Possible Consequence: Loss of Legal Status
- If one party is a non-citizen of the United States, and is in the United States based on their spouse’s immigration application on their behalf, their legal immigration status MAY be impacted by the delay or the granting of a divorce.
- Judgment of Divorce will NOT have immigration consequences for a person who has a permanent green card or citizenship.
When Divorce Matters
If one party has a conditional green card:
- Based on a fiancée/spouse application on their behalf, this means:
- They were granted legal entry and permission to remain in the United States with a green card for a temporary period of time (2 years).
- During this time, they have a ‘conditional’ green card- the conditions being their marriage to the United States Citizen.
- After two years the ‘conditions’ (their marriage) are removed, and they will receive a permanent green card. At that point their status is no longer dependent on their marriage.
- BUT if they separate, divorce, or the citizen/LPR spouse dies before the conditions are removed, the non-citizen will not be able to remain in the United States in lawful status unless:
- Exception 1: can prove there was a good faith marriage & the divorce is complete by the time they are applying to remove conditions.
- What this means: lengthy divorce proceedings could leave someone without status, can impact their ability to negotiate or proceed to trial.
- Exception 2: no longer in marriage (divorce or separation) because their spouse was abusive towards them: Includes VAWA / BSW (Note timeline and confidentiality issues)
- Exception 3: Death of the US citizen or LPR spouse during the conditional LPR 2-year status
- OR If they have other immigration eligibilities.
Grounds for Divorce
- Most often, grounds for divorce are Domestic Relations Law § 170.7 no fault, but can still use DRL § 170.1 cruel and inhuman.
- Grounds which include battery and/or extreme cruelty, evidence to establish that the marriage was not entered in “good faith” or the marriage is invalid because of “bigamy or polygamy” may result in denial of immigration status and referral for removal from the United States.
Possible Negative Immigration Consequences
- Documents (evidence) are needed to establish “good faith marriage” to preserve immigration status of certain non-citizens and /or children.
- Refusal to provide or lack of access to documentation may result in denial of immigration benefits.
- Requests to enforce access to necessary information are important for immigration purposes (e.g., foreign passports, joint income taxes and other joint expenses and/or bank accounts, etc.)
