If you sponsored a non-citizen for permanent residence in the United States, his immigration status depends on his marriage to you. This does not necessarily mean, however, that divorcing him will result in deportation or other unfavorable immigration consequences. Whether or not your spouse faces adverse immigration consequences after a divorce depends on the timing of the divorce, whether or not U.S. immigration authorities learn of the divorce, and whether or not the divorce leads them to conclude the marriage was illegitimate.
The "Good Faith" Standard
U.S. immigration law requires that a marriage used as a basis to sponsor a non-citizen for permanent residence have been originally entered into in "good faith," regardless of whether or not it eventually ended in divorce. For immigration purposes, entering into a marriage in good faith does not mean the couple must love each other. The U.S. Citizenship and Immigration Service (USCIS) is even willing to accept a marriage as legitimate if the couple, for cultural reasons, did not meet until the wedding ceremony. A good-faith marriage is simply a marriage not entered into solely for the purpose of obtaining immigration benefits.
Divorce While Permanent Residence Petition Pending
If your divorce is finalized while the permanent residence petition is still pending, the USCIS will revoke the petition if it learns of the divorce and demand your spouse voluntarily depart the U.S. If the spouse fails to depart, the USCIS will initiate deportation proceedings. The USCIS may revoke permanent residence up to five years after it was granted if it discovers a divorce took place before the petition was approved.
Divorcing a Conditional Permanent Resident
If a couple has been married less than two years on the date a permanent residence petition is filed, the non-citizen spouse will receive conditional permanent residence status if the petition is approved. A conditional permanent resident must attend a USCIS interview two years after this status is granted. If the USCIS remains convinced the marriage was entered into in good faith, it will remove the condition and the non-citizen will become an unconditional permanent resident. If a divorce occurs before the interview, the non-citizen may be required to produce evidence the marriage was entered into in good faith. Such evidence may include photos of the wedding, correspondence between the spouses or affidavits by non-relatives that the couple lived together in a marital relationship during the marriage. The divorce itself is not directly relevant, except to the extent the circumstances surrounding it indicate the marriage was not entered into in good faith. A divorce action filed on the day after conditional permanent residence is granted, for example, might raise questions.
Divorcing an Unconditional Permanent Resident
If you were married at least two years before you submitted the permanent residence petition on behalf of your spouse, your spouse will be granted unconditional permanent residence status as soon as your petition is approved. A conditional permanent resident may also "graduate" to unconditional permanent resident status if the USCIS removes the condition after two years. If you divorce an unconditional permanent resident, it is unlikely the USCIS will learn of the divorce since no further interview is required. Even if the USCIS learns of the divorce, it will seek voluntary departure or deportation only if the circumstances surrounding the divorce indicate the marriage was not originally entered into in good faith.
- U.S. Citizenship and Immigration Services: Remove Conditions on Permanent Residence Based on Marriage
- Keen Law Offices LLC: How Do I Prove a Good Faith Marriage?
- Zhang & Associates, P.C.: Marriage Must Not Have Been Entered Into for Immigration Purpose
- FindLaw: Love, Marriage, Greencards and Divorce
- Benson Lee & Associates: Client Cases
- FindLaw: 18 U.S.C. § 3282 : US Code - Section 3282: Offenses Not Capital (Statute of Limitations)
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