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Divorcing as an Immigrant? Here’s What You Should Know

As of 2019, there were a recorded 44.9 million immigrants living in America. Of those millions, many are immigrants which are part of a married couple. In that same year, the estimated divorce rate in America was 19.9 divorces per every 1,000 marriages. It is important for individuals to know the rights of an immigrant who wants to obtain a divorce in America. Many immigrants might fear that if they want to divorce their partner, they will be deported as they received their visa through marriage. Understanding what can impact immigration status might be a crucial part of preparing for a divorce.

Length of Marriage is a Factor

When a couple gets married and decides to live in the United States, and one partner is an immigrant, the immigrant spouse receives conditional permanent resident status for two years. Before the two-year anniversary, the couple will need to file a petition with the United States Citizenship and Immigration Services (USCIS). If they are still together after two years, the immigrant will be granted permanent resident status. However, if the immigrant partner is divorcing a spouse prior to filing for his or her application, he or she might lose his or her citizenship status. The length of the active marriage can help to prove that the divorcing partner did not fraudulently enter marriage for immigration purposes, as residency can still be questioned after two years.

What are the Exceptions for Deportation?

It is a common misconception that upon divorce the immigrant partner will immediately be deported, but that is not always the case. The United States does allow for a waiver to be filed for the following exceptions to stop deportation:

·   Proving that the marriage was entered upon in good faith and not just for a marriage visa, this is easier for couples that have had children and invested in their future.

·   Deportation from the United States will cause the immigrant extreme hardship.

·   Whether the reason for the divorce is due to documented domestic violence.

All of these are valid reasons for the immigrant to not be deported upon filing for divorce. A deportation defense attorney would be able to help gather all the necessary proof and documentation. The immigrant may have to decide when the best time for a divorce is, as they will have to gather proof for any of the reasons prior to filing.

Who Else Could a Divorce Impact?

Not only can a divorce delay the immigration process, but it can also affect visa applications for relatives the immigrant was planning on sponsoring. Sponsorships are one of the ways immigrants bring over their extended families and are the reason for 226,000 visas each year. What the immigration status does not affect is child custody and the division of marital property. The courts still place the child with the parent who has the child’s best interest at heart, despite immigration status. It may be in his or her best interest for the immigrant to consult an attorney to help navigate through this difficult process.

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