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How Will Divorce or Separation Affect My Lawful Status?

From my colleague, who is one of the most prominent immigration attorneys in Maryland. If your divorce has elements of immigration, this is a must read!

If you are in the U.S. on a visa that was granted based on your spouse's application, a divorce or separation may affect your lawful status and ability to stay in the U.S. You must be careful in choosing whether and when to separate or get a divorce. This article will help you weigh your options.

Will my status be affected?

  1. Divorce or separation may affect the legal status of conditional residents.

If you used your spouse's status (as a U.S. citizen or lawful permanent resident) to immigrate within two years of your marriage, you are a conditional resident. This includes entering the U.S. and adjusting your status while in the U.S.

If you are not certain of your status, you may wish to contact an experienced immigration attorney.

  1. Divorce or separation may affect your status if your status depends on your spouse's status.

Your status may be affected if it is based on your spouse's current visa or pending application. For example, if you are married to an H1B visa holder, and your spouse has an approved adjustment of status application, but the priority date is not yet current, a divorce or separation may disqualify you as a "dependent." In this case, you may not be able to obtain a green card once the priority date becomes current.

What effect does a divorce or separation cause?

The answer depends on your spouse's status, the immigration benefit you received, and how and when you received the benefit.

For example, if you got conditional resident status through marriage, that status is limited to two years. In order to become a permanent resident, you must file Form I-751 (Petition to Remove Conditions of Residence). You must file this form during the final 90 days before the date that the "green card" expires. (The date the "green card" expires is printed on the card.)

Typically, both spouses file this form together, and include documents that prove that they are still married. However, if the marriage has already ended under state law, then you may file the I-751 by yourself by filing a waiver.

A divorce may make it harder to become a permanent resident, but it is still possible. You must show that you married in "good faith." That means that you intended to live together as spouses when you married. To show this, you may submit documents showing that you shared a normal married life with your former spouse. This could include having a joint lease, a joint bank account, joint credit cards, or coverage under the same auto and health insurance policies.

If you already have a green card and are a permanent resident at the time of the divorce, the divorce should not change your status. However, the divorce may force you to wait longer to apply for naturalization. In this case, you would need to wait five years, rather than three.

What is the difference between divorce and separation?

To protect yourself and your immigration status, you must know the difference between divorce and separation. A divorce is when a court legally ends a marriage. Separation, on the other hand, usually allows a couple to remain legally married but live apart.

Divorce law varies from state to state. Some states, including Maryland, have both "absolute divorce" and "limited divorce." (see The Difference between Absolute and Limited Divorce in Maryland) Other states give spouses different rights under an informal separation than under a formal separation. In some states, a formal separation may become a divorce after a certain amount of time.

Regardless of what the spouses intend when they separate or enter a limited divorce, the U.S. Citizenship and Immigration Service (USCIS) or Board of Immigration Appeals (BIA), will interpret state law and decide whether or not a separation or divorce ended the marriage.

If you are facing a divorce or separation, it is wise to find a lawyer who understands how family law affects immigration. It is wise to find a lawyer who has experience with cases like yours and who can help you understand your options.

Source:

Van T. Doan, Esq.
 

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