Considerations for Citizen and Non-Citizen Divorce
Considerations for Citizen and Non-Citizen Divorce
Many non-citizens marry U.S. citizens, yet, non-citizens have the opportunity to obtain legal permeant residence in the United States though their U.S. citizen spouse. While the paperwork and documents are sent into the USCIS to process whether or not a non-citizen can obtain legal permanent residence, the couple needs to prove to the USCIS that their marriage is valid and not for the purpose of obtaining a green card.
Conditional Permanent Residence
Conditional permanent residence is given to a non-citizen if their U.S. citizen spouse petitions for them. Conditional permanent residence may terminate the immigrant if the marriage was found to be a scam or was held for the purpose of obtaining a green card. Nevertheless, with conditional permanent residence allows the immigrant to have the same rights as the permeant resident.
Obtaining Legal Permanent Residence Through Marriage
A U.S. citizen can petition for their non-citizen spouse to obtain a two-year temporary conditional green card. Following the two-year period, the green card holder can file form I-751 with the USCIS to remove the conditions and become a lawful permanent resident with a ten-year green card. Only if their marriage is still intact the non-citizen is able to apply for the ten-year lawful permanent resident.
Divorcing Before the Two-Year Mark
If the marriage is broken before the 2 years are up, then the immigrant spouse will lose his or her immigrant status and become deported. To not be deported, the non-citizen is able to petition for a waiver that can allow him or her to remain in the United States. For this to happen, the non-citizen spouse must prove that:
- The marriage was entered in with good faith and was valid. It was not entered for the purpose of obtaining legal permanent residence. If the couple has children or a joint owned property it proves that the marriage was entered in with good faith.
- The non-citizen would face extreme hardships if deported back to his native country.
- If the non-citizen was abused, assaulted, or treated with extreme cruelty by their U.S. citizen spouse.
Divorcing After Two Years of Marriage
If a non-citizen and a U.S citizen divorce after two years of marriage, the non-citizen will not be faced with deportation if he or she has obtained legal permanent residence status. Those who obtain legal permanent residence and is accused of crime may be deported. A divorce may cause a delay in obtaining the non-citizens citizenship. If the couple is intact after two years of marriage, there is a three-year residency requirement in order to take the citizenship exam. But, for those that are not married after two years, they are required a five-year residency to take the citizenship exam.
Contributed by Svetlana Prizant, an Award Winning New York Immigration Lawyer:
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