Family Law, Criminal Defense & Immigration Attorneys

Divorce for Immigrants: What You Should Know

If you are a U.S. citizen or are married to one, how does divorce affect you or your spouse’s immigration status? Keep reading to find out.

Family Based Immigration

To understand divorce for immigrants, it’s important to understand marriage. Family based immigration is a class of immigration statuses that relate to familial relationships. For example, if a migrant is married to a U.S. citizen, their American spouse can sponsor their immigration to the United States. However, the process isn’t simple and there no guarantees with the immigration system.

If you are the spouse of a citizen, you both must be involved in the migration process. There are two ways a spouse can immigrate to the United States: immigrant visa and nonimmigrant visa. Depending on your circumstances and goals, these visas provide different benefits.

Immigrant Visas

Immigrant visas offer the chance for a more permanent launch point for citizenship. The citizen spouse must file Form I-130, Petition for Alien Relative with the Department of Homeland Security. Once they have filed, the immigrant spouse must also organize their documentation to enter the United States on the grounds that they receive immigration status. In general, immigrant visas refer to green cards but even if you do not have full citizenship, an immigrant visa is closer than a migrant visa.

Migrant Visas

Migrant visas are more temporary. The citizen and immigrant spouse must go through the petition process. Like with immigrant visas, the citizen spouse must file an application on their spouse’s behalf. The K-3 visa must be issued in the country where the couple was married, and the immigrant spouse must have proof of the marriage as well. Once a visa is issued, the spouse can immigrate to the United State, but they have extra steps to pursue citizenship. It is still possible to become a U.S. citizen after getting a migrant visa, but the process may take longer.

It is also important to note that the federal government handles marriage visas carefully. “Green card marriages” will not be allowed and to prevent them, immigration agents will test spouses on their relationship to decide whether the marriage is legitimate or a scheme to get citizenship. This also carries over to the divorce process in that the immigration officials will investigate divorces between spouses if they suspect the marriage was false.

How Divorce Affects Immigration Status

The U.S. Citizenship and Immigration Services will not automatically investigate a divorce, but it does raise qu4estions. As such, the period in which you file could have an impact on the outcome of your case and the future of your immigration status. If a couple files for divorce before the I-751 petition is due, the immigrant may be able to stay in the United States, but they will need to file a waiver of the joint filing requirement.

Additionally, if a divorce is filed during the I-751 process and the citizen refuses to sign a joint petition, the case could become very complex. This could potentially jeopardize your immigration status and extend the divorce and I-751 process which may make you vulnerable to deportation.

Children

Children who immigrate with their parent to the United States in a family-based immigration process are generally follow their immigrant parent’s status. In other words, if the immigrant parent retains their status, then so does the child. However, if the parent loses their immigration status and is in danger of deportation then the child could be as well.

In some cases, the child must also file a petition and provide evidence that their parents’ marriage was legitimate but if the child is too young or there is evidence of abuse, then other measure can be taken. For example, the child may be allowed to stay in the United States with a loved one or the state will place the child with another family if no next of kin exist and both parents are abusive.

Takeaway

If an immigrant is already a permanent resident of the United States when the divorce is filed, they are not in danger of losing their immigration status. However, if the spouse applies for citizenship, then their marriage could come into question. Additionally, if divorce occurs during the immigration process, the spouse could lose their status along with any children immigrating with them.

The important thing to understand is that each situation is different and while these are the rules for immigrant spouses, an attorney can help you protect your status and your children during divorce.

Contact Smith Law Offices, LLC for more information.

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