Possible Consequence: Loss of Legal Status:
- If one party is a non-citizen, 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 is a lawful permanent resident or a U.S. citizen.
Conditional LPR Card: Definition & Implications
If one party has a Conditional Lawful Permanent Resident (LPR) card:
- Based on a fiancé/spouse application on their behalf, this means:
- The individual was granted legal entry and permission to remain in the United States with a lawful permanent resident (LPR) card for a temporary period of time (2 years).
- During this time, they have a ‘conditional’ LPR card – the conditions being their marriage to the United States citizen.
- After two years the ‘conditions’ are removed, and the LPR individual can apply to receive a permanent LPR card. At that point their lawful 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: they 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: They are 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
- There are seven grounds for divorce specified in Domestic Relations Law §170. Most often, no fault, DRL §170.7 is used.
- 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.
Importance of Documentation or Evidence
- Requests to the court to enforce access to documentation (i.e., foreign passports, joint income taxes and other joint expenses and/or bank accounts, etc.) are important.
- Documentation is often necessary during an immigration application to preserve the immigration status of certain non-citizen spouses and/or children to provide support for a claim of “good faith marriage.”
- Refusal to provide documentation or a lack of access to documentation may result in denial of immigration benefits.