For those who are married to US citizens but are immigrants to the country themselves, divorce can be incredibly complex and difficult to navigate. Accusations that the foreign-born spouse used marriage to facilitate easier immigration to the US are not uncommon. Questions about continued residence in the country or about child custody or spousal support are common ones too.
Divorce for Non-US Citizens
In most cases, foreign-born spouses are sponsored for immigration to the US by their spouse, assuming the spouse is a US citizen. This almost always includes signing an Affidavit of Support at the time of marriage. The support is not automatically revoked at the time of divorce, but it will be reviewed depending on the financial situation of the immigrating spouse. If other relatives have been sponsored for immigration, they are in the same position as the spouse.
In terms of the divorce itself, divorce does not necessarily mean the spouse will be deported or denied citizenship. If they are already in the process of applying for citizenship, they may be able to continue doing so if they acquire a Waiver of Termination to prove that the marriage was in good faith. This is often required for marriages that lasted two years or less. For those who have had children together with their American spouse or who own property together, this waiver is easier to obtain.
Divorce for Green Card Holders
Getting a divorce does not mean the loss of a green card unless the marriage is suspected to have been a fraudulent one. This is a recurring theme in immigration law as this was once a popular scheme for citizens to make money off desperate immigrants by selling sham marriages that expedited immigration. For green card holders, it is somewhat less of a concern because permanent residency has been approved. For those who later apply for citizenship, their files may be examined more closely because of the divorce.
In the case of temporary green cards, the process is more complex and may require additional work at the end of the temporary period to receive a regular green card and permanent residence. This includes obtaining a waiver as mentioned above. The immigrant spouse needs to demonstrate one or more of the following: that the marriage was genuine, that they would endure extreme hardship if deported, or that they experienced extreme cruelty or abuse by the American spouse. Those with a regular green card would have the ability to wait longer to apply for citizenship if they could not meet these criteria.
Proving that a Marriage was Genuine
The immigrant spouse may not have the support of their ex-spouse in this endeavor, making it all the more difficult. The simplest way to support the validity of a marriage is through the presence of children. If paternity is contested, a simple blood or DNA test will confirm parentage. Another way is through joint ownership of property, such as a home or business, during the marriage. Property deeds can be used for this purpose. In the absence of these, the foreign-born spouse must collect other evidence, such as shared residences, bank accounts and their marriage certificate. Periods of separation prior to divorce can have a negative effect on the outcome.
Questions of Child Custody
Children born to US citizens are also granted citizenship. Immigrant parents are only infrequently separated from their children; however, the issue of anchor babies has come up several times in recent years, referring only to children who have two immigrant parents. In fact, the presence of children can often provide evidence that a marriage was legitimate.
In terms of custody, the overarching theme of most custody decisions is the well-being of the children involved. In fact, some states prefer that parents remain within a minimum distance of each other to ensure that the children are able to develop or maintain an active relationship with both parents. Immigration status should not be a factor in awarding custody. If an immigrant returns to their home country in shared custody situations, they must have permission from the other parent. If they have sole custody, they do not.
Immigration status can make a divorce much more complicated. It can also impact the complexity of the immigration process, especially if the divorce occurs before the foreign-born spouse receives his or her green card. While immigration may not directly play a role in child custody decisions, it can determine whether the children can or cannot visit their parent’s homeland prior to turning eighteen.