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Immigration attorney Tina Genovese-Munoz, discusses the impact of divorce on green card applications. The relationship between divorce law and immigration law can be tricky. If you are seeking a divorce and are in the process of getting a green card, you should consult with an immigration lawyer.
Tina Genovese-Munoz, Esq.
Transparent Justice Law Firm, P.C.
100 Merrick Road, Suite 514 West
Rockville Centre, NY 11570
Phone: 516.464.1717
Fax: 516.464.1718
tgenovese@transparentjusticelaw.com
Divorce can have an important impact on a green card application. The most common question is what is the status of my green card petition if my spouse and I get divorced?
The answer depends on where you are in the process. For example, did you have a conditional green card? Or did the divorce get filed before a decision was made on your application? Generally, there will not be an issue if divorce occurs after permanent residency has been granted.
The “Standard” Divorce
Let’s look at a “standard” spousal residency petition where the immigrant spouse entered the U.S. with a visa, never left, and has no legal bars to becoming a resident in the U.S.
Here, the parties have a legitimate marriage, meaning it was not a “green card marriage.” If you divorce before you are granted a conditional green card, then you are no longer eligible for permanent residency. This is because the basis of the petition was marriage to a U.S. citizen which no longer exists.
Now let’s say before divorcing you received a positive decision and were granted lawful permanent residency. Residency based upon marriage to your U.S. spouse is conditional for a period of two years. That means that 2 years after receiving residency you must apply to remove those conditions. You may still be eligible to retain your lawful permanent residency even if divorced during this period. You will need to prove that the marriage was entered into in good faith. A well-prepared application can make all the difference in this situation. So, talk to an immigration lawyer.
Divorce After Permanent Status
Divorce after the request to remove the conditions has been approved will not impact your status. But, you can’t apply for citizenship for five years. A person who is still married can apply in only three years.
Domestic Violence
There is protection under immigration laws for undocumented persons who are victims of abuse. A person abused by a spouse may be eligible for immigration relief under the Violence Against Women Act, or VAWA as it’s commonly known.
You may be able to independently petition for yourself without the abuser’s knowledge, consent, or participation in the process. The U.S. government does not tolerate the misuse of the immigration process to abuse non-citizens. If your spouse is threatening to withhold or withdraw an immigration petition in an attempt to control, coerce or intimidate you could be eligible.
To be eligible for VAWA, an applicant must:
- Be the spouse, parent, or child of a U.S. citizen lawful permanent resident abuser (You may even qualify if your spouse has died, you are divorced, your spouse lost his/her residency status or your marriage was not legal but you believed it to be.);
- You were subjected to battery or extreme cruelty by your U.S. citizen or lawful permanent resident relative;
- You are or have resided with your abusive U.S. citizen or lawful permanent resident relative; and
- You are a person of good moral character.
So even if your divorce terminated your immigrant petition, you may be able to continue the process if you were a victim of abuse. And, as always, victims of domestic violence can also seek out assistance by calling the National Domestic Violence Hotline at 800-799-SAFE (7233) or 800-787-3224 (TTY). The hotline provides immediate assistance such as local resources, shelters, medical services, and more.
