Immigration has played a major role in our country’s history and is always an important talking point in politics. While there are people that exploit the immigration system, there are much more honest, caring and genuine people that want to become United States’ citizens. There are various reasons a foreign person may want to become a U.S. citizen, one of the biggest and most important reasons is to be with their husband or wife that lives in America.
While this is an acceptable reason to want to become a U.S. citizen, legally speaking, it is not an easy task to complete. There is also the emotional impact of having to fight so hard and go through so many legal hurdles just to be with your family. Even if everything works out and they receive a visa and come to the United States, the relationship may have changed or been damaged by what they had to do to get here.
So, what happens if a married couple (in which one of the spouses is an immigrant) decides to get a divorce? The answer is filing what is known as an i-751 form. This is an extremely complicated process, because the immigrated spouse received a visa due to their marriage with a U.S. citizen. If you are in a situation similar to this, please contact a reliable divorce attorney as soon as you can. To get in contact with the JacksonWhite Family Law team, fill out a form online or give us a call at (480) 467-4348.
Provisional Visa’s Restrictions in U.S. Marriages
When a person from another country marries someone from the United States, they become eligible for an immigrant visa for a spouse. Acquiring such a visa will allow the foreign spouse to come legally live in the United States with their husband or wife. However, the immigrant visa for a spouse does have it’s limitations.
If you have been married to your spouse for less than two years and are applying for a visa, you will be applying to what is known as conditional residence visa. Conditional residence means that the person receiving the visa is required to reside in the same area that their spouse resides.
The purpose of such a visa is simple, immigration authorities want to ensure that those who are coming in to the country are coming here because they actually love their spouses and want to be with them. When done legally, a green card marriage is a fantastic thing that brings love closer together. When done illegally, a green card marriage is a federal offense that could see the immigrant deported and the American fined up to $250,000 and/or 5 years in prison.
Removing Conditional Residence Restrictions
While the law requires that your residence be restricted when first coming to the United States, it will not be this way indefinitely. You can receive permanent residence after the marriage has been valid for 2 years, because this is when the conditional residence visa for a foreign spouse will become expired.
A permanent resident visa is only available to a foreign spouse that has been married to an American spouse for a period greater than 2 years. However, if you have a conditional residence visa, 90 days before the expiration of the green card the married couple becomes eligible to apply (must be done together) for permanent residence for the immigrated spouse. Once you have become a permanent resident, both spouses are no longer required by law to reside in the same place.
If the couple fails to apply for permanent residency within the 90-day window, then they will have to reapply for a visa and the immigrated spouse may be deported.
Divorces and Conditional Residence Visas
Even spouses that are willing to relocate to another country can face relationship issues, some issues cannot be fixed and the relationship may end in a divorce. In such a situation the spouses would split up and not live together anymore, thus making the conditional residence visa invalid. Before the divorce is finalized there are some very important things to consider:
- Is the immigrated spouse planning on remaining in the United States?
- If there are children in the relationship, what is their citizenship status?
- How will marital assets, debts, child custody and child support be handled?
Divorce attorneys are experts at understanding what all legal documentation should be covered before a divorce is finalized and will be your best support in making sure life after divorce is set up for you to succeed. This holds even more true in cases that involve an immigrated spouse.
The I-751 Form
A person who has this form approved is able to move to any location in the country, even if it is separate from their spouse. To be approved for such a form, the one spouse must show that the marriage was entered into in good faith, but due to circumstances such as death, spousal abuse, or divorce, the marriage is over and the one spouse who has arrived from another country would still like to stay without restrictions.
This form can also be used by children whose parents have come to the country but are now getting divorced. If, for example, a woman who had a child married an American citizen and the two came to the United States to live with the man, yet the marriage ended in divorce, the child could still petition the United States government to be able to remain in the country.
The I-751 form is also used for those who come to the United States as a couple and have sought to become American citizens. Many times, a husband and wife may decide that they would wish to move to the United States together and have found that they would like to have complete freedom of mobility.
How Divorce Affects I-751 Petitions
While the spouse coming from another country likely entered into this marriage with the best of intentions, the reality is that things can occur that can lead to the end of that marriage. Not every couple stays together, and the government has made it so that those who have come here in good faith still have the opportunity to live here in the United States and move around the country freely even after the divorce. As long as they abide by the law then there really should be no issue standing in their way.
However, what happens to a couple that has filed the I-751 jointly and is now undergoing divorce? The couple came together from a foreign nation and so what does it mean to their status at this point?
Divorce After Filing I-751 Form Jointly
An interview may or may not be part of the process, it varies depending on the situation. If you do have to come for the interview, then inform the interviewer that you are currently undergoing a divorce. Have all documentation with you when you go to the interview. The important thing to understand is that divorce or pending divorce does not necessarily stand in the way of you receiving Form I-751.
The important thing to do if you are in a situation like this is to consult an attorney that handles immigration proceedings. The last thing you want is to have this waiver blocked for something beyond your control. An attorney can help you navigate the system and keep you here in the United States and free from restrictions.
Call the Family Law Team at (480) 467-4348 to discuss your case today.