Posted on January 1, 2021

Immigration Status And Divorce

Getting into the United States is relatively easy. Staying in the United States, legally, is the tricky part. Many people who get permission to remain in the United States beyond the terms of their visa do so by adjusting their immigration status through marrying a U.S. Citizen.

So, what happens to an immigration status after a divorce?

Divorce While Applying for a Green Card Or Permanent Residency

When a U.S. Citizen is married to someone without permission to remain in the United States on a permanent basis, the U.S. Citizen can apply for their spouse to get permission to remain in the United States.

“[A]n alien spouse…shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.” 8 U.S. Code § 1186a(a)(1)

This is not a right of the U.S. Citizen or of the immigrant spouse. “[T]he Constitution does not recognize the right of a citizen spouse to have his or her alien spouse remain in this country.” Almario v. Attorney General, 872 F. 2d 147 – Court of Appeals, 6th Circuit 1989

So, if the U.S. Citizen and the foreign spouse divorce before receiving any permanent status, their application becomes null and void. After all, the I-130, Petition for Alien Relative form’s instructions read that “you may file Form I-130 for…your spouse.” If they’re no longer your spouse, you may not apply for them.

Conditional Residency And Divorce

When a foreign spouse is initially granted permission to remain in the country they are given permanent residency subject to a conditional basis. This is commonly referred to as “conditional residency.”

This conditional basis status is merely a test so that the government can examine the marriage to determine if it was in fact entered into in good faith. If the parties never lived together, etc., there may be a finding that the marriage “was entered into for the purpose of procuring an alien’s admission as an immigrant” 8 U.S. Code § 1186a(b)(1)(a). Such a finding “shall terminate the permanent resident status of the alien (or aliens) involved as of the date of the determination.” 8 U.S. Code § 1186a(b)(1)

A divorce almost always ensures that the marriage was real. After all, why would someone go to the additional expense of divorcing someone they weren’t really married to? Additionally, a divorce decree will outline how the parties are to divide their assets and unwind their lives. The fact that a couple had to unwind anything is indicative that their lives were initially tied up together and is prima facie evidence of a bonafide marriage.

“In order for the conditional basis…for an alien spouse…to be removed…the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Secretary of Homeland Security, [within 90 days of the 2 year anniversary of receiving lawful admission] a petition which requests the removal of such conditional basis” 8 U.S. Code § 1186a(c)(1)

Going from conditional status to permanent status looks like it requires both spouses to file for the removal of conditions together. Obviously, a divorced U.S. Citizen may not want to help their former spouse remove those conditions.

Federal courts have held that conditions can be waived even if the immigrant spouse is divorced.

“If, however, the marriage has ended before the joint petition can be filed, the non-citizen can apply for a waiver of the petition requirement by showing that her marriage was entered into in “good faith” and that the immigrant “was not at fault in failing” to file the joint petition. 8 U.S.C. § 1186a(c)(4)(B). This waiver teaches that a non-citizen spouse is not automatically returned to his or her native country upon divorce. Instead, the statute focuses on the good faith of the marriage, not the marriage’s success or failure.” Choin v. Mukasey, 537 F. 3d 1116 – Court of Appeals, 9th Circuit 2008

The I-751 Instructions for Petition to Remove Conditions on Residence form which removes the conditions ratifies the fact that a divorce immigrant spouse can remove the conditions on their permanent residency without the cooperation of their former spouse. “You may file Form I-751 without your spouse if they are deceased, you are divorced, or you and/or your conditional resident child were battered or subjected to extreme cruelty. You may file this petition at any time after you are granted conditional resident status and before you are removed from the United States.”

The I-751 form goes on to require proof of the divorce. “If you are filing as an individual because your marriage has been terminated, submit a copy of the final divorce decree or other document terminating or annulling the marriage with your petition, along with evidence of the qualifying relationship.”

So, a divorce doesn’t stop an immigrant from removing the conditions on their permanent residency and obtaining full permanent residency in the United States.

Permanent Residency And Divorce

If divorce won’t stop or halt a conditional residency, it certainly won’t do anything to permanent residency without conditions.

The only time a divorce might come up during a permanent residency if is a green card is renewed and there has been a name change due to divorce.

The instructions on the I-90, Application to Replace Permanent Resident Card form require that “you must submit appropriate legal documents that reflect the name change (for example, a registered copy of your marriage certificate, divorce decree, adoption decree, or other court-issued document showing your name was legally changed).”

Citizenship And Divorce

If applying for U.S. Citizenship, divorce will not affect the application but your most current divorce must be noted on the applicat. The N-400 Instructions for Application for Naturalization Form include that the applicant must “[p]rovide a photocopy of your current marriage certificate, divorce, annulment decree, or death certificate of former spouse.”

Annulment And Conditional Or Permanent Residency

As you’ve seen, divorce doesn’t really impact immigration status.

Annulment is another story. If a marriage has been annulled, the immigrant spouse’s permanent residence status will be terminated.

“In the case of an alien with permanent resident status on a conditional basis…if the Secretary of Homeland Security determines, before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that…the qualifying marriage ….has been judicially annulled or terminated…the Secretary of Homeland Security shall so notify the parties involved and…shall terminate the permanent resident status of the alien (or aliens) involved as of the date of the determination.” 8 U.S. Code § 1186a(b)(1)

Most jurisdictions provide for a Petition for Declaration of Invalidity of Marriage. In Illinois (one of the states I practice in), there are four bases under which a spouse can ask that their marriage be declared invalid.

“(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;
    (2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;
    (3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or
    (4) the marriage is prohibited.” 750 ILCS 5/301

Every single petition for declaration of invalidity that I have filed was done under the fourth basis that “the marriage is prohibited.” The reason the marriages were prohibited were always the same: the spouse was already married to someone else.

In Illinois a marriage is prohibited if it is“a marriage entered into prior to the dissolution of an earlier marriage, civil union, or substantially similar legal relationship of one of the parties, unless the parties to the marriage are the same as the parties to a civil union and are seeking to convert their civil union to a marriage pursuant to Section 65 of the Illinois Religious Freedom Protection and Civil Union Act;” 750 ILCS 5/212(a)(1)

A court document showing that a marriage is invalid will be enough to establish that the marriage was “judicially annulled” and, therefore, Homeland Security “shall terminate the permanent resident status of the alien.”

If you’re an immigrant or your spouse is an immigrant and you’re concerned about divorce and immigration status, contact my Chicago, Illinois family law firm to schedule a consultation with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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