U.S. immigration is a highly regulated, complex process that can become intertwined with many other facets of the law in the right context. For example, where a foreign national seeks U.S. citizenship through marriage to a U.S. citizen or permanent resident, family law can play an important role, and divorce can affect their immigration status. Here is what you need to know about getting a divorce as a non-U.S. citizen.

How Getting A Divorce As a Non-U.S. Citizen Can Affect Immigration Matters

U.S. Citizenship and Immigration Services, or USCIS, governs immigration matters in the United States, and USCIS generally believes that many marriages involving would-be immigrants are fraudulent– entered into for no other reason than to obtain citizenship. Therefore, USCIS pays great attention to those marriages which lead to U.S. citizenship, and USCIS may be skeptical of the applicant when those marriages end in divorce. However, because divorce is common even in the most traditional contexts, divorce cannot be fatal to an immigration application. The remainder of this article will discuss how divorce can impact immigration when the divorce occurs at different stages of the immigration process.

How Does USCIS Look At Getting A Divorce?

In an attempt to address the possibility of sham marriages entered into for the purpose of obtaining citizenship (in exchange for friendship, financial gain, etc.), USCIS treats marriages that end in divorce with a certain level of skepticism. However, this requires a complex calculus on the part of immigration officials based on the timing and circumstances of the divorce, for the officials must admit that divorce is a common result for many couples. Learn more about the different stages of applying for U.S. citizenship here.

What Is The Divorce Process As a Non-U.S. Citizen?

Immigration matters generally begin when a third party files a petition with USCIS on the applicant’s behalf. Where the applicant seeks immigration on the basis of their marriage to a U.S. citizen or permanent resident, it is that spouse who would file the petition. However, if the couple gets a divorce after filing that petition but before any approval, then USCIS will consider the petition void.

Following Approval for Conditional Residence

Once USCIS approves the applicant’s petition for immigration and grants them conditional residence, any subsequent divorce will have a more complicated impact on their immigration status. Eventually, the applicant will need to file Form I-751 with USCIS to remove the conditions and grant permanent resident status. This form ordinarily requires that the spouses affirm the legitimacy of their marriage. If a couple divorces at this stage, USCIS will expect substantial evidence that the marriage was legitimate. If USCIS is not satisfied with the evidence presented, it may deny the application and even initiate a deportation proceeding.

Upon Application for Citizenship

Once the applicant achieves permanent resident status, there is only one more stage at which USCIS will review their immigration history: upon the person’s application for citizenship (naturalization). A divorce at this stage would have consequences similar to a divorce at the previous stage; USCIS will expect substantial evidence that the marriage was legitimate, and, if USCIS is not satisfied, it may deny the application and initiate a deportation proceeding.

Proving The Marriage Was Legitimate & Satisfying USCIS

When USCIS investigates a marriage in the context of an immigration application, USCIS officials look for evidence that the couple entered the marriage in good faith. Ultimately, a court will determine whether it believes the couple entered the marriage in good faith based on a number of factors. In this context, evidence of good faith could be the cohabitation, the length of the marriage, the existence of any children or joint property, and more.

USCIS may otherwise permit immigration despite divorce if the applicant can establish that (1) deportation would result in extreme hardship or (2) they sought divorce due to domestic violence.

F.A.Q.s:

Q: How does the length of a marriage impact an immigration application?

A: USCIS tends to grant deference toward marriages that have lasted at least two years. Although a divorce may still delay the immigration process, it is unlikely that an individual will face deportation if their marriage lasted at least two years.

Q: How can a divorce between a U.S. citizen and a non-U.S. citizen affect other people?

A: Divorce between a U.S. citizen and a non-U.S. citizen can have a significant impact on the non-U.S. citizen’s immigration status, and this impact can extend to other people as well. For example, where the non-U.S. citizen is sponsoring other immigration applications, those applications will be threatened. Notably, divorce in this context will not affect child custody matters directly; a court will determine child custody matters in its traditional fashion, based on what it believes is in the child’s best interest.

Contact Pride Legal

If you or a loved one plan to undergo a divorce or legal separation, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.