The Impact of Changes in Family Status on an Alien's Immigration Process Such as
Divorce from, Death of, or Abuse by a USC or LPR Spouse
This information is provided in the most general of terms and is not intended to address any specific case. Please read the Terms of Service before continuing.
Special thanks to diadromous mermaid who authored this FAQ Section.
...skip to Section B, At the Entry Stage Before Applying For Adjustment of Status
...skip to Section C, At the Adjustment of Status Stage
...skip to Section D, Prior to Removing Conditions on Permanent Residency
...skip to Section E, At the Permanent (10-Year) Resident Stage or At Naturalization Stage
Part A ~ General
The marriage-based immigration process can take at least a number of years to complete. But what if the journey is interrupted by a divorce, the untimely death of the US citizen petitioner or even abuse?
Important Divorce laws are complex and the manner in which family law issues are interpreted by each stateâ€™s court can vary. For general divorce information consult a family law professional in your area. The impact of a finalized divorce varies depending on the alienâ€™s immigration status at the time of the event. These FAQs provide information at various stages in the immigration process where the occurrence of a major change in family structure can have an effect on permanent residency. Of course, it is always advisable when dealing with issues related to immigration, to consult a competent immigration lawyer. (https://www.aila.org)
Q: What is a divorce?
A: A divorce is the legal termination of a marriage, adjudicated by the court.
Q: How does an annulment differ from a divorce?
A: An annulment is the legal process that is initiated to declare a marriage invalid. This is accomplished by establishing that the requirements for a valid marriage were not met.
Q: What conditions would permit a marriage to be annulled?
A: State law varies, but as a general rule, in order for a marriage to annulled, the party initiating the action must demonstrate that one or more of the following conditions exist:
--o The parties are closely related to each other by blood
--o One of the parties to the marriage was still married to someone else.
--o A party was below the age of consent. In some states, minors need a court order of emancipation or parental consent to become married.
--o A party was not of sound mind
--o A party was unable to engage in heterosexual intercourse
--o A party was forced to marry through acts of, fraud, trickery, misrepresentation, concealment, coercion or duress
--o The parties failed to follow local procedure with regard to possible requirements for licensing, blood tests, waiting periods and/or witnesses.
If you have reason to believe your marriage is invalid, please consult a family lawyer in your area.
Q: Which types of aliens may be adversely impacted by divorce or annulment?
A: There are situations where the process to secure permanent residency can involve additional or distinct requirements as a result of divorce or annulment. For example, the following situations may be impacted by a divorce or an annulment:
An alien that came to the US on a K visa and has not yet adjusted status An alien that gained residency through marriage to a US citizen, and is still satisfying the conditional, two-year residency period An alien that gained residency through marriage to a US citizen less than a year ago. An alien beneficiary who married the principal immigrant a short time before the couple immigrated, and is divorcing not long after they immigrated. An alien spouse or child of an abusive US citizen or LPR that is still awaiting conferment of legal permanent residency through the marriage that created the relationship. A person who immigrated as the spouse of a person granted asylum, in asylee status, and has not yet been awarded permanent resident status.
Q: If I am divorced or my marriage is annulled, what happens to my immigration status?
A: This depends entirely upon circumstance and the stage at which this event occurs.
Q: I am separated from my US citizen spouse. Is my marriage legally terminated as far as USCIS is concerned?
A: The term "separation" can mean either a physical separation, as in living apart; a "legal separation," recognized by some states where the parties agree in writing on the terms of separation that is accepted by the court; or the time-period required by some states when parties must live apart prior to becoming eligible to divorce.
As a general rule a physical or legal separation does not necessarily constitute a legal termination of the marriage for immigration purposes, even if neither party is intending to cohabitate again. Caveat: There are some situations where a legal separation is a legal termination of a marriage for immigration purposes. This occurs when extant state law automatically converts legal separations into divorce after a specific period of time. New York is an example. If you have any question as to the ramifications of separation in your state, please confer with a qualified immigration specialist.
An alien that is separated, either physically or legally, may need to perform specific requirements for immigration purposes.
... continue to Part B.