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Divorce and Immigration Status

Immigration to the U.S. is a complicated process. It can take years to get a lawful residency and even longer before someone is eligible to become a U.S. citizen. A lot can happen between applying for lawful status and citizenship, including changes in a relationship. A divorce between a U.S. citizen and immigration applicant can mean the loss of legal status or even removal proceedings. 

If you are an immigrant facing a divorce in North Carolina, make sure you understand the process and how you can protect your family. If you have any questions about immigration status and divorce, contact your family law attorney for help.

Legal Status Before Divorce

Your legal status in a divorce may depend on your current legal status. If your immigration status is based on marriage, it may depend on how far along in the process the divorce occurs. 

Green Card Applications

The “green card” is named for the color of the Lawful Permanent Resident status identification. If you have not yet applied for LPR status based on marriage then it may be too late after filing for divorce. Your legal status after divorce will be based on your own status and your visa status (including work visa, tourist visa, or other temporary visa).

If the application process has begun, conditional residency based on marriage is generally for two years. After two years, the U.S. citizen spouse may file a petition for the immigrant spouse to become a lawful permanent resident. 

During the application process, the U.S. Citizenship and Immigration Services (USCIS) may conduct an investigation into the marriage and relationship. The investigation may look into whether it appears the marriage is bona fide, and not a sham marriage. An investigation may look at: 

  • Evidence of the spouses living together, 
  • Copies of evidence showing both at the same address,
  • Evidence of combining finances, 
  • Photos of the spouses together over time, including a marriage ceremony, 
  • Interviews with people who know the couple, 
  • Proof of children together, 
  • Phone records of talking regularly, and
  • Letters, cards, or emails exchanged. 

Waiver of Joint Filing After Divorce

The U.S. citizen spouse generally has to file for legal status of the immigrant spouse. However, the immigrant spouse may request a waiver of the joint filing requirement for permanent residence. A waiver of joint filing can be requested where: 

  • Removal would result in extreme hardship to the immigrant spouse and/or children, 
  • The immigrant spouse or conditional resident child were subject to abuse at the hands of the U.S. citizen spouse, 
  • Death of the petitioning spouse, or
  • Termination of marriage other than through death.

The USCIS understands that marriages fail and couples get divorced. As long as the marriage was entered in good faith, the spouse can seek a waiver of the joint filing request. If there is evidence that the marriage was only for the purposes of immigration and not bona fide, a waiver may be denied. 

In support of a joint filing request waiver, the immigrant spouse may provide documentation and evidence showing the marriage was entered in good faith. If the waiver is based on the marriage ending in divorce, the spouse should also provide a copy of the final divorce decree, evidence demonstrating the end of the relationship, and any other required evidence. 

Filing for Divorce Before U.S. Citizenship Test

Generally, filing for divorce after a spouse has LPR status will not change their immigration status. However, depending on when the divorce is filed, it may extend the waiting period requirement for applying for U.S. citizenship. 

if the marriage lasted for less than three years prior to the citizenship exam, the applicant may have to wait five years before the citizenship exam. If the divorce lasts three or more years, there is generally a three-year residency waiting period before the citizenship exam.

Victims of Domestic Violence and Immigration 

Victims of domestic violence and their children may be eligible for special visa status. If the spouse is under conditional status before filing for a green card, the abuse victim spouse may be able to request a waiver of the joint filing requirement, as above. The spouse may also be able to Petition to Remove Conditions on Residence (Form I-751)

Victims of abuse or domestic violence without lawful status may be eligible for a green card under the Violence Against Women Act (VAWA). Filing Form I-360 for a VAWA green card generally requires providing evidence of the abuse, an affidavit of good moral character, and any other supporting evidence. 

Questions About Business Assets in a Divorce

A business can represent significant assets in a divorce. Talk to your attorney about your options for settling a business in a divorce and how to protect your financial interests for yourself and your family. If you have any questions about filing for divorce in North Carolina, contact the Caulder & Valentine Law Firm, PLLC. Contact us online or by phone at 704-470-2440 today for a consultation.

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