If I Get Divorced Am I Getting Deported? A Guest Post on the Intersection of Family and Immigration Law

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Introduction

Today's blog post is a guest post by James Montana, a DC-based immigration attorney who practices law with the Catholic Charities of the Archdiocese of Washington and also conducts his own private practice.  He has agreed to write this post about a topic which I believe I, and most other family law attorneys (especially in the DC area), really need to know more about - specifically the impact of a divorce on the immigration status of a spouse who came to the United States on a spouse or fiancée visa.  Mr. Montana can be reached by e-mail at MontanaLawPLLC@gmail.com or by phone at (888)389-8655.  I have known Mr. Montana for more than 15 years, and certainly feel like he is the kind of person you would want to have fighting for you.

The Problem:  Complex Immigration Laws for Vulnerable People

American immigration law is complex. How complex? As a panel of federal appellate judge once put it, “[w]e have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges. In this instance, Congress, pursuant to its virtually unfettered power to exclude or deport natives of other countries, and apparently confident of the aphorism that human skill, properly applied, can resolve any enigma that human inventiveness can create, has enacted a baffling skein of provisions for the I.N.S. and courts to disentangle.” Lok v. INS, 548 F. 2d 37 (1977).

If you are an immigrant to the United States, you face the same “baffling skein” that confronts our federal judges when you interact with our immigration system, but without our judges’ training and linguistic advantages. You may not be familiar with the American legal system and you may not be a native speaker of English. Keep those complexities and your own potential vulnerabilities in mind as you read this and other written commentary about our immigration system. You are always best-served in these matters by a private consultation with a qualified attorney.

In this entry, I will discuss the effect of divorce on noncitizen immigrants. Family-based immigration is the most common way that non-citizens become lawful permanent residents of the United States, and spousal petitions are one of the most important avenues within immigration law. Marriages do not always work out well, though, and families of mixed origin are not immune to the tragedy of divorce. In addition to the usual considerations in family court, which you would do well to discuss with a family lawyer, non-citizens should consider carefully the potential immigration consequences of divorce. To repeat, you should seek a separate consultation with an immigration lawyer, but, as a general guide, here are a few questions to think about before you seek a divorce.

Are you being abused by your U.S. citizen spouse, or were you abused by your U.S. citizen spouse in the past?

See to your safety first and the safety of any children in the family. Your immigration worries can wait. Call the National Domestic Violence hotline at (800) 799-SAFE, or, if you live in Washington, call House of Ruth at (202)667-7001.

Once you are in a safe and stable place, and you are ready to think about potential avenues forward, consult with an immigration attorney. The Violence Against Women Act offers avenues for relief, including employment authorization and relief from removal, which may help you to get back on your feet and become a lawful permanent resident of the United States. If you are an abused man, the Violence Against Women Act can help you, too; I have been involved in several cases in which abused men sought help and successfully obtained lawful permanent residency through this Act.

Are you on a K-1 visa?

A U.S. citizen may petition for an alien fiancé(e) through the use of Form I-129F. If admitted, the alien fiancé(e) must marry the citizen petitioner within ninety days of admission into the United States, and then the alien must apply for adjustment of status to permanent residency. Otherwise,the alien’s nonimmigrant K-1 visa will terminate, and then the alien will be without lawful immigration status.

If you arrive on a K-1 visa and discover that your fiancé(e) may not be the right person for you to marry, think very carefully about what to do next. The first and best option, from the perspective of the immigration laws, is to seek counseling, work out your differences, and marry as planned. If that is impossible, consider the immigration consequences of not marrying within the terms of your K-1 visa: You will not be able to adjust status to permanent residency, even upon a subsequent marriage to another U.S. citizen; you will not be able to receive employment authorization; you will become deportable from the United States once your K-1 status expires.

Is your adjustment of status application pending?

If you filed an adjustment of status application based on your marriage to a U.S. citizen spouse, and you are now thinking about a divorce, think very carefully indeed. Under most circumstances, divorce will end your spouse’s ability to petition for you, and your adjustment of status application will be denied. You may then be referred to immigration court, where an immigration judge will determine whether you are removed from the United States.

Are you a conditional lawful permanent resident?

If you already have a green card, you may feel safe in applying for a divorce. The degree of safety depends on whether you are a conditional lawful permanent resident or not. You can tell whether you are a conditional lawful permanent resident by looking at your green card approval notice on Form I-797C. You can also take a look at your green card itself; if it is marked CATEGORY: CR1, you are a conditional lawful permanent resident.

If you are a conditional lawful permanent resident, you are obliged to file Form I-751 in the ninety day period before the two-year anniversary of your green card approval date. If Form I-751 is approved, your green card status will become truly permanent. Divorce does not terminate this obligation, and you may apply to lift the conditions of your green card status even if you have divorced your U.S. citizen petitioner. Doing so will require showing (1) that you are divorced, and (2) that you got married in good faith, which can be difficult without the cooperation of your ex-spouse. Tread carefully and seek appropriate legal counsel.

What might your spouse or ex-spouse say to the government if the government called to ask about the marriage?

No matter where you are in the immigration system, divorce can lead to painful questions by the government. Those questions do not always occur in your presence in the interview room; indeed, the government has the right to call your spouse (or ex-spouse) and will do so if the government suspects fraud. Angry people sometimes lash out against an ex-spouse by telling the government that the marriage was fraudulent from the beginning. It is worth discussing, in advance, with your spouse or ex-spouse, what to do if the government calls.

I am satisfied that my immigration status is safe. Can I get a divorce?

Yes, you can. You can get a divorce even if you are not a citizen of the United States. You have access to the U.S. legal system as a non-citizen, and you should not fear arrest by the Department of Homeland Security simply for availing yourself of your access to the U.S. civil court system.

What if I was married in my home country. Can I get a divorce here?

Yes, you can. Talk to a family lawyer about the appropriate procedure in your home state, but know that the U.S. immigration authorities will recognize the validity of a U.S. divorce for the purpose of ending a foreign marriage. Your home country’s laws may differ. Naturally I cannot speak to those.

Conclusion

Divorce is a complex area of law, and it can be even more treacherous for immigrants to the United States. If you need an immigration consultation, please feel free to email me at MontanaLawPLLC@gmail.com or call me at (888)389-8655. If you need a family law consultation, set up a consultation with Samuel Leven, or his firm, by calling (703)281-0134 or e-mailing him at SLeven@thebaldwinlawfirm.com. His firm’s initial consultations are free for up to half an hour!