-
The Impact of Changes in Family Status on the 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.
Part C ~ At the Adjustment of Status Stage
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?
Q: What Section of the Immigration and Nationality Act pertains to this stage?
A: Section 245, INA § 245, addresses the adjustment of status of nonimmigrant to that of person admitted for permanent residence.
Q: We filed for adjustment of status. Must I remain married to my spouse until the I-485 is approved?
A: Yes. Generally speaking, in cases where a spouse was the petitioner in an I-130 application, if the marriage terminates by divorce before the adjustment of status is granted, the beneficiary will not be eligible for permanent resident status through this relationship.
Q: My marriage is ending before adjustment of status is submitted, or approved; can the children that accompanied me stay in the USA?
A: No, neither the beneficiary nor derivative beneficiary will be eligible for permanent resident status through this relationship unless the alien can qualify under VAWA provisions. Children of the self-petitioning beneficiary can be included in the petition even if they, themselves, are not victims of abuse. (More on the VAWA petitioning process featured later on in the FAQs).
Q: My US citizen spouse and I divorced before the I-485 adjustment of status application was approved. Am I still eligible for adjustment of status based on my prior marriage to the US citizen?
A: As a general rule, the regulations require that the marriage be viable. If the marriage terminates by divorce or annulment before the adjustment of status is granted, the beneficiary will not be eligible for permanent resident status through this relationship. It is strongly advised that an alien consult an immigration specialist if faced with this dilemma. If the beneficiary began the process as a K visa holder, then adjustment will not be possible other than through the initial US citizen petitioner. An exception exists if an alien was subject to abuse and qualified under the VAWA provisions.
Q: In the event of a divorce before AOS is approved, does the child of a beneficiary (USC stepchild) lose immigrant status obtained by the marriage of the alien parent to a US citizen?
A: Yes. The alien child derives immigrant status from the marriage of the principal alien beneficiary and the US citizen. Upon divorce, the relationship the alien child has with the petitioner ends insofar as immigration is concerned. Since this occurred before the adjustment was approved, the alien child is not eligible for adjustment of status based on this relationship, unless the beneficiary has already filed and is eligible for battered spouse or child provisions of VAWA.
Q: What happens if we filed the adjustment of status application, but my US citizen spouse will not attend the interview?
A: In complex situations like this one, it is always advisable to confer with a competent immigration attorney. If the spouse refuses to cooperate and accompany the alien spouse to the interview, a non-viable marriage may not necessarily be fatal to the approval of the petition. It may be possible to self-petition under VAWA. Lack of physical battery does not necessarily preclude a self-petition as an abused spouse under the very liberal immigration laws. Strong evidence of the bona fide nature of the marriage would be required and although the marriage may be non-viable, absent evidence of a sham marriage, a petition cannot be denied simply because the parties are not living together.
... continue to Part D.