Immigrants and Divorce

Immigrants Divorce

Divorce is an unpleasant and unavoidable syndrome of our society. It is a legal minefield for all involved but when one or both parties involved in a divorce is an immigrant to the United States, an entire new layer of complexity is added to this tricky situation. Furthermore, if the immigrant remarries, immigration authorities may administer more than the usual scrutiny upon the new marriage. Divorce and remarriage among immigrants is often looked upon as potentially fraudulent by said authorities. Here is a quick-reference list regarding the legal basics immigrant divorce and remarriage.

• When a divorce is finalized and recognized by the state in which it occurs, the marriage is no longer valid for immigration purposes. This means that a noncitizen who gets a divorce may no longer apply for citizenship based upon marriage. In some states, a legal separation is enough to invalidate the marriage for immigration purposes.

• If a noncitizen divorcee has been issued a green card, they keep their green card. However, if the green card holder was married to a U.S. citizen for less than 3 years and has held their green card for less than 5 years, then the immigrant cannot apply for citizenship until they have possessed a green card for at least five years.

• If a spouse is in the U.S. on conditional residence, divorce makes them unable to remove conditional status and obtain a green card based on marriage and the divorce will most likely result in conditional residence. In some cases, the immigrant can file a waiver of termination that allows them to retain their residence.

• If a couple divorces before the immigrant gets a green card, any children of the immigrant who are not the children of the U.S. citizen cannot get a green card based on marriage.

Sometimes, a married immigrant will come to the U.S., divorce their spouse in their home country to marry a U.S. citizen, obtain a green card and sometimes subsequent citizenship, divorce the U.S. citizen and remarry their foreign spouse to bring them to the U.S. It is a complicated process for sure but it has been documented on many occasions. This sort of situation is a red flag for the United States Citizenship and Immigration Service (USCIS) and will most likely be investigated. If the immigrant is found to have married a U.S. citizen for residence or citizenship purposes, it is considered a sham marriage and consequences thereof apply. These can include denial of immigration benefits such as a green card or citizenship for the immigrant and their foreign spouse and/or children. Also, the perpetrator of a sham marriage is possibly subject to as much as a $250,000 fine and up to 5 years in prison. There is almost no length too great that motivated immigrants will go to gain legal residence in the U.S. and USCIS officials have seen almost every kind of attempt at fraud possible thus far. It is advisable to gain U.S. residence and/or citizenship by legal and honest means.