Separating after a divorce can be a major life change. However, for spouses who rely on the other's U.S. legal status to stay in the country, a divorce could mean the spouse has to leave the country. Depending on how long the spouse has been in the U.S. and whether the couple has any children, the prospect of leaving the country can be traumatic for the spouse and children.
It is important to understand how a divorce can impact your legal status before responding to a divorce complaint. If you are not a U.S. citizen and facing divorce in Missouri, talk to your Missouri family law attorney about your options for legal status and keeping custody of your child.
Divorce and Green Card Applications
Your prospective legal status after a divorce may depend on the current status of your immigration case. If there has been no visa application based on marriage, then the immigrant spouse will likely have to rely on their individual status in the country. This may depend on whether the spouse came to the U.S. on a work visa, tourist visa, or other temporary visa.
If the legal residency was based on marriage, then the spouse may have conditional residence status for up to 2 years. After the marriage has lasted for 2 years, the U.S. citizen may file a petition to become a lawful permanent resident (LPR). After the initial filing for conditional status based on marriage, the U.S. Citizenship and Immigration Services (USCIS) will generally conduct an investigation into the marriage and relationship between the spouses to confirm the marriage is bona fide.
Waiver of Joint Filing After Divorce
If the marriage ends during the initial 2-year conditional period, the immigrant spouse may lose legal status. However, the immigrant spouse may seek a waiver of the joint filing requirement for permanent residence. There are a number of grounds for the waiver, including:
- Removal would result in extreme hardship,
- Spouse or conditional resident child was subject to abuse,
- Death of the petitioning spouse, or
- Termination of marriage other than through death.
If the marriage was entered in good faith but later terminated through divorce or annulment, the spouse can seek a waiver of the joint filing request. This includes providing:
- Documentation indicating the marriage was entered in good faith and not for circumventing immigration laws,
- Final divorce decree,
- Evidence demonstrating circumstances surrounding the end of the relationship, and
- Other required documentation.
Investigation of a Fraudulent Marriage
If there is any reason for USCIS to suspect the marriage was not legitimate, an investigation into possible fraud may result in losing lawful status, even before the divorce is finalized.
Divorce After Permanent Residency
After an immigrant spouse receives lawful permanent residency, the divorce should not affect his or her legal status. A divorce may extend the requirement for waiting for U.S. citizenship if the marriage lasted less than 3 years prior to the citizenship exam. If the divorce lasts 3 or more years prior to the exam date, there is generally a 3-year residency requirement for citizenship. If the marriage lasts for less than three years, the applicant may have to wait 5 years before the citizenship exam.
Immigration Status with an Abusive Spouse
If you are separating from an abusive spouse, there may be other options available so you can maintain legal status and get away from an abusive relationship. With conditional permanent resident status, the spouse may need to complete a Petition to Remove Conditions on Residence (Form I-751). Failure to file in time may result in a loss of conditional resident status.
However, there is a waiver available if the spouse is abusing you or your child. A waiver of joint filing requirement involves showing evidence of abuse, evidence the relationship was entered into in good faith, a final divorce if the marriage was terminated based on abuse, and any dispositions for criminal charges or arrests.
Additionally, victims of abuse or domestic violence may be able to apply for a green card under the Violence Against Women Act (VAWA). A VAWA green card is available through filing a Form I-360 and providing evidence of the abuse, affidavit of good moral character, and other necessary evidence.
Divorce Help From an Experienced Missouri Family Law Attorney
After living in the U.S. as a spouse of a citizen, a divorce could result in a loss of legal status. Losing legal status in the U.S. could jeopardize your ability to gain or share custody with your child. Cass County family lawyer Joshua Wilson has years of experience handling divorces and keeping parents together with their children. Contact the Joshua Wilson Law Firm today at (816) 331-9968 for a consultation.