US Visa After Divorce
For non-US nationals in the US, adding to the pressures of separating from your spouse will be your visa status.
If your current status in the US is dependant on your spouse’s status or citizenship, it will be important to understand how your divorce will impact your permission to remain in the US lawfully.
Your status and options will be determined by whether you are separating from your spouse or getting divorced.
A divorce is where the marriage has been legally ended. Separation means the marriage is still legally valid.
Divorce rules differ between different US states and you are advised to take professional guidance on which rules apply for your circumstances as USCIS will interpret state law when determining the legal staus of a marriage.
Divorce before 2 years of marriage
While a divorce will make it harder to become a US Green Card holder, it is not impossible if you file an appropriate waiver. When a non-US national moves to the US to live with their US spouse, they will in most cases be granted conditional status for a period of two years.
For the non-US spouse to be granted full permanent residence on this route, the US spouse would need to file the I-751 Petition to Remove the Conditions of Residence and include documents that prove that they are still married. The form must be signed by both spouses and sent within 90 days to the USCIS in advance of the two-year anniversary.
If you divorce during this two-year period and the joint application for full residency is not made, you will lose their status and Green Card through Marriage eligibility, meaning you can as a result be deported.
However, a number of exemptions to this deportation rule could apply,
which, if applicable, could allow you to file the I-751 by yourself by filing a waiver. In effect, you would be asking USCIS to remove the conditions on your two-year conditional residency.
The non-US national would need to show the US immmigration authorities that:
- The marriage was ended either by divorce or annulment through no fault of your own and that the marriage was entered into in good faith, for example, you owned a home together and had children, a joint bank account, joint credit cards; or
- That you would face extreme hardship if deported; or
- That you were physically abused or treated with extreme cruelty by your spouse.
If you can show any one of these three exceptions, you may be able to have the conditions removed on your two-year status.
If USCIS determines the end of your marriage was your fault eg through adultery or abandonment, it is likely you will not qualify under this ground for exception and your I-751 petition may be denied.
Divorce can also affect immigration status and applications of others, such as dependants and relatives you may have been sponsorsing. Take advice on the circumstances and the options available.
Divorce after 2 years of marriage
If you have already been granted a Green Card, or legal permanent residency, as you had been married for more than 2 years, the divorce should not impact your status.
You would only see an difference if you intend to apply to naturalize as a US citizen, in which you would need to wait five years to become eligible rather than three.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.
Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
