How does a divorce affect my U.S. immigration status? (Part 2 of 3)

By December 31, 2017Immigration
By Paule, Camazine & Blumenthal, P.C. of Paule, Camazine & Blumenthal, P.C. posted in Immigration on Tuesday, July 31, 2012; updated December 31, 2017.

By Melissa G. Nolan

This article is Part 2 in a series of articles discussing the effect of a divorce on an individual’s immigration status. Part 1 in this series addressed the effect of a divorce when one of these spouses is a Conditional Lawful Permanent Resident (CPR). This article will focus on the effect of a divorce when one of the spouses is a Lawful Permanent Resident (LPR) who never was a CPR or who already had the condition removed.

If an individual is an LPR, without conditions, as a result of a marriage to a U.S. citizen, that means either: (1) the couple was married for at least two years at the time the spouse obtained the LPR status; or (2) the LPR was previously a CPR, but the couple already has filed a petition with United States Citizenship and Immigration Services (USCIS) to have those conditions removed. If the spouse is a LPR, then he or she is in a much better position with respect to his or her immigration status following the divorce than a CPR as discussed in Part I of the series of articles.

When a LPR divorces his or her spouse, generally the LPR status will not be affected by the divorce. However, the ability of that spouse to apply for naturalization may be affected. When an individual obtains LPR status through marriage to a U.S. citizen, and if that couple still is married two years and nine months after the date the spouse became a LPR, he or she is eligible to apply for naturalization at that time. However, if the couple divorces before the LPR becomes a U.S. citizen, then he or she must wait an additional two years to apply for naturalization. This means that if the couple divorces, the LPR will be eligible to apply for naturalization four years and nine months after becoming an LPR, assuming all of the other eligibility requirements for naturalization also are met at that time.

It is important to keep in mind, however, that at the time the LPR applies for naturalization, USCIS will review the process by which the LPR achieved that LPR status. If the couple is divorced at the time of the naturalization application process, USCIS may ask questions about that prior marriage in order to determine whether the marriage truly was bona fide and not entered into solely for immigration purposes. Depending upon the circumstances of the particular case, a USCIS examiner may make the determination that the marriage was not bona fide. USCIS could deny the LPR’s naturalization application on that basis.

In addition, separately from adjudicating a naturalization application, USCIS may revoke the LPR status on the basis of a fraudulent marriage. If a U.S. citizen spouse contacts USCIS and alleges that the marriage was entered into solely for immigration purposes, USCIS may begin an investigation into the prior adjudication of the application for LPR status and may make a finding that the marriage, in fact, was not bona fide. In addition to losing LPR status, an individual who has been found to have committed immigration fraud (which would include an individual who entered into a marriage with a U.S. citizen solely for immigration purposes) may face criminal prosecution and may be removed from the U.S.

In conclusion, although a LPR is in a much better position than a CPR if the couple divorces, the LPR is not completely immune from the effect of the divorce. Therefore, if you are a LPR and are contemplating a divorce, you should review these questions with an immigration attorney to determine how your immigration status might be affected. Contact us today for more information.

Links:

Part 1

Part 2

Part 3

Disclaimer

Melissa G. Nolan

Melissa G. Nolan

Melissa Nolan's practice involves immigration law, as well as estate and tax planning. From helping individual immigrants and businesses wanting to obtain visas for employees, to ensuring companies' I-9 forms are compliant through audits, Ms. Nolan is dedicated to assisting clients with the complexities of immigration. 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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