In our last blog post, we discussed tips for divorcing people who are not US citizens (also known as foreign nationals), and covered a lot of general information about the laws regarding immigration and international divisions of assets. We also touched a bit what happens when you divorce at different points of the immigration residency. Today, we will go over some of the same information, but we specifically want to discuss what the non-citizen can expect to experience because of the divorce process. In a worst-case-scenario, marriage dissolution impacts a non-citizen’s ability to move forward with obtaining permanent residence in the US, but there is much that can be done to avoid this.
Marriage and Immigration Summary
In the United States, an immigrant who is married to an American citizen can apply for citizenship after two years of marriage. During these two years, the immigrant’s status is called a “conditional permanent resident status.” At the end of the first two years, during a 90-day period, the couple can jointly file for a USCIS Form I-751. If all goes well, the foreign national will hopefully receive full permanent residence.
Now that we have summarized the immigration and marriage process, let’s dive into how divorce can affect it.
Divorce During Conditional Residence
If the divorce is finalized before the I-751 form is due, it can threaten the immigrant’s conditional resident status. To avoid residency revocation and the risk of deportation, the immigrant will need to prove that the marriage was genuine (aka – that marriage fraud hasn’t occurred).
To proceed with applying for permanent residency, the immigrant spouse will need to ask USCIS for a waiver of the joint-filing requirement and provide evidence that the marriage was genuine, and that it just didn’t work out. These waivers are honored at the discretion of USCIS and should be supported with evidence.
Evidence should include a written explanation of why the marriage ended, proof of having children together (if applicable), record evidence of shared resources – such as joint bank account statements, joint tax returns, copies of a joint mortgage/ renter’s lease, insurance policies, photos of the couple vacationing together, copies of documents showing that the spouses shared the same last name, etc.
Nonetheless, divorcing might prohibit the immigrant in the relationship from the two-year conditional residency benefit. This means that they would need to reside in the US for five years before they would be eligible for naturalization.
Divorce During Citizenship Applications
If you haven’t filed for divorce, or your divorce isn’t finalized by the time that the I-751 is due, you are still able to file. However, remember, that this is a joint filing form, meaning that your spouse typically signs with you. If your spouse refuses to file the Form I-751 with you, it may be a good time to speak with an attorney who specializes in immigration. At this time, you are still able to request a waiver of the requirement to file a joint petition, but again, it might be best to speak with an immigration lawyer first.
Child Custody and the Division of Assets
We talked about this in depth in our last blog post, but in summary, division of assets is determined by the laws of the country of your choosing, as long as you or your spouse are a legal resident of that country.
There are few international legal standards regarding how child custody and child support should be handled, but most countries agree that the child should remain in the country that they are a legal resident of, and that removing the child from that country would be considered parental kidnapping.
Both in Colorado, and in the history of the US Supreme Court, there are legal precedents that indicate immigrant or resident status does not prevent a parent from having child custody, and that parents have a fundamental right to raise their children. Individual cases can be much more complicated, as courts often look at what is in the best interests of the child when determining custody, which can be difficult for the situations of some immigrant parents, such as if deportation occurs.
We know that these last two blog posts were a lot of information! To summarize, the extent to which a divorce will impact a non-US citizen varies depending on where they are at in terms of the immigration process, and filing for citizenship:
Divorce can prevent the non-US citizen from proceeding to file for citizenship
Divorce can delay the non-US citizen’s naturalization process
Divorce can require the non-US citizen to request a waiver for joint filing the I-751, leaving them vulnerable to the discretion of USCIS
Divorce can require the non-US citizen to provide additional evidence that the marriage was genuine
Divorce can impact the court’s decisions about child custody for non-US citizen parents
At Alexander & Ewert, Attorney’s at Law LLC, we understand that divorce can be incredibly difficult and stressful, especially when adding the complications of immigration laws. This is one of the many situations where it is best to have a lawyer by your side. To get started, give us a call today.