If you are getting divorced and are in the United States on a visa or green card, you might be wondering how divorce might affect you, or your spouse’s, legal status in the U.S. If you are currently living in the U.S. on contingent residence status, or if you are living in the U.S. on a dependent spousal visa, your divorce could potentially impact your immigration status.
In this article, we’ll explore the different situations where divorce can impact a spousal visa or your immigration status.
Will Divorce Impact My Immigration Status?
Whether divorce will affect your immigration status depends on several factors. Let’s explore them.
(1) Your spouse’s legal status in the United States.
Is your spouse a citizen or legal permanent resident who sponsored you for a marriage-based green card? Is your spouse living in the U.S. on a TN visa or another special visa (for example, a student visa)—and are you in the U.S. on a dependent visa?
The answer to these questions will determine whether divorce might impact your immigration status. For example, if you are living in the United States on a dependent visa, when your divorce is finalized, you could lose your dependent status and be required to leave the country or be required to apply for a visa under another category.
If your spouse sponsored you for a marriage-based green card, your immigration status after divorce will depend on whether you were approved for permanent residency or whether you are still living in the U.S. on conditional residency status.
(2) Your Legal Status in the United States.
Your legal status in the United States will determine whether you’ll need to address immigration issues when you file for divorce.
Of course, if you are the U.S. citizen spouse, divorce won’t have any impact on your status. If you entered the U.S. on a marriage-based green card and have since been naturalized a U.S. citizen, divorce won’t have any impact on your legal status. Citizenship cannot be revoked.
But if you were sponsored for a marriage-based green card, you may or may not need to take additional steps to remain in the U.S. If you have been approved for permanent residency, divorce shouldn’t impact your legal status.
(Divorce could affect how long you might need to wait before you can apply for citizenship. If you want to become a U.S. citizen, you’ll have to wait five years to apply for naturalization after your divorce, rather than the three years granted to individuals who are married to U.S. citizen spouses.)
If your residency is still conditional, you may have to take additional steps to protect your legal status, or you could face deportation. More on this later.
If you are reading this and believe that divorce will affect your immigration status, you might want to speak to an immigration lawyer before you or your spouse files for divorce.
If you are currently speaking to a divorce lawyer, it is important that you share your immigration status with your divorce lawyer so he or she can help you understand your options, and refer you to immigration lawyers, if needed.
What Options Do I Have if Divorce Will Affect My Immigration Status or My Spouse’s Immigration Status?
You might have several options if getting a divorce will impact your immigration status. Some individuals choose to work with an immigration lawyer to determine whether they qualify to remain in the U.S. under another visa category. USCIS also offers options to spouses and their children who are leaving relationships where they were battered or subject to cruelty. Other couples might choose to delay their divorce or choose separation instead of divorce until the immigrant spouse works out their visa and immigration issues.
In the state of Washington, couples can remain married, but can take legal steps to divide property, assets, debts, and create a parenting and child support plan. Couples who are considering legal separation might want to speak to an immigration lawyer to explore whether legal separation might have an impact on their immigration status or future immigration paperwork. While divorce directly impacts immigration, if you separate before your two-year conditional residency passes, USCIS might have additional questions about the validity of your marriage.
Other couples choose to wait, and work through their marriage or their divorce agreement in private, filing for divorce when, and if, they are ready.
With the collaborative divorce process, couples negotiate their divorce settlements outside of court. When the couple has reached an agreement about how to settle the divorce, the couple files for uncontested divorce.
Because collaborative divorce takes place outside the court system, couples can set their own timelines for their divorce. Depending on the situation, they can file sooner—or, if it is beneficial—they can wait until a more opportune time to file.
Collaborative divorce has many additional benefits, including privacy, and the ability to reach a divorce settlement peacefully and amicably.
The privacy afforded by collaborative divorce can be appealing for couples who might be waiting for immigration paperwork to go through, or those who may have concerns about immigration enforcement actions. The collaborative divorce lawyers in Seattle, Washington at Truce Law are here to help.
Proving the Validity of Your Marriage
Couples who get divorced before the 2-year conditional residency period passes for marriage-based green cards might face additional scrutiny about the validity of their marriage when the immigrant spouse applies for residency.
Many couples who get married for legitimate reasons realize that things aren’t going to work out shortly after they say, “I do.” Some realize this sooner, and others realize this later. Even if you have been in the U.S. for less than two years, you might have built a strong support network and a life. Having to leave this all behind just because you realize your relationship isn’t going to work out can be devastating and traumatizing.
With collaborative divorce, couples can set their own timelines for divorce, while making decisions about splitting assets and debts—and child custody if there are children. If you want to divorce your immigrant spouse, but don’t want your divorce to impact his or her immigration situation, collaborative divorce might be one peaceful and protective path forward.
If you are thinking of filing for divorce, and have immigration questions, consider reaching out to the collaborative divorce lawyers in Seattle and the state of Washington at Truce Law.
Our collaborative divorce lawyers can help you better understand the divorce process and refer you to immigration lawyers, if needed.
Once you file for divorce and begin the process, everything is on the public record. Because of this, some couples and individuals choose to speak to a collaborative divorce lawyer before they file for divorce.
Divorce When You Have Contingent Residency Status
If your U.S. citizen or legal permanent resident spouse sponsored you for a marriage-based green card, and your permanent residency status is contingent, you could potentially lose your status if you get divorced. Individuals must remain on contingent status for the first two years they are married.
Yet, you may still have options.
- If you have lived in the U.S. for longer than two years, you likely qualify to apply for permanent residency. If you haven’t done so already, you should apply, especially if you are concerned your partner might file for divorce soon. To apply for permanent residency, you must be married when you apply. This process is known as a Petition to Remove Conditions—and both you and your spouse must apply together.
