Each year, more than 400,000 U.S. citizens marry a foreign national and subsequently file a petition for their spouse to secure permanent residency in the United States. In fact, The U.S. Census Bureau reported that 1-in-5 married households have at least one spouse who was born outside the United States.
Under current U.S. immigration law, a foreign-born spouse married to a U.S. citizen is considered to be an immediate family member. Basically, this means marrying a U.S. citizen places a foreign national in an advantageous position when applying for a green card. However, if the marriage between the foreign national and U.S. citizen were to fail and a divorce was filed, numerous questions and issues arise about how the divorce impacts the immigration status of the foreign national.
Conditional Green Card Status and Divorce
If a non-resident spouse obtained a green card via marriage to a U.S. citizen or permanent resident, filing for divorce creates a significant issue. In this situation, U.S. Citizenship and Immigration Services (USCIS) typically grants a two-year conditional green card to a foreign national who married a U.S. citizen. Why only two years? Because the USCIS wants to validate the proverbial bonds of the marriage (i.e., was the marriage entered into in good faith and is not merely a ploy to secure a green card). Once the two-year probationary period concludes, the couple is required to file a joint petition (i.e., Form I-751, Petition to Remove the Conditions on Residence) along with providing evidence to substantiate the validity of the marriage.
If, on the other hand, at the time of filing a petition (or upon the expiration of the two-year probationary period) the immigrant and U.S. citizen are in the process of getting divorced (or have already divorced), then the immigrant loses their temporary residency status and could be deported.
Renewing a Green Card Following a Divorce
Most immigrants who have a green card would not be adversely impacted by a divorce. Basically, if someone is already a lawful permanent resident with a 10-year green card, then renewing the green card post-divorce is fairly straightforward. Form I-90 (Application to Replace Permanent Resident Card) needs to be filled out and submitted. There are no questions directly related to marriage status during a green card renewal in this scenario. Once someone has a 10-year green card, their marriage status does not directly impact their immigration status.
Affidavit of Support Continues After Divorce
For U.S. citizens who agreed to file an Affidavit of Support to aid their spouse in obtaining a green card, be prepared for a harsh reality when it comes to your support obligations. Specifically, people are stunned to discover they are on the hook to continue providing financial support to their (former) spouse in the event they submit a Form I-864 (i.eAffidavit of Support) to sponsor their immigrant spouse.
Basically, when a U.S. citizen signs an Affidavit of Support for an ex-spouse who in turn applied for a green card, the U.S. citizen continues to be legally obligated to support their ex-spouse at an amount that is approximately 125 percent or more of the U.S. Poverty Guidelines levels. This financial obligation does not cease unless and until the ex-spouse:
- Becomes a full-fledged citizen of the United States
- They can supply documentation reflecting ten years of job earnings
- They permanently depart from the U.S.
- They pass away.
If a U.S. citizen fails to meet the requirements of the sponsorship, they could be subject to legal action by the ex-spouse and could also be asked to reimburse the federal government for certain benefits paid to the ex-spouse, including mean-tested public benefits such as:
- Food stamps
- Supplemental Security Income
As you can see, the ramifications of agreeing to serve as a sponsor for a resident alien, including a spouse, are why it is worthwhile to speak to an experienced and knowledgeable California immigration lawyer to discuss your legal options and chart a path forward.
In summation, here are some key takeaways about the potential legal ramifications associated with a divorce involving a U.S. citizen and foreign national:
- If a foreign national marries a U.S. citizen and gets divorced within the first two years, they run the risk of being subject to deportation.
- Agreeing to sponsor a resident alien, including a spouse, is generally a long-term commitment that does not cease until the resident alien becomes a U.S. citizen, can produce 10 years worth of earnings, departs the U.S., or passes away. The long-term implications associated with being a sponsor, particularly the financial support implications, are serious and warrant a discussion with an attorney.
- If an immigrant has a 10-year green card and is applying for renewal, getting a divorce should not materially impact that process.
Have Questions? Contact Jeremy Castro Today
If you have questions about sponsoring a resident alien, contact Castro Law Offices, P.C. today to schedule a confidential consultation.