"The course of true love never did run smooth," wrote Shakespeare in A Midsummer's Night's Dream. While the Bard surely wasn't thinking of American immigration law when he wrote this, he well could have given the bumps in the road (consequences) that divorce can have on a foreign citizen whose immigration status is dependent upon marriage to US citizen.
This post will concentrate on some of the immigration consequences that divorce can have on an immigrant, and critical timing issues related to them. Bear in mind that no immigration lawyer can or should advise the client on basic life decisions such as marriage and divorce. He or she can only advise on the immigration consequences of such decisions, including questions of timing.
When no petition has been filed. Let's start with with a situation where a foreign citizen has married a US citizen (USC) or green card holder (LPR, for "lawful permanent resident") in the United States, but the USC or LPR has not filed any petition for the foreign spouse. Let's also assume that one of the reasons no petition has been filed is because the USC or LPR is using the threat of not filing as a means to control the foreign spouse. (Yes, it happens quite frequently!)
What then will happen if the foreign spouse gets tired of waiting and files for divorce? Does this mean that the foreign spouse can never obtain an immigration benefit by virtue of his or her marriage to the USC or LPR?
The answer is "No, it doesn't." If the USC or LPR has committed provable acts of physical violence against the foreign spouse, or if the USC or LPR's emotional abuse of the foreign spouse rises to the level of "extreme cruelty," then the foreign spouse may have the ability to self petition as a battered spouse under the gender-neutral "Violence against Women Act" also known as VAWA. Despite the statute's name, it applies equally to both genders. I have gotten relief for as many male spouses who were physically or emotionally abused by the USC or LPR spouse as I have for women.
What is important to note is that the foreign spouse's divorce of the USC or LPR spouse does not affect his or her ability to self petition under VAWA. However, a subsequent marriage will. So, if one has a VAWA case pending, you can divorce at your leisure, but shouldn't "remarry in haste." Wait till your VAWA case is over with.
Divorce after obtaining LPR status. The second area where divorce presents complex issues for foreign spouses occurs when the foreign spouse obtains a so-called "conditional green card." Under the law, any foreign spouse who achieves LPR status while the marriage is less than two years old, is obliged to file a petition for removal of conditions (Immigration Form I-751) during the 90 day period prior to the expiration date on the conditional green card (two years after the initial grant of LPR status).
What happens if the marriage breaks up with in less than two years? Does the foreign spouse run the risk of losing LPR status because she or he is not married two years later? The answer is, "Absolutely not." In fact, however strange it may seem sound, if the marriage is going to fail it is better for the foreign spouse that it fail earlier rather than later, so long as the foreign spouse can prove that the marriage was bona fide and remained so up to the point of divorce. Then, a foreign spouse can file an I-751 petition at any time after the divorce is final even if it is months before the expiration date of the conditional green card. Moreover, the only thing that the foreign spouse has to prove is that the marriage remained bona fide to the point where it failed.
The worst situation that a foreign spouse can put themselves in the is to have a failing marriage where the couple is still married during the 90 day period in which an I-751 petition should be filed. Then, because the foreign spouse cannot typically get his or her USC or LPR spouse to join in the petition, the foreign spouse must not only show that the marriage was bona fide and remained bona fide, but also that he or she would suffer "extreme hardship" if there conditional permanent resident status was terminated. This is a much greater burden of proof and is bound to lead to trouble both in the filing of the I-751 and in the time frame for its adjudication by DHS.
Fortunately, DHS has recently changed some of its policies concerning I-751's, so that the foreign spouse can change the designation of marital status in the form from the time that it was originally filed. It should also be noted that although the law requires that an I-751 be filed for the card expires, the immigration service is fairly liberal in accepting late petition so long as there is a reasonable excuse for the delay.
Of course, if the foreign spouse obtained LPR status when the marriage was over two years old, he or she will obtain a 10 year green card and they are free to divorce at any time.
The impact of divorce on naturalization eligibility.
A last consequence to divorce from a USC is the impact that it can have on the timing of the foreign spouse's application for naturalization. Under the law, if one "continuously resides" with the USC spouse it is possible to file for naturalization 90 days prior to the third anniversary of the grant of LPR status based on marriage. However, if the divorce takes place then the foreign spouse must wait normal statutory period to apply apply for citizenship after grant of LPR status, which is five years.
One final point related to divorce. Naturalization applications require that the LPR applicant show "good moral character," during the three or five year period preceding their application for citizenship. However, if the foreign spouse had an extramarital affair during this period, and the affair resulted in the breakup of someone else's marriage, immigration law still considers this proof that the applicant does not have "good moral character," and the applicant will have to wait another five years applying for citizenship again.
Brian D. O'Neill Attorney at Law, LLC
Immigration, Employment and Business Law