- If you are in the last 90 days of your conditional residency period, you may be able to apply for permanent residency status. You must still be married when you apply, and you and your spouse must file the Petition to Remove Conditions together.
- If you are divorced, will be divorced before the two-year conditional period has passed, or suspect that your partner won’t file the Petition to Remove Conditions with you, you may still have options through the waiver process. You may want to speak to an immigration lawyer to assist you with this process.
If you are thinking of getting divorced before you, or your spouse’s conditional residency status has passed, but don’t want your divorce to complicate your paperwork, collaborative divorce might be a good option.
With collaborative divorce, you and your partner have options. You can choose to separate instead of getting divorced, or you can choose to wait to file for divorce until later.
Because the collaborative process uses a team-based approach, couples can bring immigration lawyers to the negotiating table to help them work out a divorce plan that’s best for them.
In some situations, setting your own timeline makes sense. In other situations, applying to waive the requirement to file a joint petition might make more sense.
Your Washington collaborative lawyers (and possibly, your immigration lawyers), can help you navigate the process.
Applying for a Waiver
There are limited circumstances where USCIS will permit a couple to waive the requirement to file the Petition to Remove Conditions jointly.
If you have already gotten divorced or suspect you will be divorced before your 2-year conditional residency period has passed, you might want to speak to an immigration lawyer about whether filing the waiver is right for you.
If you suspect that your spouse won’t file the Petition to Remove Conditions with you, or there are circumstances that make it difficult or unsafe to speak to your former spouse, you may also want to speak to an immigration lawyer to explore waiver options.
The waiver must be submitted within 90-days of your conditional residency expiring.
USCIS grants waivers in only limited circumstances. These are:
- When leaving the country would cause you extreme hardship. You’d have to show how leaving would result in extreme hardship.
- Your spouse passed away before you could file together.
- You got divorced and can show that you entered marriage in good faith (and not to bypass immigration laws and waiting periods).
- You were a victim of battery, violence, or extreme cruelty.
You can read more about these conditions at the U.S. Citizenship and Immigration Services website.
When filing a waiver for the joint petition, it’s important to keep in mind that the burden will be on you to show USCIS that you entered the marriage in good faith.
Getting divorced before the two-year waiting period has passed will likely raise questions about marriage fraud. You may have to prove to USCIS that your marriage was authentic.
This might mean showing evidence that you and your spouse lived together and had a normal married life before you chose to get divorced. The authenticity of the case you present is incredibly important.
Basically, it’s up to an immigration officer to determine if something seems suspect. Non-traditional living arrangements, especially if you and your partner lived apart, could raise concerns.
An immigration lawyer can help you understand the kind of evidence you’d need to put together to prove that your marriage was indeed authentic.
If you were a victim of domestic violence or cruelty during your marriage, you’d need to also prove this to USCIS to receive this waiver option. You may need to submit evidence of police reports, restraining orders, criminal records, medical records, and more. Again, an immigration lawyer and your family lawyer can review your evidence and help you with this process.
TN Visa Spouses, Student Visa Spouses, and Other Visa Spouses
TN spouses, and spouses of individuals living in the U.S. on a student visa, and other dependent visa spouses typically have fewer options than spouses of legal permanent residents and citizens. This is because you are in the U.S. on a dependent visa. Upon the finalization of your divorce, you could lose your dependent visa.
If your spouse is in the process of adjusting his or her status from TN status to permanent residency status, you could lose your status as a dependent if you get divorced before this paperwork goes through. You may still have other options. If you are leaving your spouse because the relationship was abusive, an immigration lawyer may be able to help you apply for a special visa available in these situations.
You may also have the option to apply for other visa categories, if you qualify. Yet, if this is something you want to explore, you may want to explore it before either spouse files for divorce—or, at the very least, explore these options before your divorce is finalized.
Again, because finalizing your divorce can have major implications for spouses in the U.S. on a dependent visa, some couples choose to use the collaborative divorce process when filing for divorce.
With the collaborative divorce process, you have the benefit of choice and privacy. You can choose to separate instead of divorce, which can offer some protections for you or your spouse’s visa.
Or, you can choose to wait to file for divorce, until you and your spouse adjust your status. Again, these issues can be highly complex, and it’s wise to work with both an immigration and divorce lawyer as you navigate the process.
International Divorce
If you are a U.S. couple living abroad, filing for divorce abroad, or filing for divorce in the state of Washington while living abroad, this can likewise affect your immigration status or visa status abroad if your international visa or permanent residency is marriage-based or dependent.
For example, couples in Washington state may work or live in Canada part of the year or may consider the state of Washington their U.S. home, while they work or study in Canada.
If your visa is tied to your spouse’s TN visa (NAFTA visa), or if your spouse is in Canada on a student visa, your visa could become invalidated if you separate or divorce.
When it comes to filing for divorce, you and your spouse may also have options if you are U.S. citizens or consider the state of Washington your U.S. home.
Issues of international immigration law and divorce can get very complicated. If you are thinking of filing for divorce and are concerned about how it might impact your Canadian visa, you might want to speak to an immigration lawyer and divorce lawyer in your country of residence.
And if you consider the state of Washington your U.S. home, you may also want to consider reaching out to a divorce lawyer in Washington state as well. You may have options regarding where and when you can file for divorce.
Before you act in a way that could potentially lead to immigration issues or establish Canada as the forum for your divorce, you might want to speak to a U.S.-based divorce lawyer first.
Contact a Collaborative Divorce Lawyer Today
If you are concerned that getting divorced will impact you or your spouse’s immigration status, reach out to the Washington state collaborative divorce lawyers at Truce Law today. We can review your situation and refer you to immigration lawyers if needed.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.