Why Filing for Divorce May Help Your Immigration Case

Divorce is a difficult decision for everyone. Divorce is an especially hard choice for couples when one or both of the spouses are immigrants. According to Asian Journal, the good news is that there are four ways in which divorce can actually help immigrants obtain their green card.
Married daughters and sons of US Citizens
For immigrants who seek legal permanent resident (LPR) status based on a family-sponsored preference (F3) by a parent who is a US citizen – and based on being a daughter or son who is a married 21-year-or-older daughter or sone – there is normally a long time to wait for approval depending on your country of origin. In some cases, it may take decades before your application is reviewed. Your application’s priority date is typically the date your US citizen parent(s) filed your petition.
If you divorce your spouse, then your category for review is based on your single status, not your married status. This means your status is now First preference (F1) and not F3. The wait times for F1 petitions usually are much shorter than the F3 wait time. In some cases, becoming single may move you to the front of the line so you can request your green card (LPR status) immediately.
Married daughters and sons of legal permanent residents
In this scenario, your divorce means your petition should be categorized as a Family-based second preference (F2b) category if you are 21 years old or older. If you are under 21 years of age, you should be categorized as a Family-based second preference A (F2a).
If you marry after your parents petition for your approval based on their LPR status, the petition on your behalf is automatically revoked – the instant you get married. Generally, you can’t use a divorce to reclaim your single “eligible” status (and thus use the earlier priority date – based on the original petition). However, your parents could file a subsequent petition after your divorce is final. The open question is which priority date will apply – the date of the first petition or the date of the subsequent petition. An experienced Texas immigration lawyer can explain your rights and how the priority date is likely to work.
Conditional legal permanent residents and marriages don’t work
Suppose you obtain LPR status based on marrying a US citizen, and you were married for less than two years. In that case, the LPR status you receive is considered “conditional legal permanent residence,” which is only valid for two years. To remove this condition, you and your spouse must sign and file a petition before the two-year period ends. Otherwise, the LPR spouse will lose his/her status.
Difficulties can arise if the marriage isn’t working. It may be challenging to communicate and work with your US citizen spouse. If you and your spouse aren’t on speaking terms (or your spouse isn’t cooperating), that situation can present problems. If a USCIS I-751 interview is required, your US spouse may refuse to sign the I-751 documents or may not show up to the I-751 interview.
By filing for divorce, you can seek a “waiver” of the original joint petition to remove your conditional LPR status – on the argument you did marry in good faith. In order to request the waiver, you must file for divorce. The timing of the divorce filing is critical. If you wait too long after the marriage falls apart to file for divorce, your two conditional LPR window may disappear. The waiver can be used to lengthen your LPR status every year until your case is reviewed.
Aliens who are married in non-immigrant visa situations and “without status” situations
If you enter America as a non-immigrant who is married but separated, a divorce action may create new options if you meet a US citizen who becomes your significant other. Some countries don’t have divorces. People from those countries may come to the United States to start fresh after they separate (though they’re still married to their foreign spouse). Once the residency requirements are met, you can file for divorce in the United States.
The idea is that a US citizen spouse can file a petition for you, which can enable you to adjust your status to an LPR – even if you overstay your visitor status.
A foreigner who was never inspected can adjust their LPR status under the INA (Immigration and Nationality Act) if they are grandfathered in – under 245i and other conditions are met.
Speak with an experienced immigration and family law attorney
At Lyttle Law Firm, our Austin and San Marcos family lawyers represent US citizens, residents, visa holders, and others. While divorce is normally upsetting, there are situations where a divorce can actually help you become a legal permanent resident or retain your permanent residency status. We provide legal advocacy for residents of Travis, Hays, Comal, Williamson, Bell, Caldwell, Burnett, Llano, and Guadalupe Counties. Call us at 512.215.5225 or complete our online form to schedule an appointment.

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