The Law Offices of Robert Nadalin

Impact of Divorce On immigration Status


When someone migrates to the U.S. on a visa that was granted based on their spouse’s application, then it is highly possible that a divorce or separation will impact your lawful status and ability to stay in the U.S. Therefore one must be careful in choosing whether and when to separate or get a divorce. It is true that marrying an American citizen provides a path to citizenship that many single immigrants would like. If a marriage between an American citizen and an immigrant becomes contentious and the couple decides to divorce the immigrant spouse’s status in the United States is in jeopardy.

Therefore it is imperative that prior to filing for divorce immigrants and their spouses should comprehend the consequences that a divorce can have on the immigrant spouse’s status. Anyone that has used their spouse’s status as a U.S. citizen to immigrate within two years of their marriage is a conditional resident of the US. If your immigration status is based on your spouse’s current visa or pending application, let’s say that you are married to an H-1B visa holder. Your spouse may have an approved adjustment of status application but the priority date is not yet current, in that case a separation or divorce can disqualify you as a dependent of the H-1 B visa holder.  You will then not be able to obtain a green card once the priority date becomes current.

Becoming a lawful permanent resident of the United States is signified by a green card. Lawful permanent residents can remain in the country regardless of their divorce status. However, a divorce disqualifies them from going the faster route enjoyed by spouses of US citizens and requires them to wait five years to apply for citizenship. A conditional green card means that a couple have been married for 2 years or less. A conditional green card is terminated in the case of divorce unless a waiver is signed demonstrating that both parties entered the marriage in good faith and were not at fault for the breakup. People having H-4, J-2, or L-2 visas, will generally have their status as a legal visa holder terminated in the event of a divorce.

Individuals with these visas should apply for non-immigrant status separate from their spouses prior to their divorce if they wish to remain in the United States. An individual having a pending permanent residency application will have their application terminated in the event of a divorce. If in a marriage, the American citizen feels that their spouse married them simply for immigration purposes, they can petition the court to annul the marriage. This process is not the same as a divorce. An annulment means that the marriage never legally existed thereby reverting all assets to their pre-marriage owners.

If an immigrant alleges that their American spouse sought a fraudulent marriage then the American partner can face an investigation and potentially be convicted of fraud and subject to criminal penalties.

For an immigrant, in order to protect themselves and their immigration status, they should know the difference between divorce and separation. When a court legally ends a marriage that is called a divorce. When a couple remains legally married but lives apart that is called a separation.

Divorce laws vary from state to state. Therefore irrespective of what the intentions of the parties were when they made the decision to separate or divorce, the U.S. Citizenship and Immigration Service (USCIS) or Board of Immigration Appeals (BIA), will interpret state law and decide whether or not a separation or divorce ended the marriage.

If you are facing a divorce or separation in California you should find a divorce attorney in Oceanside who understands immigration and can help you out with your divorce.

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About the Author

Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.