Obtaining a green card through marriage is the second most common method of family-based immigration to the United States. This method falls under the broad visa category of family-sponsored immigration, which means American citizens or permanent residents must initiate the petition process for their foreign spouses, fiancés, or fiancées. The sponsorship aspect of this method assumes the couple will stay together. However, marriages don’t always last forever, so applicants need to learn about what could happen if their marriages fall apart.
Immigration & Civil Status
Two fundamental requirements of marriage-based immigration are admissibility and the marital bond. When foreign spouses obtain visas that allow them to live in the U.S. during the application process, they’re deemed to be admissible, and there’s an assumption this status will continue throughout. The same can be said about the marital bond. It must have been formed in good faith and remain that way until the applicant is approved for permanent residency.
A marital bond can be broken through personal action, legal separation, or dissolution. Let’s say a Vietnamese man is being sponsored by his American wife in California. If they can’t stand each other after a year of marriage, the following scenarios may unfold.
Permanent Residency Status
If the couple gets divorced after the applicant receives a green card that’s valid for 10 years, nothing happens because the permanent residency status always takes precedence. The same can be said if the aforementioned couple or their San Diego immigration attorney files USCIS Form I-751, Petition to Remove Conditions, and receives approval even if the Vietnamese husband hasn’t received his green card yet.
If the couple has lived together in California for less than three years before the divorce is finalized, the applicant will have to wait the full five years of residency in the U.S. before becoming eligible to apply for the naturalization benefit.
Conditional Residency Status
One of the advantages of marriage-based immigration is that an applicant can get a conditional green card in just a few months. During the two years of conditional residency, foreign spouses can work, study, and even travel abroad for a few months. However, the foremost condition is that they don’t break the marital bonds they’ve forged with their sponsors. If the bond is broken during the conditional period, there’s a chance the applicant could not only lose legal immigration status but also receive a Notice of Deportation.
It’s important to note that a divorce doesn’t automatically signal the end of immigration benefits. Circling back to our example of a Vietnamese husband, he may still be able to pursue removal of conditions through an individual I-751 petition, but a waiver must be obtained to this effect, and the best way to do so is through an immigration law firm. If the marriage lasted for a year in good faith, such a waiver shouldn’t be too difficult to obtain. If for some reason it isn’t granted, a reconsideration can be pursued all the way to the Board of Immigration Appeals. Needless to say, the waiver request must make sense. If the Vietnamese applicant in this case is the one who filed for divorce just so he could enter another relationship, the chances of a positive outcome will be diminished.
For more information on issues such as citizenship, naturalization, and family-based immigration, San Diego residents should reach out to the experienced immigration attorneys at KS Visa Law. Call us today at 858-874-0711 to schedule an appointment.
