"The American dream still is attainable, but as an immigrant going through a divorce, you need to be the one to attain it for yourself."
The uncertain future surrounding immigrants in the United States can be intimidating. The unpredictability of life itself can cause a great deal of anxiety and stress for someone new to the United States. The cultural differences and all of the new people can make one’s day to day feel like an adventure unto itself, and adding marriage into the mix can make life an intense rollercoaster of an experience.
However, divorce also can be an experience of the same intensity, especially for an immigrant from another country and another culture. For most of us in society, we only hear about green card marriages and gaining grounds to stay in the United States through that avenue, but rarely is the topic of divorce in immigration cases discussed. Just like divorces among citizens, divorces among immigrants and citizens happen, and it is up to the legal system and its procedures to sort it out.
Green card regulations
According to the U.S. Immigration, a resource website dedicated to help people with immigration-related topics and questions, when a divorce involving an immigrant is finalized and recognized by the state in which it occurs, the marriage becomes invalid for immigration purposes. This translates to ineligibility for applying for citizenship based on their marriage, and in some states, legal separation is enough to create that invalidation.
If the immigrant who divorces a U.S. citizen has been issued a green card, they get to keep the green card. Although, if they were married to the citizen for less than three years and have held the green card for less than five years, the immigrant cannot apply for citizenship.
Furthermore, conditional residence also is impacted. If the immigrant used their ex-spouse’s status as a U.S. citizen to immigrate within two years of the marriage-based green card interview, the immigrant is a conditional resident, according to The People’s Law Library of Maryland.
The I-751 form
Within a three-month period before the two-year conditional permanent residence ends, an I-751 form needs to be filled out. If the couple is in the divorce process but not yet officially divorced, a waiver request needs to be filed. The United States Citizenship and Immigration Service will issue a request for evidence (RFE), asking for a copy of the final divorce decree or annulment.
The I-751 petition needs to file jointly with the RFE, as well as a copy of the final divorce decree or annulment, as well as a statement stating that the immigrant would like to have their joint filing petition treated as a waiver. The United States Citizenship and Immigration Service will amend the petition to indicate that eligibility has been established for a waiver of the joint filing requirement based on the ending of the marriage, once they receive the final divorce decree or annulment within the specific time period.
One thing for the immigrant to look out for is ways of losing their residency status. One of the most popular ways that immigrants lose their residency status is visiting their home country, according to Avvo. As much as visiting family and friends sounds like an amazing experience, it jeopardizes U.S. residency statuses, especially if the filing of the I-751 is called into question. Then, a conditional permanent resident becoming a legal permanent resident will not automatically occur.
Even if the I-751 is filled out, the immigrant still can be subject to the removal process if it is not properly filed. According to United States Citizenship and Immigration Services, if they fail to file the I-751 form that removes the conditions on the residence within a 90-day period before the second anniversary as a conditional resident, the conditional resident status will automatically be terminated and the removal proceedings will begin. In addition, a notice will be given, stating that the immigrant has failed to remove the conditions, and a Notice to Appear will be given with a hearing scheduled.
At the hearing, the immigrant may review and rebut the evidence against them. The immigrant, not the United States Citizenship and Immigration Service, is responsible for proving that they complied with the requirements. If they have proved in writing to the director of the appropriate Service Center that there was good cause for failing to file the petition on time, the I-751 can be filed after the 90-day period.
The United States Citizenship and Immigration Services also has special protocol, accommodating immigrants whose U.S. citizen ex-spouses abused, battered or subject to extreme hardship. The joint filings requirements that couples involving an immigrant spouse, can be waived as well, based on evidence.
Find resources to help
If you are an immigrant divorcing a U.S. citizen, understand that this isn’t the end for you. You still can achieve everything you sought to achieve, coming to this country. Entering into this complicated legal situation with a sense of hopelessness will only distract you from what you need to do.
The American dream still is attainable, but as an immigrant going through a divorce, you need to be the one to attain it for yourself. Find an attorney to aid you with your immigration issues, and make sure that you protect yourself in this divorce.
Dan Pearce is an Online Editor for Lexicon, focusing on subjects related to the legal services of customers, Cordell & Cordell and Cordell Planning Partners. He has written countless pieces on MensDivorce.com, detailing the plight of men and fathers going through the divorce experience, as well as the issues seniors and their families experience throughout the estate planning journey on ElderCareLaw.com. Mr. Pearce has managed websites and helped create content, such as the Men’s Divorce Newsletter and the YouTube series, “Men’s Divorce Countdown.” He also has been a contributor on both the Men’s Divorce Podcast and ElderTalk with TuckerAllen.
Mr. Pearce assisted in fostering a Cordell Planning Partners practice area specific for Veterans, as they deal with the intricacies of their benefits while planning for the future. He also helped create the Cordell Planning Partners Resource Guide and the Cordell Planning Partners Guide to Alternative Residence Options, specific for seniors with questions regarding their needs and living arrangements.