If you are married to a US citizen or Legal Permanent Resident you may be able to gain legal status here in the United States. Further, if you have already gained Residency in the US through marriage, but are now facing a divorce or separation you may still qualify to keep your legal status. Divorce or separation does not have to mean you lose your legal status. It is important to reach out to an experienced immigration attorney to guide you through this process. Here at Dunham & Jones we have the experience to fight for your case and keep you legally here.
Marriage and Immigration
In general, if you are married to a United States citizen or legal permanent resident, and you can prove the validity of that marriage, you can apply for citizenship yourself. There are specific marriage green card requirements and dates that you must adhere to in order to gain legal status by marriage. If you are trying to get your green card or permanent status by marriage contact one of our experienced Immigration attorneys to help you navigate the many dates and forms throughout this process.
Can I get a green card if I marry a U.S. Citizen?
According to the USCIS, if you are seeking naturalization on the basis of marriage to a United States citizen, you must continue that marriage from the time you file until you take the Oath of Allegiance. Additionally, some spousal naturalization provisions require you ‘live in marital union’ with that U.S. citizen for at least three years after the date of the application filing. USCIS defines ‘living in marital union’ as actually residing together. You do not meet the ‘living in marital union’ requirement if you do not live with you citizen spouse at the time of filing or during the time in which you are required to live with your citizen spouse, or if the marital relationship is terminated at any time prior to taking the Oath of Allegiance.
Can I get a green card if I marry a Legal Permanent Resident?
Generally the same rules and process apply to getting a marriage green card if your spouse is a Legal Permanent Resident. However, if your spouse is a green card holder your I-485 application cannot be submitted until the Department of State determines that a green card is available via the visa bulletin.
How do I apply for a marriage green card?
There are typically three steps to applying for a green card as the spouse of either a U.S. citizen or legal permanent resident. The first step is to establish your marriage relationship, step two is to apply for your marriage green card using Form I-485, and the final step is attending the green card interview before approval. Hiring an experienced immigration attorney to help walk you through these steps is very important. Inaccurate or late information can harm your immigration case.
What is conditional permanent residency?
If you immigrated to the U.S. based on a marriage to a U.S. citizen that is less than two years old at the time of your approval you will likely receive conditional permanent residency status. This type of immigration status only lasts for two years. In order for you to gain full permanent residency status you need to file a petition to the USCIS before the second anniversary of your admission. If your marriage is still ongoing at that the time of that petition you should receive full permanent residency status. Alternately, if your marriage is no longer valid on that date you will lose your conditional residency status and ultimately become deportable.
What is conditional residence status?
If you have been married to a United States citizen for less than two years you can achieve conditional residence status. This status is condition for another two years. If, after those two year, the marriage is still valid you could be approved for lawful permanent status without any conditions. Conditional resident status become permanent after the second anniversary of the previous residency status if you and your spouse petition jointly on form I-751. This form should be filed within 90 days of that second anniversary.
Divorce and Immigration
The terrible truth is that many marriages end in divorce. Divorces are ugly by nature and when either person’s immigration status is involved it can be even worse. While there are options for getting a green card and becoming a U.S. citizen through marriage, there are also many ways you can lose your immigration status because of divorce. If you are in the U.S. on a marriage green card and you are getting divorced you need to contact our experienced immigration attorneys right away. You need to understand the impact a divorce could have on your immigration status. As with most aspects of your immigration case, timing is very important when it comes to your marriage green card as well as your divorce.
What do I do if my spouse alleges bad faith in the divorce petition?
In a large portion of divorce cases where immigration status is tied to one of the parties, the other will allege the marriage was made in ‘bad faith’ as a reason for the divorce. This allegation at its core means that one spouse alleges their non-citizen partner married in order to get a green card. This often times happens without much thought on the part of a divorce lawyer and is part of their typical pleadings. Unfortunately, when this language is left in and the Judge accepts the divorce agreement there really is no way to undo it. Once the divorce agreement is submitted and approved USCIS requires a copy of it and will make note of any allegation of ‘bad faith.’ This allegation also means that your spouse cannot sponsor your application. However, there is still opportunity for you to present evidence of a valid marriage. If you are in this situation you need to speak with one of our immigration attorneys right away. We can help you understand your rights and even work with your divorce attorney to make sure your evidence is heard.
What do I do when the divorce is final?
Once your divorce is finalized the divorce decree has to be given to USCIS with form I-751 to remove the conditions on your residence. Additionally, if, at the time your divorce is finalized, you still want a green card, you have to submit a Waiver of the Requirement to File a Joint Petition. This waiver allows you request permanent residency without your spouse’s help. There are several supporting documents that must also be submitted to USCIS. Our immigration lawyers can help you determine what documents you need to submit as well as making sure they are completed accurately.
What if I am undocumented and I get divorced?
Just as marrying a U.S. citizen doesn’t grant you automatic citizenship, divorcing doesn’t automatically mean you will be deported. In fact, divorce courts are not allowed to contact ICE and undocumented immigrants have the same rights as lawful permanent residents to alimony where allowed. If you are undocumented and getting divorced it is important to know that you might also be able to win custody of your children, child support and even spousal support.
How will my divorce change my I-864 Affidavit of Support?
When you apply for a marriage green card, you spouse sponsor must sign an Affidavit of Support(Form I-864) demonstrating that you, as the non-citizen spouse, have enough financial means that you will not rely on the government for financial assistance. This form essentially states that your sponsoring spouse is obligated to financially support you at an amount of 125% or more of the US Poverty levels. However, this obligation ends when you: become a citizen, earn 40 work quarters credited towards Social Security, die or permanently leave the U.S. Your sponsoring spouse’s financial obligation also ends if that spouse dies, but it does not end if you and your sponsoring spouse divorce. In many cases if your sponsoring spouse knows divorce is coming they will withdraw their Affidavit of Support and that withdrawal automatically cancels your permanent resident petition.
What happens to my children if I get divorce but am not a citizen yet?
Typically state laws do not look at immigration status a factor in child custody. They will try rule in the best interest of the children. However, if you have removal proceedings pending that may impact the final decision of who gets the children. Additionally, if you are undocumented your ability to work legally, provide basic necessities like housing and the chance of deportation will all be looked at when determining what is in the best interest of the children. If you are getting divorced while working on your immigration status and there are children involved you need to contact an experienced and qualified immigration attorney. Don’t lose custody of your children because you didn’t know your rights.