Wednesday, January 5, 2011

How a Divorce Can Hurt Your Immigration Case

Three of the most common times when a divorce can negatively impact a person’s immigration case are: (1) when someone is waiting for their green card (a.k.a. applying to adjust their status); (2) when someone is trying to change a conditional residence status to permanent residence status; and (3) when someone is waiting on their naturalization (citizenship) application.

First, if an immigrant is married to a U.S. citizen and applies for a green card, but divorces the U.S. citizen before the green card is approved, the immigrant will no longer be eligible for a green card. The only exception is when the U.S. citizen spouse was abusive.

Second, as you may know, if an immigrant obtains a green card based on a marriage to a U.S. citizen, and that marriage occurred within the last two years, the green card is conditional and expires after two years. In order to remove the condition, the immigrant and the U.S. citizen spouse must file a petition (Form I-751) within 90 days before the card expires. (The petition must be accompanied by supporting documentation showing that the marriage is not a sham. USCIS will either: approve the petition; request additional evidence; refer the case for an interview; or, deny the petition and refer it to an Immigration Judge.) The petition must be filed jointly; however, if the couple is divorced, the immigrant will file the petition him or herself and seek a waiver of the joint filing requirement, which is only granted if: (a) the marriage was entered into in good faith but was legally terminated; (b) the immigrant’s deportation would cause the immigrant extreme hardship beyond the normal hardship of someone who is deported; or, (c) the marriage was entered into in good faith but the immigrant was abused by the U.S. spouse.

If you are applying for a waiver it is highly recommended that you hire an immigration attorney since this is not a routine application but rather it requires submitting substantial documentary evidence. It is also important to note that the couple can still file the petition jointly if they are separated or their divorce is not yet finalized. But, if the couple files a joint petition and their divorce is finalized before the USCIS has rendered a decision then the petition will be denied and the immigrant will have to file a new petition with a waiver request.

Third, divorce can negatively affect an immigrant trying to naturalize based on a U.S. citizen spouse. For example, in a recent California federal district court case, the plaintiff had applied for naturalization based on his U.S. citizen wife after he had been a lawful permanent resident for three years. However, while his naturalization application was pending, the plaintiff divorced his wife. The court found that the plaintiff was not eligible for naturalization because as a result of the divorce, the 5-year residency requirement for naturalization applied instead of the 3-year residency requirement after becoming a lawful permanent resident. Alenazi v. USCIS No. 09-cv-2053 (S.D. Cal. October 12, 2010).

As you can see, the timing of a divorce can have real consequences in immigration proceedings, which are best dealt with by planning ahead and consulting with a knowledgeable immigration attorney.


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    The grounds for a divorce which a party could raise and need to prove included 'desertion,' 'abandonment,' 'cruelty,' or 'adultery.' The requirement of proving a ground was revised (and withdrawn) by the terms of 'no-fault' statutes, which became popular in the United Kingdom, Australia, the United States, Canada, South Africa, and New Zealand in the late 1960s and early 1970s. In 'no-fault' jurisdictions, a simple, general allegation of 'irreconcilable differences,' or 'irretrievable break-down' with respect to the marriage relationship, sufficed to establish the end of the marriage.
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