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IMMIGRATION AND DIVORCE

Many people in our community are married to foreign nationals and through the marriage wish to obtain U.S. citizenship for their immigrant spouse. However, divorce can often intervene prior to the completion of the naturalization process. What can happen when the divorce commences and what can the immigrant do to continue the process to obtain lawful permanent residence and ultimately naturalization and U.S. citizenship? For purposes of this article, we will assume the immigrant spouse has no other available immigration status (such as an employee-based visa or student visa, etc.) other than a spouse visa arising from the marriage to the U.S. citizen.

If the marriage has continued for less than two years when the immigrant spouse entered the United States, the immigrant spouse will be given the status of ‘Conditional Permanent Resident’. This status is valid for two years and the couple can expect U.S. Citizenship & Immigration Services (‘U.S.C.I.S.’) to revisit the marriage in two years thereafter to ensure the marriage is valid and is not a ‘sham marriage’. A sham marriage exists when it is determined by U.S.C.I.S. that the couple married merely for the purpose of obtaining permanent residence status for the immigrant spouse and did not live together like a married couple. Typically, sham marriages occur when the immigrant spouse marries a U.S. citizen in exchange for payment or other unlawful favors. This is a very common scenario in South Florida and elsewhere.

To become a ‘Lawful Permanent Resident’ (i.e., a ‘green card’ holder), the immigrant spouse and typically the citizen spouse must file a Petition to Remove Conditions on Residence (the U.S.C.I.S. Form I-751) along with proof that the couple is still married. Note that the immigrant spouse can file the I-751 by himself/herself if the couple has divorced, but a waiver must be requested. Again, the key is to satisfy the Federal government that the marriage was not a ‘sham marriage’.

If the marriage ends in divorce before the conditions attached to the Conditional Permanent Resident status are completed, there is the possibly that the immigrant (now ex-) spouse may be deported. Note that there are exceptions to the possibility of deportation and a waiver must be filed by the immigrant ex-spouse to avoid this. Some of the circumstances that may justify the waiver of deportation: That the marriage was entered in good faith and was not a ‘sham’; That the immigrant ex-spouse was abused, battered or subject to extreme cruelty by the citizen spouse (i.e., a domestic violence scenario); or that the immigrant ex-spouse already had a ‘green card’ (‘lawful permanent residence’) at the time of the divorce. (Note that the divorce may raise the waiting time for naturalization – i.e., obtaining citizenship – from three to five years.) It is critical that the immigrant ex-spouse, even if still in the divorce process that is not finished, consult with a competent immigration lawyer. As you can see, an immigrant spouse’s ability to obtain permanent residence status (the ‘green card’) depends on where the immigrant spouse is located in the divorce process.

If the divorcing couple have non-citizen immigrant children there are other rules that apply. The advice of a competent immigration attorney is warranted to ensure the children’s immigration status is secured.

Our office works with immigration counsel to ensure your immigration status is secured if possible. THE KEY TAKE-AWAY: Please contact our office once the divorce case has begun.

 

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  • Coral Gables Office
    Gables International Plaza, 2655 South Le Jeune Road
    Suite 700
    Coral Gables, Florida 33134
    Phone: 305-461-5015
    Fax: 305-461-5102
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