Marital status and immigration status are often closely linked for California immigrants. If you are going through a divorce, you may fear how this change will impact your immigration status and ability to lawfully remain in the United States.
A divorce will not automatically end permanent resident status, and its impact depends heavily on your current visa or green card, whether abuse was present in the marriage, the length of the marriage, and other factors. While divorce may not mean that you need to leave the country, it likely does mean that you need to complete additional steps to maintain your immigration status.
A divorce attorney in San Mateo can work closely with your immigration attorney to help you navigate the divorce in San Mateo courts and protect your rights under federal immigration laws.
Understand Divorce and Immigration Status Under California Law
How does divorce affect immigration status? The impact largely depends on the non-citizen spouse’s current immigration status.
It is also important to remember that California has a six-month waiting period for divorce, which may interrupt or interfere with immigration proceedings in some cases. Your immigration case may remain pending during this period.
Conditional Permanent Resident Status
Non-citizen spouses often obtain conditional permanent resident status when they marry a U.S. citizen or permanent resident. They receive a two-year conditional green card, and they can then file Form I-751 to remove the conditions on residence within the 90 days before the two-year conditional period ends. This involves a joint petition between both spouses.
If the couple divorces before filing this petition, the non-citizen spouse may still file a waiver to remove the conditions on the marriage-based green card. Usually, a successful waiver would require strong evidence of one of the following:
- That the two spouses entered the marriage in good faith, meaning that they genuinely intended to build a life together, even though the marriage ultimately ended in divorce
- That the non-citizen spouse was subjected to abuse or extreme cruelty by the U.S. citizen or permanent resident spouse
A few options are available for non-citizen spouses who suffered abuse or domestic violence. The Violence Against Women Act (VAWA) allows a non-citizen spouse abused by a U.S. citizen or permanent resident spouse to self-petition for immigration relief without their partner knowing or needing to cooperate. U visas are also available for victims of certain crimes who have experienced abuse as a result of the crime and are aiding the investigation of the crime.
Permanent Resident Status
Non-citizen spouses who already have permanent resident status in the form of a 10-year green card do not need to anticipate that a divorce will change this status. You can retain your status after the divorce as long as you continue to meet the residency requirements, and you do not need to rely on your ex-spouse to renew it jointly with you.
However, your wait time to apply for U.S. citizenship may change. Spouses of U.S. citizens follow the three-year rule. Instead, you would need to wait five years from the date you originally received your resident status.
You may also face additional scrutiny during naturalization to ensure that you entered your marriage in good faith and not just for immigration benefits.
Dependent Visa Holders
If you are a dependent visa holder, meaning you depend on your spouse’s sponsorship to remain in the United States, divorce may cause you to lose this status. Your options are generally to switch to a different visa category or leave the country.
Similarly, if your dependent visa or conditional green card is still pending, your application may be denied in the event of divorce, as you would no longer have a qualifying relationship. However, you may still have options through a VAWA self-petition or other types of visas.
Step-by-Step Legal Process in San Mateo Courts
It is understandable to be concerned about how divorce may affect your immigration status. Planning ahead can help you prepare for possible outcomes and take steps to protect your status.
- Assess your current immigration status: This will determine your options and next steps. Your immigration lawyer can advise you on potential consequences of divorce. Meanwhile, your divorce attorney can explain how your immigration status may affect the divorce proceedings and outcomes.
- Gather evidence and protect your rights: Collect evidence to show proof that you entered your marriage in good faith, such as joint bank account information, lease agreements, tax returns, photos from your wedding, etc. You may already have some of these documents prepared as part of your divorce proceedings. If you are filing a VAWA self-petition or U visa petition, you will need evidence of abuse, such as DVRO records, police reports, medical records, or declarations from reliable witnesses.
- Submit immigration filings and waivers: With the help of your immigration and divorce attorneys, submit the necessary waivers or petitions.
Also, be aware that non-citizens have full family law rights in California courts regardless of immigration status.
Critical Factors That Impact Your Case Outcomes
How does divorce affect immigration? The answer depends on a range of factors, including:
- Your immigration status and its dependence on your spouse or marriage
- The strength of your evidence showing that you entered the marriage in good faith or that you suffered abuse during the marriage
- Whether or not you qualify for any special protections, such as VAWA protections
- Whether your spouse remains cooperative with immigration proceedings, such as by attending immigration interviews or providing the necessary documents
- Your legal counsel and their knowledge of San Mateo divorce proceedings, federal immigration law, and other relevant statutes
Speak With a Divorce Attorney in San Mateo
If you and your spouse are discussing divorce and your residency status depends on your marriage, now is the time to meet with both an immigration attorney and a divorce attorney who is knowledgeable about immigration. At Viola Law Firm P.C., we represent clients through divorce while doing everything we can to protect their immigration status during the process.
Whether you are wondering how divorce affects immigration status or the difference between legal separation and divorce, we can answer your questions during a consultation. Call 650-343-6400 today.
