Divorce Related Immigration Issues


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Divorce proceedings can affect oneís immigration status as well as oneís ability to continue to reside in the United States. In a situation where a personís immigration status is dependent on or interlinked with marriage, things can get complicated soon enough and add stress to an already stressful situation.

If you are dealing with a divorce and are concerned about the effects on your immigration status, consult with an experienced Florida Immigration attorney who would be able to assist you and answer your questions. Below are some frequently asked questions pertaining to divorce related immigration issues:

1. Does physical or legal separation affect immigration status?
A physical separation usually has no effect on a personís immigration. The immigration status will come into question only if the long-term separation eventually converts to divorce.

2. Does divorce affect non-immigrant status?
Individuals who hold the H-4, L-2 or J-2 status and whose immigration is based on the spouseís non-immigrant status can have their status terminated. The person should apply for a separate non-immigrant status before the divorce comes through. It is always advisable to consult with a Florida Immigration attorney as circumstances vary depending on your immigration status.

3. I already have an approved family petition (I-30) based on my marriage to a US citizen. Does divorce affect a pending application for a permanent residency (I-485)?
Yes. As most divorce lawyers in Florida would tell you, eligibility for permanent residency wholly depends upon the relationship with the spouse who is a US Citizen. If the marriage is terminated before the I-485 comes through, then eligibility gets cancelled.

4. Does divorce affect a petition for permanent residency in the US if the immigrant spouse has an employment based immigrant petition (I-140) and the applicantís permanent residency (I-485) is still pending?
Since the applicant is a derivative beneficiary, or a dependant, marriage plays a crucial role in the ability to be granted an I-485. If the marriage gets terminated by divorce, so does the petition for permanent residency.

5. Will divorce affect an applicantís current status as a conditional permanent resident/green card holder?
Yes. Immigrants whose marriages are two years old or lesser get a conditional green card. Usually, after spending two years as a green card holder, the applicant and his / her spouse can file a joint petition to remove the conditional status.
However, for immigrants filing for, or for those who got a divorce, applying for a waiver is required. Such a waiver can be provided if the applicant can prove that:
a. The marriage was entered in good faith, and
b. The applicant is not at fault for the failed marriage.

6. Does divorce affect a permanent residentís (green card holderís) status?
No. once an applicant gets an unconditional permanent residency, divorce cannot affect the applicantís status.

7. Does divorce affect a personís ability to be granted US Citizenship?
Maybe. If an applicant is granted a permanent residency due to marriage to a US citizen, he/she can apply for US citizenship after three years of being a permanent resident. However, if the relationship is terminated before that, then the person has to wait for five years before applying for US citizenship.

8. Does a step-child lose permanent residency that was obtained by his parentsí marriage to a US citizen.
No. the step child will retain permanent residency created by the parentsí marriage so long as the status of the permanent residency is outside the conditional stage.

9. Does divorce end US citizenís obligations who has petitioned and sponsored his / her spouse for immigration benefits?
No. a divorce ends only marital obligations. Financial obligations for immigration have to be borne even after divorce. Financial obligations for immigration can be terminated only if:
a. The spouse gains citizenship, or
b. The spouse completes forty quarters of work, or
c. Death

10. What are the procedures if the spouse with US citizenship believes that the immigrant spouse married solely for gain of immigration benefits?
The US citizen can file for annulment based on the allegation of fraudulent marriage, and a Florida divorce lawyer can assist you with this process. However, if any US citizen applied for a false marriage fraud allegation, he/she is liable for criminal investigation. Immigrants can also defend themselves against allegations of fraud.

ABOUT THE AUTHOR: Nico Apfelbaum
Nico Apfelbaum, Esq. is the managing attorney of Apfelbaum Law, a Florida law firm serving Port St. Lucie, Stuart, the Treasure Coast and assisting clients with matters throughout Florida. Apfelbaum Law provides a wide variety of legal services, including, family law, divorces, business and contract transactions and litigation, immigration, wills and estate planning, probate law, and real estate law. The attorneys of Apfelbaum Law will answer your questions, explain your options, and provide you with the tools and resources you need to make an informed decision.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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