When a U.S. citizen marries a foreign national, that spouse is placed on a pathway to citizenship. First comes a Green Card, making the spouse a legal permanent resident, albeit with conditions. Later, if all goes well, the spouse can be nationalized, gaining all the rights of a natural-born American citizen.
Since U.S. citizenship is a coveted status, the U.S. Department of State guards against sham marriages arranged only for the Green Card. Thus, when a couple dissolves their international marriage after only a short time, U.S. Citizenship and Immigration Services might suspect a bit of chicanery. The foreign national spouse’s immigration status can be called into question, and any chance of remaining in the United States might be in jeopardy. In this article, we’ll explain the issues and offer some advice about protecting immigration status during an international divorce.
International Romances
In our global age, it’s not unusual for an American citizen to strike up a romance with a foreign national. Some relationships form quite naturally, even accidentally. You might visit a foreign country on vacation or for business, meet someone, and instantly feel some chemistry. Or you might deliberately search for a life partner from a particular country, using an Internet dating service. Video conferencing makes it easier than ever to nurture long-distance relationships until you’re certain this person is the one, and you’re ready to jump through all the U.S. State Department hoops to bring your fiancé(e) to the United States.
If you married a foreign national, or you came to the United States on a K-1 Fiancé Visa, you know the scrutiny the State Department applies to determine if your relationship is bona fide. However, even after obtaining a Fiancé Visa, miles of red tape can unravel before a foreign spouse obtains legal permanent resident status.
The K-1 Visa is a nonimmigrant visa. It does not allow the visa holder to take up permanent residence. If the visa holder wants an “adjustment of status,” there are strict requirements:
- The couple must marry within 90 days, after which the foreign national spouse may apply for a Green Card by filing Form I-485, Application to Register Permanent Residence or Adjust Status.
- USCIS reviews the Form I-485 and other documents the spouse submits. USCIS can request additional evidence proving the legitimacy of your union.
- Both spouses are usually required to appear for an interview.
- Foreign national spouses who have been married for less than two years when USCIS approves their Form I-485 receive a conditional permanent resident (CPR) status and a two-year-valid Green Card.
- To remove the conditional status, the spouse must file a Form I-751, Petition to Remove Conditions on Residence, 90 days before the temporary Green Card expires.
During the two years of conditional residence, USCIS will likely check up on the couple to ensure the marriage is on the level. To overcome this scrutiny, the couple should take steps to demonstrate the legitimacy of their union:
- Document the relationship by taking photos and collecting mementos of shared experiences and special occasions
- Set up joint bank accounts
- Co-sign an apartment lease or buy a home together
- Buy a car together, co-signing the auto loan
- Having children is also powerful evidence that your relationship is real
If your marriage does not appear real to the authorities, you won’t have to wait for a divorce to endanger your immigration status. Nevertheless, until a foreign national spouse receives an unconditional Green Card, their immigration status is tenuous. An early divorce can imperil that status.
How Divorce Places a Foreign Spouse in Danger of Deportation
If your marriage lasts past two years and the foreign national spouse has achieved permanent resident status, a subsequent divorce is unlikely to imperil their Green Card. The divorce will proceed under state law, like a normal dissolution between two Americans.
It’s when you haven’t hit the two-year mark that immigration status becomes an issue. The foreign national spouse is a conditional resident, and the most important of those conditions is that they be married to an American citizen. When the marriage is dissolved, USCIS will consider the foreign-born spouse “out-of-status.” In other words, that person is now in the United States unlawfully. It’s as if they have overstayed an expired visa. The foreign-born spouse is now subject to deportation.
How to Avoid Being “Out of Status” Because of Divorce
Suppose you are a foreign national spouse, headed for divorce ahead of the two-year deadline. You can apply for a termination waiver by filing a Form I-751 before the termination of your marriage. In this form, you reiterate that you entered a bona fide marriage and were not just looking for a quick ticket to America. It helps if both spouses participate in the Form I-751. However, if the American spouse refuses, the foreign national spouse, as CPR, can file solo, citing one of the conditions necessary to remain in the United States:
- Removal from the United States would result in extreme hardship;
- The CPR entered the marriage in good faith, but the marriage was terminated (other than through death); or
- The CPR entered into the marriage in good faith, but the petitioning spouse battered the CPR spouse or child.
In short, the foreign national spouse must show that they formed the marriage in good faith and that returning to the home country or remaining in the marriage would harm them.
After the Divorce: What Becomes of an Affidavit of Support?
For the American spouse, a divorce does not necessarily end their relationship with the foreign-natural spouse. This is because when an American citizen sponsors a spouse for citizenship as an “immediate relative,” they submit a Form I-864, Affidavit of Support. This filing creates two important obligations:
- The sponsor must reimburse the government for any means-tested benefits the foreign national receives over a 10-year period from the filing. The term “means-tested public benefits” includes food stamps, Medicaid, Supplemental Social Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program.
- The sponsor must maintain the immigrant spouse at 125 percent of federal poverty or at 100 percent if the sponsor is an active military member.
These obligations last for 10 years or until the ex-spouse becomes a U.S. citizen. Therefore, the sponsor is potentially liable for the expenses of an ex-spouse who remains in the country after divorce. Retracting your sworn patronage is an additional process you must undergo to rid yourself of this burden.
Of course, no law states that a foreign national spouse must remain in the United States. If that spouse wants to return to their country of origin, the process is much less complicated. However, even if immigration status wasn’t a primary motivation for the relationship, a spouse who is granted residency in the United States would almost certainly want to maintain that privilege. If so, it’s important to consult an attorney with extensive experience in international divorce, who can also manage immigration issues. Call our firm today to learn more.