This article is Part 3 in the 3 part series of articles addressing how the timing of a divorce affects a spouse’s immigration status. Previous articles examined how immigration status is affected if one spouse is a conditional lawful permanent resident, and if one spouse is a lawful permanent resident (without conditions). In this article, we will look at how immigration status is affected if both spouses are in the U.S. on “non-immigrant” visas. A marriage in which the spouses both have non-immigrant visas means neither spouse is a U.S. citizen or a lawful permanent resident.
A non-immigrant visa essentially is documentary permission from the U.S. government for a non-U.S. citizen to come to the U.S. for a limited period of time, and for a limited purpose. The most common types of non-immigrant visas are tourist visas or various employment visas. Often, one spouse will obtain a non-immigrant visa to come to work in the U.S. for a U.S. company for a temporary period, such as three years. The employee’s family will be allowed to accompany him or her to the U.S. on dependent visas. It is possible that during that temporary period in the U.S. the couple will experience marital difficulties and one spouse will file for divorce. This may occur after the couple has children who are born in the U.S. Once the divorce occurs, the question becomes, what happens to their respective immigration status, and that of the children?
Consider this example, Steven and Marsha are citizens of the UK. Steven is an employee of MasterCard in the UK. Marsha is not employed. They have one child, Jaime. MasterCard decides to open a new division in Boston and desires Steven to establish the division and hire the U.S. workers to staff the new office. MasterCard will require his services in the U.S. for three years. MasterCard applies for and obtains a non-immigrant visa for Steven for this purpose (an L-1A visa). Because Marsha and Jaime want to accompany Steven to the U.S., they apply for and obtain L-2 visas, which are dependent upon Steven’s status. So long as Steven remains in the U.S. on the L-1A visa, Marsha and Jaime may stay in the U.S. on their L-2 visas. After they arrive in the U.S., Marsha becomes pregnant, and they have their second child, Michael, who is born in Boston. Soon after Michael is born, Steven and Marsha’s marriage deteriorates and Marsha wants to file for divorce. She is concerned, though, about her ability to remain in the U.S. if she obtains a divorce.
Unfortunately, Marsha has good cause for concern. Because her immigration status (her L-2 visa) is dependent upon her marital relationship with Steven, as soon as that marital relationship is terminated, her immigration status also is terminated. This means that as soon as a divorce is final, Marsha’s L-2 status is terminated; she no longer is in valid immigration status, and she must leave the U.S. immediately. Simply filing for divorce will not affect her immigration status; however, upon the divorce being final Marsha automatically loses her immigration status.
Fortunately for the children, their immigration status will not be affected if Steven and Marsha get divorced. Michael is a U.S. citizen because he was born in the U.S., and Jaime still is Steven’s daughter, so she will not lose her status if her parents get divorced. That is little consolation for Marsha, though, because having a U.S. citizen child, or children who are legally in the U.S. does not allow Marsha to stay. If Marsha’s immigration status is terminated, and she is forced to return to the UK, she either will have to take her children with her (and they then would be separated from their father), or the children would remain in the U.S. with Steven and be separated from their mother.
In order to avoid this difficult situation, it is very important that prior to filing for divorce, a non-U.S. citizen contact immigration counsel (or require divorce counsel to do so) to find out how his or her immigration status will be affected by the timing of a potential divorce. The immigration attorney would be able to explore whether any options might exist for the non-U.S. citizen to obtain different immigration status (independent of the spouse), for the purpose of remaining lawfully in the U.S. following a divorce.
Links: Part 1