June 12th, 2018
By: Rachel Zoghlin, Esq., Senior Attorney, Grossman Law, LLC
The process of divorce and separation is trying on all parties. But when one or both spouses are not U.S. citizens, the immigration consequences of the failed marriage may make matters even more complicated. Grossman Law attorneys are well versed on the immigration consequences of separation and divorce, and are available to guide clients through these difficult times.
You may need immigration counseling during the following stages of marriage, divorce, and separation:
Marriage-Based Immigrant Visa Petition
A U.S. citizen may petition for a green card for his/her foreign born spouse. As part of this process, U.S. immigration authorities will interview the couple to ensure that their marriage is "bona fide," meaning generally that the couple loves each other and intends to build a life and a future together. Grossman Law regularly assists couples in preparing both the forms and documentation to help support a marriage-based petition for green card status. We will also prepare couples for their marriage-based interview and assist during the interview if requested.
If a couple separates or divorces prior to approval of the green card application, it will impact the non-citizen's ability to receive his/her green card. Grossman Law assists non-citizen Clients facing these types of issues. Often, this requires a comprehensive consultation to ascertain if the non-citizen is eligible for another alternative basis of obtaining immigration status in the U.S.
Removal of Conditions on Permanent Residency
If a couple has been married for less than two years at the time the foreign spouse's marriage-based immigrant visa (green card) is approved, the green card will be considered "conditional." It will be valid only for two years (rather than for 10 years) and will require that the couple return to US immigration authorities two years later to request removal of the "conditions."
To remove the "conditions" on the foreign spouse's Permanent Residency, the couple must jointly file supplemental evidence of the "bona fide" nature of their marriage, prior to the 2nd anniversary of the foreign spouse's green card issuance. If the couple cannot file this petition together, this process becomes more complicated. It is possible for a foreign spouse to remove the conditions on his/her residency alone, in certain circumstances, including:
- Death - the foreign born spouse must prove that the marriage was valid and bona fide at the time it took place, but the U.S. citizen spouse has since passed away.
- Divorce/Dissolution - the foreign born spouse must prove that the marriage was valid and bona fide at the time it took place, but has since been legally terminated.
- Abuse - the foreign born spouse must prove that the marriage was valid and bona fide at the time it took place, but the U.S. citizen spouse has since abused or battered the foreign spouse.
- Extreme hardship - the foreign spouse must establish that his/her removal would result in extreme hardship, meaning hardship at a level significantly greater than that encountered by other foreign nationals removed from the US. USCIS will only consider evidence arising during two-year period of conditional residence.
Derivative Visa Status
In marriages where both spouses are foreign-born, it is possible that one spouse's immigration status derives from the other. Divorce will nullify the "derivative" spouse's immigration status. When divorcing, the "derivative" spouse will need to evaluate how long s/he has to remain in the U.S. after the divorce is finalized. S/he will also want to evaluate if s/he has any other options to remain in the United States.
For example, consider the hypothetical case of Jane and David - citizens of South Africa who have been married for five years. When USCIS awarded Jane an H-1B visa based on her work as a chemical researcher, USCIS awarded David derivative (H-4) visa status, to enable the couple to come to the U.S. together. David's visa status is based off of his wife's visa, so if Jane and David divorce, David will lose the basis for his visa status and will no longer be eligible for the H-4 visa.
Grossman Law attorneys help non-citizens facing the same situation as David, and help them explore other options to remain lawfully in the United States.
Abused spouses or children who are not U.S. citizens may be eligible for a few different types of immigration relief:
- Violence Against Women Act (VAWA) - where the abuser is a U.S. citizen or Lawful Permanent Resident, the foreign spouse, child, or stepchild may self-petition for an immigrant visa, and may be eligible for lawful permanent residency. VAWA beneficiaries are also eligible for waivers of certain grounds of inadmissibility. Despite the name, both men and women are eligible for VAWA status.
- U-visa - If the abuser is not a U.S. citizen or lawful permanent resident, the noncitizen may be eligible for a different form of relief if s/he contacts law enforcement and assists in an investigation and, if necessary, criminal prosecution. (This relief is available to unmarried domestic partners as well as spouses). The non-citizen must show that s/he is the victim of a certain qualifying crime, which can include domestic violence or felonious assault. S/he must also obtain a certification from the relevant law enforcement agency or court to confirm victimization and helpfulness.
Additionally, a non-citizen who is charged with domestic violence - either criminally or in a civil protective order case - may find him/herself facing removal from the United States. Perpetrating domestic violence is a ground of inadmissibility, which U.S. Department of Homeland Security may use to initiate removal proceedings against certain immigrants.
Compliance with Custody Orders
Violating a custody order and removing a U.S. citizen child from the United States may be considered international kidnapping. A parent who engages in these kinds of actions may face both criminal and civil immigration consequences (if the parent is not a U.S. citizen).
Federal law prohibits a parent from removing a child from the United States, or keeping a child outside the United States to interfere with another parent's custodial rights. If convicted, the parent may face fines and imprisonment for up to 3 years.
Engaging in "international child abduction" also renders a person inadmissible to the United States, and may impact his/her ability to return to the United States, even if the person is a lawful permanent resident.
For more information on how a divorce or separation might affect your immigration status or your family, please visit our website at www.grossmanyoung.com or call our office to set up a consultation: 240-403-0913. We would also be happy to refer you to reputable local counsel who handle divorce/separation matters in Maryland.
Categories: Immigration Law