Divorce in the Middle of the Immigration Process

Divorce in the Middle of the Immigration Process

What happens if you divorce in the middle of the immigration process? Will your marital split affect your immigration status, or will you be able to continue on the path you’re on?

Here’s what you need to know.

Divorce in the Middle of the Immigration Process

Divorce in the Middle of the Immigration Process - How it Can Affect Residency and CitizenshipA divorce in the middle of the immigration process can cause problems with your immigration status – but it doesn’t always have to.

One thing that concerns most people is whether U.S. Customs and Immigration Services will have concerns about a fraudulent marriage. That’s a very valid concern, because if USCIS believes that you married someone only for the immigration benefits, it’s case-closed for you. Naturally, many people who enter into fraudulent marriages for immigration benefits aren’t able to put on the show for very long – and those marriages often end in divorce. USCIS knows that, and if you divorce in the middle of the immigration process, the agency may believe you’re part of a fraudulent scheme to gain U.S. citizenship.

Related: Preparing for divorce: 5 things to do before you file

Stages of Immigration That Divorce Can Affect

There are four stages of the immigration process that a divorce can affect:

  1. After approval of Form I-130. This is the initial petition that starts your immigration process. At this point, you don’t have any immigration rights – but your spouse is the one who must file it, so you won’t be able to take any further steps in the immigration process if you divorce at this point.
  2. After approval of conditional residence. If you’ve already been approved for conditional residence (which only happens after you’ve done an immigration interview), you’ll still have to ask the government to remove the conditions on your green card after 2 years. Usually, you must file for the removal of conditions as a joint petition, and both spouses must sign it. You have to do that to affirm your marriage is valid and continuing. If you can’t, you may still be okay – but you’ll have to prove to USCIS that you entered the marriage in good faith, even though it’s ending now.
  3. After approval of permanent residence. Once the conditions are removed from your green card, you’re a lawful permanent resident. You can remain that way after a divorce, but you’ll encounter issues if you want to become a naturalized citizen.
  4. When you apply for citizenship. If you decide to apply for citizenship, USCIS will review your entire immigration history. If a USCIS agent feels that your marriage was fraudulent, you can expect to have to prove that it wasn’t. If you’re unable to prove it, USCIS can deny your citizenship and refer you to immigration court for removal from the U.S. through deportation.

Related: My husband cheated – what are my rights?

Divorce in the Middle of the Immigration ProcessAlthough a divorce can make it harder to become a permanent resident or a citizen of the United States, it doesn’t have to make it impossible. And while California doesn’t require you to show fault when you’re getting a divorce, providing USCIS with the reason you divorced – such as domestic violence or abuse – can help you along in the immigration process.

(As a side note, abused spouses may be eligible for VAWA protections.)

Separation vs. Divorce in the Middle of the Immigration Process

Some spouses agree to separate during the immigration process. However, if you do so, you’ll still have to prove to USCIS that your marriage was real and that you entered into it in good faith – not just for the immigration benefits. Your best bet is to talk to a Stockton divorce attorney if you’re contemplating either divorce or separation while you’re going through the immigration process.

Related: Is my marriage over? (Video here.)

Do You Need Legal Advice on Divorce in the Middle of the Immigration Process?

If you need legal advice because you’re going through a divorce in the middle of the immigration process, we’re here to help. Call us today at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation.