Divorce and Immigration: when divorce filings can affect your legal status

     When you file for divorce, you must state a date of separation. In Pennsylvania, no-fault divorces are granted one of two ways: (a) both parties agree after a ninety (90) day cooling off period, or (b) after one year of separation, whether or not the other party agrees. It may seem like a good idea to use one method or the other, but under immigration law, divorce and the date of separation can have some major complications.

Qualifying as a dependent, derivative or family-based preference

     Most visas have sub categories (H1B-H4, F1-F2, etc.) for dependent family. Family, however, only includes spouses and children. If a non-citizen spouse is in the United States on a dependent visa and he or she obtains a divorce, the visa will be legally invalid and return to the U.S. (or, sometimes, adjustment) will not be possible unless a new visa is obtained. Similarly, if a derivative asylee divorces and attempts to adjust based on the ex-spouse’s grant of asylum, the adjustment will likely be denied. If a derivative asylee files for divorce and lists the date of separation before the asylum-spouse obtains asylum, he or she may face lengthy questioning by USCIS.

     Divorce, however, can also have strategic benefits. Under the family-preference categories, married children of U.S. citizens face a long backlog for immigrant visas. If a married child of a U.S. citizen obtains a divorce, he or she ‘bumps’ up to a first-preference category. First-preference categories have much shorter wait times for an immigrant visa. The date of separation is irrelevant; the only thing that matters is whether a child of a U.S. citizen is married or not married.

Proving the marriage was real

     For example, if a non-citizen spouse gets her two-year green card on January 1, files for divorce and alleges a date of separation of January 2 and a joint I-751 Petition to Remove Conditions on Residency is filed two years later, allegations of marriage fraud may arise. Another example is using the separation date to obtain a quicker divorce. For example, let’s say a couple has been married for one year and three months, but separated only two months ago. If a citizen spouse wants to obtain a quick divorce, he may claim the date of separation was one year ago, allowing a quicker divorce. If the non-citizen spouse does not challenge this, it may affect her ability to claim the marriage was ‘bona fide’ (real), since the couple seems to have separated shortly after marriage. Although rare, it is examples like these where a defendant spouse should challenge the date of separation in the courts. 

Qualifying for naturalization and VAWA relief

     Even during the naturalization or VAWA process, the date of separation can have serious qualification consequences. A non-citizen spouse may use the expedited path towards citizenship by filing for naturalization three (3) years after obtaining residency. This is only allowed for couples who are still married and living together as husband and wife at the time of the interview. If USCIS finds evidence of a divorce finalized before an I-751 was approved, currently pending divorce or early date of separation, the N-400 will likely be denied. Likewise, a VAWA application requires certain elements, like proof of living with your U.S. citizen or L.P.R. spouse and proof of a bona fide marriage. If an applicant files for divorce on January 1, but provides documented proof of living together after this date, it may hurt the credibility of the applicant.

Bigamy – a big no no

     Then there is the legally sticky situation of bigamy. Bigamy is an illegal concept of being married to two people at the same time. It is not only a criminal offense, but an inadmissible immigration offense.

    In Pennsylvania, however, bigamy can be cured by divorce. So, for example, if a couple was married, but the U.S. citizen spouse thought his ex-wife was dead, but she was not, his current marriage will be valid on the date he obtains a legal divorce from his ex-wife. This will protect the non-citizen spouse in any future immigration proceedings, although it may inadvertently force the issuance of a two-year conditional green card rather than a ten-year green card.

     Before you file for divorce or sign any divorce paperwork, it is important to understand the legal consequences if you are a non-citizen. Feel free to call or email me today to discuss your options.