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Posted On March 19, 2020

How Immigration Status May Impact Your Divorce

When an undocumented immigrant is married to a U.S. citizen, a divorce may result in loss of the immigrant spouse’s legal residency status and deportation.

Divorce and Immigration Status

When a foreigner or undocumented immigrant marries an American citizen, he/she is eligible to apply for legal residency, a green card, under U.S. immigration laws. Once a green card is issued, the wait to apply for American citizenship is only three years, instead of the normal required wait time of five years. The process is rather simple if the couple is legally married, unless the undocumented spouse has prior violations of immigration laws, criminal convictions, or deportations.

When a married couple decides to divorce, the divorce may impact immigration status, depending on current status and other factors.

Conditional Residency

If the immigrant spouse used his/her spouse’s status as a U.S. citizen or lawful permanent resident to immigrate within two years of marriage, the immigrant spouse is considered a conditional resident. Most people who enter the U.S. in this way adjust their immigration status after entering the country. Conditional resident status is limited to two years.

To become a permanent resident, the spouse must file a Petition to Remove Conditions of Residence within the last 90 days before his/her green card expires. Spouses usually file this form together and include documents that prove they are still married. If the marriage has already ended under state law, a waiver may be filed. 

A divorce can make it more difficult to become a permanent U.S. resident, but it is possible with proper documentation showing the couple married in “good faith.” Indiana divorce lawyers can submit legal documents to the court, such as joint mortgages, joint bank accounts, and joint credit cards that show proof of a legal marriage.

Legal Residency

If the immigrant spouse already has legal residency, a green card, at the time of the divorce, his/her immigration status should not change. However, the divorce may force a longer wait period of five years, rather than three years, to become a U.S. citizen.

Divorce proceedings are handled through divorce lawyers and the U.S. court system. Despite a person’s immigration status, the court can still award spousal maintenance, child custody, and child support to either or both parents, based on the best interest of the child. 

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