By Jason Shore, Divorce and Family Law Attorney

Family relationships are integral to immigration law. Family-based admission into the United States and marital relationships constitute a majority of visas issued each year. Divorce cases that involve someone who has immigrated to the U.S. are also not uncommon.

When a marriage is the reason a person immigrates, obtaining a divorce does not necessarily end that person’s ability to remain in the U.S. prior to receiving permanent legal status.

Conditional Permanent Residence 101

In 1986, congress passed the Immigration Marriage Fraud Amendment in an effort to decrease marital fraud. This included establishing a two-year conditional permanent residence period. If a person is married for two years or less and applies for a green card—also known as a permanent resident card—they receive a two-year conditional green card and become a conditional permanent resident. If they’ve been married for more than two years, they receive a 10-year permanent green card.

A person can travel and work on a conditional green card, just like they can on a permanent green card. Three months prior to the conditional green card expiring, a petition to remove conditions is conducted. At that time, the person holding the card must show they are still in a bona fide, or “good faith,” marriage. This is defined as a genuine marriage based on a mutual desire to share a life together, versus a fraudulent marriage strictly for immigration purposes. If the conditions are successfully removed, the person receives their permanent green card. If a bona fide marriage cannot be proved, then the person’s conditional green card could expire, and they could be deported. For a person holding a 10-year permanent green card, the renewal period is easier and does not require proof of marriage.

Divorce Doesn’t Mean Deportation: Your Options and Rights

If a person who immigrated is going through a divorce—especially a person who is still in their conditional permanent resident period—they are not necessarily at risk of deportation. They may be eligible for a waiver that allows them to stay in the U.S. A waiver petitions to successfully remove the immigrant’s conditions based on a good faith marriage or proof of domestic violence, amongst other things.

• Good faith waiver: A waiver may be granted to an immigrant getting a divorce if they can prove that the marriage was entered in good faith and lawfully terminated, with no fault to their actions. If granted, a good faith waiver helps the person avoid deportation and begin a path to permanent residency. On the flip side, it can be difficult to show that someone entered a marriage fraudulently. If a fraudulent marriage can be proved, one of the most common ways to void the union is via an annulment. An annulment may be requested for various reasons including bigamy and fraud.
• Domestic violence: If a person who immigrated is in a marriage with domestic violence, they have several options to remain in the U.S. Depending on their circumstances, they could file for a Violence Against Women Act (VAWA) petition, a U Visa or asylum. Immigrants who are victims of domestic violence in a marriage can also file for an order of protection (a restraining order). An order of protection is a critical piece of evidence when it comes to seeking safety and staying in the U.S.
• The fiancé visa: Immigration law also accommodates divorce where the spouse who immigrated was admitted on the basis of a nonimmigrant K-1 visa. Also known as the “fiancé” visa, the K-1 allows the soon-to-be spouse of a U.S. citizen both admission and nonimmigrant status until the marriage, which must take place within 90 days of entry. It the marriage is not completed within 90 days, the fiancé can be deported.

Filing for a divorce is not the same as getting a divorce. If your spouse filed for divorce, that doesn’t necessarily mean you have to leave the country. Immigration law has many exceptions and exemptions that allow people to stay in the U.S. even if they’ve overstayed on a visa or entered the country illegally. If you are an immigrant facing divorce, it is important that you seek legal assistance as a first step.

Your Local Immigration Law Attorney

Navigating divorce within the context of immigration law requires a deep understanding of the challenges faced by individuals and families in these situations. I am dedicated to providing compassionate, comprehensive support tailored to your needs. Together, we’ll ensure your rights are protected and your voice is heard. You don’t have to navigate this journey alone—please reach out today.

I can meet you at our offices in Evanston, Chicago, Lake Forest, Oak Brook or a location that’s convenient for you. Request a free consultation or call (847) 868-9584.

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