’s immigration status is at issue. When this happens, the citizen spouse is alleging that the immigrant spouse only married them in order to get their green card.
This “bad faith” language can make its way into a final judgment or divorce decree signed by a judge. If that happens, USCIS may receive a copy of the judgment or divorce decree and note the “bad faith” alleged by the citizen spouse. If this happens, the USCIS may prevent the citizen spouse from sponsoring your permanent residency application.
What Happens When the Divorce is Final?
Once the divorce becomes a final order from the court, you must give the divorce decree to USCIS with Form I-751 to remove any conditions to your residence. If you still want your green card when your divorce is final, you must submit a Waiver of the Requirement to File a Joint Petition.
This allows you to make a request for permanent residency without having to rely on your now former spouse. Make sure that you review the instructions and submit the property supporting documents with the Waiver to USCIS.
What Happens if My Marriage is Terminated and I am Undocumented?
Terminating your marriage to a United States citizen does not mean you will be automatically deported. Family or divorce courts are not supposed to contact ICE immediately and inform them that your marriage has terminated. In fact, undocumented immigrants usually have the same rights to spousal maintenance/alimony, custody, and child support as permanent residents.
What Happens to My Children After a Divorce if I Do Not Have Citizenship?
Courts dealing with child custody issues usually base their decisions on the children’s best interests. Immigration status is usually not a factor in a custody determination under state law. However, courts may consider certain immigration-related facts in their best interest/custody decision.
For example, if you are facing removal proceedings or you are unable to work and provide for your children because of your undocumented status, you having custody may not be in the children’s best interest.
Will My Divorce Change my I-864 Affidavit of Support?
When applying for a marriage green card, your sponsor spouse must sign an Affidavit of Support (Form I-864) stating that you, as the non-citizen spouse, will not require government financial assistance because you have access to enough financial means. Your sponsor spouse is also stating in the Affidavit of Support that they are able to financially support you at 125% or more above the United States poverty levels.
Your sponsor spouse’s obligation to support you does not end in the event of a divorce. However, your sponsoring spouse may withdraw their Affidavit of Support before or during the divorce. Unfortunately, your petition for permanent resident status will be automatically canceled if your sponsoring spouse withdraws their Affidavit of Support.
Contact a Divorce Attorney for Help
Marriage, divorce, and immigration all present complex issues. If you are worried about your citizenship or resident status related to a divorce, you should discuss your legal concerns with an attorney. An attorney can help you explore your options and protect your best interests during the pendency of your case.