Partners who have immigrated to the U.S within two years of their marriage based on either partner being a permanent resident of the U.S.have a basis of concern if their marriage is experiencing troubled times. They are residing in the U.S on conditional terms. Their living in the U.S depends on their marital status.
Troubled times could mean either a divorce or temporary separation.
The terms need to be defined clearly to understand the consequences and the steps they could take to avoid immigration hassles.
What is Divorce or Separation?
i) Divorce is when either partner joined in a union of marriage legally breaking ties.
ii) Separation is when partners mutually decide to live away from one another due to marital problems. The first step towards divorce.
Caution: Divorce laws vary from state to state. The state of Maryland like some other states has limited divorce and absolute divorce.
a) Limited Divorce-is a separation of partners supervised by the court. The grounds of divorce are not valid for demanding an absolute divorce. The couples could amicably unite with supervised help from the court.
b) Absolute Divorce-is the legal dissolution of the union of marriage by the court, decisions related to children’s custody, alimony, and property are decided by the court. The partners are permitted to remarry if desired. Lengthy separation of couples leads to an official divorce.
Awareness of the laws in your state will help you decide the legal status in case of filing for a divorce.
Will my Immigration status be affected?
Ask yourself these questions and find solutions to immigration problems-
- Are you living in the U.S on conditional terms?
- Are you married to a person having an H1B visa holder in the U.S.?
3.Has the date of your green card lapsed?
- How many years have you been living as a ” dependent” in the U.S?
- Have you applied for adjustment of status application?
- Is the priority date not yet current on your application?
The answers will help you choose the course of action in case of a divorce or separation.
When is the Immigration status affected by divorce or separation?
Divorce affects the individual when:
a)The partner has immigrated to the U.S on grounds of a conditional resident (two years) either one is a lawful permanent resident. The one having conditional resident will have to file Form l-751 (Petition to Remove Conditions of Residence) and should be filed 90 days before the expiry of the date printed on the green card.
The form filed when partners were happily married and documents produced included both partners’ names in the eventuality of a divorce, the partner having conditional status must file a waiver after the conditional status period expires.
b) If your spouse an H1B visa holder has applied for an adjustment of status and the priority date is not yet current the divorce will declare you as not being ‘dependent’ on your spouse and it is unlikely that you will possess a green card. On the expiry of the conditional status file Form l-751.
c) A divorce makes it difficult to acquire permanent residency. Documents of a joint bank account, health insurance, or lease prove you married in good faith and may grant you permanent residence.
In case you need legal advice contact an experienced attorney related to immigration issues.