Divorce is generally a stressful, painful, and emotionally-charged process. If your immigration status is dependent upon on your marriage status, however, a whole new level of stress and emotion is added to the mix. But understanding how divorce and immigration are connected—and the legal issues you’ll most likely be challenged to navigate—can help you avoid those problems that could change the entire course of your life for the worse.
The biggest challenge for conditional residents—those who have received an initial approval of marriage-based U.S. residency, but who have not been married long enough to receive a green card—is proving that their marriage was entered into in “good faith.” This means that the marriage was legitimate, and not a sham just to get a green card. If the marriage lasts two years or more before coming to an end, it will likely be considered a “good faith” marriage. However, more than 40% of marriages end in divorce, 10% of which will end within two years…and immigration status is irrelevant as far as this statistic is concerned.
So, what happens if your marriage falls apart while you are still a conditional resident of the U.S?
It all goes back to being able to prove that the marriage was entered into in “good faith.” This becomes a challenge, though, as most divorce petitions in which immigration status is at stake will include “bad faith marriage” as grounds for the divorce. Even if it’s simply not true.
When a couple petitions for divorce, one of two things happens: the individuals come to a divorce agreement outside of court, or the couple proceeds to court to let a judge determine the outcome. If a couple settles and a judge rules that the settlement is agreeable, it’s incredibly difficult (if not almost impossible) to remove an allegation of “bad faith” from an immigrant’s record. The better choice for the immigrant whose status is in question is to ensure that the divorce case is heard in court, that “good faith” can be proved (even against their spouse’s allegations), and that a judge will issue a favorable divorce decree.
It’s not over then, though. After the court issues a divorce decree, the immigrant still needs to submit the decree along with the Form I-175 to remove the conditions on their residency…and they also need to file a waiver request to eliminate the requirement that they and their spouse file a joint petition. Chances are that your ex-spouse won’t be too thrilled to petition for your residency after going through divorce…
As you can see, divorce and immigration are closely connected…and highly complicated. Having an immigration attorney or divorce lawyer on your team can be a saving grace, and could make all the difference in the outcome of your case. If your immigration status is dependent on the outcome of your divorce, it’s not worth rolling the dice and trying to navigate the system independently. Do yourself a favor and hire a qualified, compassionate immigration and divorce lawyer.
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