How does a divorce affect my U.S. immigration status? (Part 1 of 3)

By Paule, Camazine & Blumenthal, P.C. of Paule, Camazine & Blumenthal, P.C. posted in Immigration on Thursday, July 12, 2012.

By Melissa G. Nolan

If a lawful permanent resident, or “greencard” holder, acquired that immigration status as a result of a marriage to a U.S. citizen, there is a chance that the lawful permanent resident status will be lost in the event of a divorce.  This article is part 1 in a series of articles explaining how a person’s immigration status could be affected by a divorce.

A lawful permanent resident (referred to as an LPR) who became a permanent resident before his or her second wedding anniversary to the U.S. citizen is a conditional permanent resident.  This conditional status will be shown on the person’s permanent resident card as the card will have an expiration date of two years.  The condition which is placed on the person’s immigration status is that the couple remain married and in a bona fide relationship for at least two years.  Ninety days prior to the second anniversary of the person becoming an LPR, the couple must file, jointly, an application with United States Citizenship and Immigration Services (USCIS) to remove the condition.  If the couple divorces before this application is filed, they can no longer file the joint petition to remove the condition.  However, that does not necessarily mean that the LPR spouse will not be able to remain in the U.S. following a divorce.

The law provides for limited exceptions to the requirement that a couple remain married for at least two years and file a joint petition to remove the condition.  One of the more commonly used exceptions is for the LPR to file an individual petition following a divorce, requesting a waiver of the joint filing requirement, based upon the fact that although the marriage was entered into in good faith, the couple divorced through no fault of the LPR.  In order to succeed on such a waiver application, the LPR must be able to documentarily prove that the couple had a genuine relationship both before and after they were married.

Unfortunately, USCIS, which is the government agency which processes these applications, tends to consider the fact that the couple divorced before two years as strong evidence that the marriage was not entered into in good faith.  Therefore, the LPR must submit a substantial amount of persuasive evidence to the contrary.  Such evidence might include pictures of the couple together and with relatives and friends, bank account and credit card statements showing both names, mortgage statements or rental agreements with both names, copies of birth certificates of children born to the couple, cards and letters exchanged between the couple, letters from friends or relatives confirming the bona fide nature of their relationship, etc.  In addition, court filings from the divorce proceedings could be drafted to reference the genuineness of the marriage.

In summary, if the LPR is able to provide a substantial amount of documentation to show that the relationship was bona fide and was entered into in good faith and not solely for immigration purposes, then the LPR may be able to succeed on an application to waive the joint filing requirement.  If that application is successful, the condition on the LPR’s status will be removed and he or she will become a permanent LPR.  However, if the couple divorces or separates before the joint petition to remove the conditions is filed and approved and the LPR is not able to provide enough documentation to show the good faith nature of the marriage, then his or her status may be terminated and he or she may be removed from the country as a result of the divorce.

Links:       Part 1

Part 2

Part 3

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Melissa G. Nolan

Melissa G. Nolan

St. Louis attorney Melissa Nolan's practice involves immigration law, as well as estate and tax planning. From helping individual immigrants to ensuring companies' I-9 forms are compliant through audits, Ms. Nolan is dedicated to making sure the laws are followed. Melissa’s estate and tax planning practice includes the preparation of estate planning documents such as wills, revocable trusts, powers of attorney, and health care declarations.
Melissa G. Nolan

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