Divorce and Immigration in the USA
Over the past six months, people have been contacting our law firm to inquire about the effects of a divorce on their immigration status. Conversely, we’ve had some of our former client’s reach out to inquire whether a family member should get married to an expired green card holder or undocumented alien.
New Immigration and Deportation Policies
The Trump Administration has introduced a sea change in how immigration law is enforced across the United States. From a policy perspective, the new administration is prioritizing the identification and deportation of illegal aliens.
Because of this new policy focus, certain at-risk groups are seeking to either speed up their inchoate marriage to a U.S. citizen, or they are putting the brakes on an imminent divorce proceeding.
Not all undocumented aliens are being equally targeted. In fact, more recently, undocumented immigrants in various economic sectors such as food and beverage services, hospitality, and commercial landscaping, have received special attention. Workers in these sectors are in the “no go” or “slow go” zones and may not feel the brunt of the new immigration and deportation policies.
Immigration and Divorce
Divorce has a significant impact on a resident alien’s immigration status. Getting divorced affects visa applications, renewal of green cards, and residency status.
Many conditional residents have their marriage to a Unites States citizen to thank for their residency in the United States. Conditions are placed on the resident because the marriage to the U.S. citizen is relatively new. Although these conditions can be eliminated, their removal depends on an ongoing valid marriage and cooperation of the applicant’s U.S. citizen spouse.
If a conditional resident is involved in a divorce proceeding, they need to be the first spouse to complete and submit form I-751. A successful I-751 filing will remove the conditions on the applicant’s green card.
When a divorce is final, a pending green card application becomes more complex. The marriage may need to be factually tested and proven to be valid, causing a delay in the immigration process. A dependent visa holder may not be considered to have lawful status following the divorce. At this point, an immigration law specialist is highly recommended; preferably one that is familiar with the divorce process.
Conditional Residency and New Marriages
Marriage and therefore divorce have serious impacts on an immigrant’s journey through the elaborate immigration laws of the United States. The legislative history of key components of the legislation addresses fraudulent marriages, colloquially known as “green card marriages”. The legislative wisdom behind the law is that, the long the marriage, the less likely it is fraudulent for purposes of obtaining advantages in one’s immigration status.
Accordingly, conditional residence applies to marriages that are less then two years. In other words, such residents receive a conditional two-year green card.
In a legitimate marriage, a couple works together and both spouses file form I-751 together, to remove the conditions before the two-year green card expires. Obviously, a divorce proceeding puts sand onto the gears of this process, exposing the applicant to immigration uncertainty and potential deportation. For example, once a couple in a new marriage -less than two years- is separated, they can no longer jointly file form I-751. The applicant separated from his spouse will need to file a waiver and submit evidence of the validity of the marriage.
If the couple completes their divorce process with a judgment of divorce, dependent visa holders find themselves on precarious immigration footing; such residents are vulnerable to deportation.
Because of such shaky ground, some divorced conditional residents try to shift to employment based [H1B] or student visa footing to remain legally in country. The conditional resident must act quickly or risk triggering an unlawful presence due to their newly acquired divorcee status.
Sponsor’s Continuing Responsibilities After Divorce
In the event of a completed divorce, the responsibilities of a sponsor continue even though the sponsor is now an ex-spouse of the conditional resident. When an immigrant holds conditional residence through marriage, the immigrant’s sponsor’s responsibilities are significant. Those legal duties include financial support, reimbursement of public benefits, reporting requirements such as address changes, and other legal liabilities.
The sponsor’s duties continue until the immigrant becomes a United States citizen, departs the Unites States, or becomes financially independent through a consistent employment metric. Both the immigrant and the Unites States government can take legal action against the sponsor to enforce their financial support obligations.
Divorce does not obviate the sponsor’s obligations to the immigrant. Therefore, many ex-spouses seek to cooperate in establishing the marriage validity so that the immigrant’s financial hardship does not become their financial hardship.
From time to time, our law office has been involved in cases where the support negotiations do not involve child or spousal support but rather, a sponsor’s financial support obligation of a conditional immigrant resident; a person they thought would be a life-long spouse. In such cases, the divorce judgment usually includes a provision obligating the spousal sponsor to continue paying the immigrant even after the marriage is dissolved through divorce. Even if both spouses agree to certain terms of continued financial sponsorship, the United States government’s interest remains separate and apart from any agreement between the spouses.
Removal Proceedings After Divorce
In short term marriages involving a conditional resident, divorce can trigger removal proceedings for the immigrant. Therefore, the conditional resident must proffer solid evidence that the marriage was genuine and not done for purposes of immigration status.
Such evidence includes verification of joint account activity, long-term investments, comingled social media data, photos of significant life events such as vacations, anniversaries, religious ceremonies, and similar occasions.
Another component of a solid defense includes proffered evidence of the hardships caused by divorce. Evidence of financial difficulties; evidence of challenges associated with maintaining adequate housing; and evidence of mental and physical health risks are crucial to supporting a hardship petition.
Timing is Important with Immigrant Divorces
Evey couple is different. Sometimes, based on acute conflict, a divorce proceeding is imminent and cannot be “scheduled”. In other cases, when two spouses are amicable, a divorce can be timed to optimize a conditional resident’s immigration status.
In most cases, the issuance of the green card [permanent or conditional] is crucial to the timing of a divorce proceeding. If at all possible, a divorce should not be filed until after the issuance of a green card.
Again, the length of an immigrant’s marriage is significant. If a divorce is filed prior to the completion of the two-year conditional green card period, heightened scrutiny of the validity of the marriage comes into play, triggering complex evidentiary submissions of the type referenced above.
Hopefully, the immigrant spouse has as their spouse a United States citizen that is compassionate and understands the risks and challenges to illegal residency in this great country of ours. Especially now, when the priorities at the federal level are those of deportation for illegal immigrants, care must be taken before proceeding with divorce.
We Can Help
If the inevitable happens, our law firm can assist a United States citizen spouse or an immigrant spouse in obtaining a fair and equitable divorce at a reasonable cost. Divorce lawyers and immigration specialists should be utilized before a proceeding is lodged in family court.
Contact our law firm to assess your options and get information about next steps.
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