Divorce proceedings can present huge obstacles for almost anyone. It is even more so the case when one of the parties is a green card holder. A person in this situation has some special considerations when it comes to divorce. This is especially true when the marriage itself was the basis for the person's legal status. Learn what you need to know before a divorce as a lawful permanent resident.
Your Stage in the Process
To determine your legal status following a divorce, it really depends on where you're at now. The main distinctions to understand are those between residency and citizenship. Your status at the time of the divorce will determine whether you can retain your lawful residency in the U.S.
Permanent Residents
As a permanent resident, a divorce will likely not affect your immigration status. This is due to the fact that USCIS will no longer be reviewing the marriage as part of your immigration file. Yet, if you decide to change your status, i.e. apply for citizenship, you may be subject to further review. At this point, USCIS will take another look at facts surrounding the marriage. The agency will need to determine whether the marriage (and resulting legal status) was fraudulent in nature. If USCIS is convinced that fraud occurred, it's likely your status will be revoked. In addition, you can be subject to removal from the U.S.
Conditional Residents
The situation is a little different for those that are conditional permanent residents. This status usually applies to those that have been married for less than two years. Following the two year period, you can apply to remove the "conditions" from your residency. However, if you divorce while in this time period, it can present some problems. As a divorcee, you will have to file the I-751 (removal of conditions) form on your own. As such, USCIS will want evidence that the marriage was genuine. If you cannot meet this burden, you can lose your lawful status.
The Effect of a Separation
A separation presents some additional uncertainties. When a couple separates, they are legally married but living apart. In Utah, the process is referred to as temporary separation and is found in section 30-3-4.5 of the Utah Code. In this situation, USCIS will look to state law to determine whether a separation is equivalent to a divorce. However, in most cases, USCIS will consider a separation and divorce as one in the same. This is because there is a disruption in the marital union upon which the immigration status is based. Due to this, a legal separation may still affect your immigration status. In any case, it is best to consult with a family law attorney for specific advice.
For more information about family law or child custody matters, contact us at the law office of TR Spencer & Associates.