By Anna Ciardi
An often confusing divorce process can become more complex when one spouse is from a foreign country and not a United States citizen.
It is common for the United States spouse to sponsor the immigration application of the non-resident spouse. This can cause complications when doing through the divorce process, and this situation typically places additional requirements on the immigrating spouse.
If you find yourself in this situation, you should work with both an experienced domestic relations attorney as well as a qualified immigration attorney.
When a non-resident marries a U.S. citizen, the non-resident spouse is typically granted conditional permanent residency status. This essentially gives the non-resident spouse a two-year conditional residency during the marriage.
If the parties are married for two years and still desire to remain married they can together petition Immigration and Naturalization Services in hopes that the foreign spouse will be awarded full U.S. citizenship.
If the parties are married less than two years, then the immigrant spouse will only be granted this conditional permanent residence status, which is not equivalent to full U.S. citizenship.
If a divorce between a U.S. citizen and a foreign spouse is granted prior to the two-year conditional residency period expiring, and the foreign spouse desires to continue their path toward obtaining U.S. citizenship, the foreign spouse has to apply for a termination waiver.
The waiver needs to show that the marriage was entered into in good faith, and not just for the purposes of securing U.S. citizenship for the foreign spouse. Some examples that prove the marriage was entered into in good faith include children being born of the marriage or that the parties jointly held property together during the marriage.
The foreign spouse could also apply for a termination waiver on the grounds that the U.S. citizen spouse abused them or that they would suffer significant hardships should they be deported.
This waiver is intended to be signed jointly by both parties, however, this can be difficult when going through a divorce.
If the foreign spouse is unable to obtain the signature of the resident spouse, then they can still apply for the waiver, but they have to be able to show that they entered the marriage in good faith.
This can be difficult to prove and often results in the foreign spouse continuing under conditional residency status and having to file additional paperwork in order to maintain their residency status.
Affidavit of Support
A U.S. citizen that is marrying a foreign spouse and sponsoring their immigration application will have to sign an Affidavit of Support.
It is important to note that this obligation to provide support to the foreign spouse will not simply terminate upon divorce. Any amount of support owed will depend upon the income and overall financial situation of the foreign spouse.
If a foreign spouse has already achieved U.S. citizenship and is then going through a divorce, their citizenship will not be revoked as a result of a divorce at this point.
Where the foreign spouse is in the immigration process both at the time of the marriage and at the time of an impending divorce can greatly influence the immigration process of the foreign spouse.
When confronted with this situation it is important to work with both an immigration attorney and a men’s divorce lawyer, such as the family law attorneys at Cordell & Cordell.