How Divorce Affects Immigration Status

It’s probably safe to say that being an immigrant in the United States right now is a very tenuous position to be in. For those whose immigration status is dependent on their spouse being a legal citizen, this is called “conditional permanent residence”. Basically, if you’re not an American citizen, but you married someone who is, you’re allowed to stay in United States.

But what happens if you and your spouse get a divorce?
 

Becoming A US Citizen

Conditional permanent residency status lasts for two years. Before that period expires, the immigrant spouse must apply for full permanent residence with the United States Citizenship and Immigration Service (USCIS).

Both spouses must sign and jointly file an I-751 petition to secure permanent residency status. As you can imagine, this process can be more than a little problematic if you and your spouse get divorced before you’ve become a permanent resident.

For the immigrant spouse, once the marriage is dissolved, they can no longer remain on conditional permanent residence status and risk deportation.
 

Getting Divorced Prior To Becoming A Permanent Resident

As with many things involving immigration into the United States, timing is critical. Even if you aren’t divorced when you apply for permanent resident status, a pending divorce could affect your application.

If you’re the immigrant spouse, you’re considered out-of-status as soon as your divorce is complete. Because of this, it’s crucial that you begin and complete the process to become a resident before you get divorced.
 

Separation And Immigration Status

If an immigrant spouse and their partner decide to separate, rather than divorce outright, the immigrant spouse’s status is dependent on the type of separation the couple chooses. Separation typically falls into one of three types: trial, permanent, and legal separation.

Trial Separation: This is an informal separation the can last anywhere from a few days to a few weeks or months. Generally, a trial separation will not affect an immigrant spouse’s legal status or legal rights as a married person.

Permanent Separation: Depending on the state in which you and your spouse reside, a long-term permanent separation may have an impact on the immigrant spouse’s legal status. The timing of the separation can also be a big factor.

If a couple separates soon after the immigrant spouse enters the United States, it could cause problems and prevent them from applying for permanent residence.

Legal Separation: Some states offer a “legal separation” (sometimes called a “limited divorce”). When a court grants your legal separation, you are no longer married, but you aren’t divorced—it’s a separate legal status.

Again, the laws regarding immigration status under this type of separation vary by state. USCIS will review state laws to determine whether the separation (or limited divorce) ended the marriage.
 

After Divorce

The resident spouse (the spouse with US citizenship) is known as the “sponsor” for their immigrant spouse. As a sponsor, that spouse has assumed financial responsibility for their immigrant spouse until he or she becomes a U.S. citizen.

It’s very important to know that sponsorship obligations do not automatically end upon divorce unless the sponsor officially withdraws sponsorship or the immigrant spouse leaves the United States.

For the sponsoring spouse, the safest bet is to withdraw your Affidavit of Support as soon as possible when getting a divorce. Look for a reliable divorce and family law attorney to help with the process and guide you through the details to make sure you don’t end up financially responsible for your ex after the divorce is final.