Divorce Immigration Law

For new arrivals to the United States who are going through a divorce, immigration law can be confusing. If an alien (non-US citizen or permanent resident) marries a US citizen or permanent resident, that person is usually given an immigrant benefit. If the couple divorces, however, then the alien spouse's status must be determined.

Visas are an important issue in divorce immigration law.

For purposes of divorce immigration law, divorce is the legal ending of a (valid) marriage. The act of separating from one's spouse does not legally end a couple's marriage.

There is an exception to this rule, however. If the couple were married in a country that automatically converts a separation of a certain length to a divorce, then a couple may be considered divorced after the specified amount of time has passed.

An alien can be granted the status of a permanent resident through the sponsorship of his/her spouse. If a divorce is granted before the immigrant spouse is granted permanent resident status, then he or she cannot be granted a permanent residency through the marital relationship.

In the case of a divorce granted after the alien spouse has been granted a green card, his/her status doesn't change. This individual may have to wait longer before becoming a US citizen.

There is a three-year residency requirement before a permanent resident (married to a US citizen) can apply for his/her citizenship; otherwise the waiting period is five years. To get full citizenship, the alien must have been married to a US citizen for three years or more before the date set for the exam.

If the couple divorces, the timing of the legal end to the marriage does have an effect on the non-citizen's wait time for full citizenship. If the permanent resident has not been married for a minimum of three years or been a permanent resident for five years, then the citizenship exam must be delayed until after the five-year waiting period has been served.

An alien who has been married to a US citizen for a relatively short time (two years or less) can be granted a conditional green card. If the marriage is found to be fraudulent (entered into only for the purpose of obtaining a green card), then the alien will have his/her permanent-resident status terminated. The alien and his/her spouse are required to apply to have the conditional status on the green card lifted three months before the couple's second wedding anniversary.

If the couple's marriage ends in divorce within two years, the alien's spouse's conditional permanent resident status can be terminated. It is possible for the alien spouse to obtain a waiver, however. The waiver can be granted if it can be shown that the alien spouse married in good faith.

Good faith is demonstrated if the couple had a child together or it can be shown that the husband and wife owned property together.

When it comes to divorce and immigration law, there are a number of factors to consider. The best course of action is to contact an attorney who is experienced in immigration matters for guidance.

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